Was church legally bound to report child abuse?

State high court case brings up gray area between 2 laws

Concord Monitor/November 16, 2004
By Annmarie Timmins

The state Supreme Court is refereeing a civil dispute that could determine how churches balance their obligation to report suspected child abuse with their right to keep parishioner confessions confidential. State law requires the reporting and exempts spiritual conversations but does not resolve how the two intersect.

At issue are the claims of sisters Heather and Holly Berry, who allege their Jehovah's Witness congregation in Wilton ignored their mother's complaints that their father was sexually abusing them. After the police inadvertently learned of the abuse, Paul Berry was convicted of assaulting Holly in 2000 and is serving 56 to 112 years in state prison. (Prosecutors dropped charges involving Heather after Berry's sentencing.)

The sisters followed the criminal case with a civil lawsuit in 2001, naming their father and the church. Their attorneys appealed part of that case to the Supreme Court last year after a judge ruled the church was exempt from reporting the abuse because the details had been revealed in confidential conversations. The rest of the case is on hold pending the Supreme Court ruling.

In their appeal, the sisters' attorneys, Janine Gawryl and Jared O'Connor of Nashua, said the judge's finding essentially negated the mandatory reporting law in favor of religious privilege. Among those awaiting the court's ruling are lawmakers, who have been unable to resolve that conflict themselves with legislation.

"Everyone we spoke to said there was an inconsistency and a need to fix it," said Rep. Mary Stuart Gile, a Concord Democrat who helped write a law last year that proved unsuccessful. She is holding off a second try until the high court rules. "It makes it easier if the Supreme Court can deal with it."

Even the state attorney general's office could not answer the discrepancy question for Gile when she met with staff last year. In a letter to Gile, the office concluded that state law and minutes from the discussion that created the law are ambiguous.

Gile is also hoping this case will quiet complaints that legislators intervened in the issue to attack the Catholic Church. The discrepancy between the two state abuse laws came to light during the clergy abuse scandal in 2002, when the public learned priests had not been reporting child abuse to the authorities.

According to court records, Paul Berry, formerly of Greenville, abused the girls sexually and physically in the 1980s, when they were between the ages of 3 and 10. In one case, he was accused of hanging Holly by her wrists from hooks on a barn wall. When their mother, Sara Poisson, reported the abuse to church elders between six and 10 times, they told her to "be a better wife" and to pray more, the records said.

State law, which existed at the time, requires anyone who learns of or suspects child abuse to report it to the authorities. Another state law, however, which also existed at the time, exempts clergy from reporting abuse when they learn of it in a confessional or other confidential conversation.

Judge William Groff of Hillsborough County Superior Court, who is presiding over the civil case, concluded that the church did have an obligation to protect the girls from the abuse. "The prevention of sexual abuse of children is one of society's greatest duties," he wrote last year. "In this case, to impose such a duty places little burden on the (church.) The burden requires only common sense advice to the church members and the reporting of the abuse to the authorities."

Yet Groff also found that state laws exempted the church from ultimately reporting the abuse because it came to the church's attention in a private conversation between Paul Berry, an elder himself, the girls' mother and three other church elders.

In the Jehovah's Witness church, the elders were allowed to tell other church members because everyone in the church is considered an ordained minister. But they were not allowed to tell authorities outside the church, the court records said. They also told Poisson not to report it, according to the records.

The police ultimately learned of the abuse when another of Poisson's children arrived at school with the imprint of a flyswatter on her leg, according to the court file. A state child care worker investigated and learned of the other abuse, according to the court record. Poisson said she was rejected by the church when she decided to cooperate with investigators.

Attorneys for the sisters and the church are fighting the case on several fronts, and it's possible the Supreme Court could decide the case in a way that does not speak to the gray area between the mandatory reporting law and the law allowing religious privilege. The justices could, for example, agree with the church attorneys' claims that the case should be dismissed because it falls outside the statute of limitations.

Other questions before the high court include the right of attorneys in a civil case to obtain church records for their research. The church's lawyers argue that material is protected by the Constitution. Also on the table is the way the Jehovah's Witnesses define ministers and confidential conversations.

O'Connor, one of the attorneys representing the sisters, argued the case before the high court late last month and said most of the justices' questions pertained to the discrepancy between the mandatory reporting law and the religious privilege.

A ruling is expected to take several weeks.