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Sunday, Nov 29, 2020

Will a Church Get Away With Making a Teen Listen to Recording of Her Rape?

Will a Church Get Away With Making a Teen Listen to Recording of Her Rape?

The victim was 15 years old when she says church elders called her into a room with her mother and stepfather, sat her down, and made her listen to a recording of her own rape. A lifelong Jehovah’s Witness, the girl-who we’ll call Anna-says she was sexually assaulted by an older church member on multiple occasions.
But when the church learned of it, they decided to investigate not her assailant, but her-for the crime of having sex outside of marriage. And now it’s down to the Utah Supreme Court to decide if they should get away with it.

The court cases rests on the question of eccleiastical abstention, or whether the court can intervene in matters of religion. The Kingdom Hall of Jehovah’s Witnesses of Roy, Utah, claims it was engaging in regular religious practice when it forced the teenager to relive to her own rape. And so far, the courts have agreed. But lawyers for the woman, now in her late 20s, argue that their conduct is so “utterly intolerable” that it transcends this rule.

"Whatever ‘autonomy’ the Establishment Clause confers on religious authorities,” the lawyers wrote in a brief to the court, “it does not provide them with a constitutional right to subject a minor to an audio recording of her own rape.”

Anna says she first met her 18-year-old assailant through a mutual friend, and that they all decided to go to the movies together one night in 2007. But on the day of the movie, the friend didn’t show up, leaving Anna to get a ride home with her assailant. In the car, she says, he stole her phone and refused to give it back until she kissed him on the cheek. When she refused, he kicked her out of the car and drove away, only to circle back later to pick her up. When he dropped her off at home, he made the same demand again. This time, when she refused, he drove away with her phone in hand, leaving it at the restaurant where her sister worked for Anna to retrieve on foot.

What happened next reads like something out of a horror movie. Anna claims her assailant, with the help of their mutual friend, abducted her on multiple occasions and drove around for hours with her bound, gagged, and blindfolded in the back seat of his car. Later, he showed up at her house late at night and ordered her to get in his car, threatening to harm her friends and family if she didn’t.

On multiple occasions-sometimes while armed-he drove her to a parking lot and forcibly kissed her, groped her, and ultimately raped her over the sound of her protests, she alleges. The culmination of the abuse occurred when her assailant twice drove to her house, climbed through her window, and raped her on her bed, the court papers say. According to her complaint, the last assault lasted between one and a half and two hours.

Jehovah’s Witness congregations are overseen by elders, who are tasked with adjudicating any complaints of wrongdoing. When news of what happened to Anna reached her congregation's elders, they formed a four-person Judicial Committee to investigate not her assailant, but her, for possible immoral sexual acts. According to her complaint, they questioned her for 45 minutes about the encounters, including whether or not they were consensual. Then, they turned to more aggressive techniques. With her mother and stepfather present, the four elders began playing a recording of one of the encounters that her assailant had made without her knowledge, pausing it at random points to pepper her with questions.

Upon hearing the recording, her lawyers wrote, Anna “physically trembled, and pleaded with the elders to stop forcing her to relive the scarring experience. They did not stop.” The interrogation lasted over four hours.

An employee of the South Ogden Police confirmed that Anna had filed a sexual assault complaint in 2008, though the employee did not confirm the name of the alleged assailant. The disposition of that complaint is unclear. According to Anna’s brief before the Supreme Court, the Utah Division of Child and Family Services also filed a complaint against the elders in June of 2009 over the interrogation. An administrative hearing with the Department of Human Services reportedly found that the men had engaged in “emotional maltreatment,” or the subjection of a child to psychologically destructive behavior,” according to the brief.

According to Anna’s former lawyer, Alexander Zalkin, she was removed from the fellowship as a result of the church’s investigation. She was officially reinstated a year later but never went back to the church, Zalkin told The Daily Beast. Anna’s current lawyer declined an interview request on her behalf.

Anna sued the church in 2016 for more than $300,000, alleging, among other things, infliction of emotional distress. Nearly eight years later, she said, she still suffered from humiliation, anxiety, nightmares, loss of appetite, and poor performance in school. Upon hearing the case, a district court called the allegations “disturbing” and the elders’ behavior “reprehensible.” If it had occurred in a secular setting, they wrote, they would have “no hesitation in sending th[e] claim to the jury.”

In court filings, the church disputes Anna’s factual allegations and denies mistreating her “in any manner,” while at the same time describing her interrogation as a “common and accepted religious practice.” Anna, it claims, “voluntarily associated with the religious organization and chose to participate in the judicial tribunal with her parents”-something that, they argue, “would not ordinarily cause severe unmanageable mental distress.” At a hearing last week, a Supreme Court justice described the practice as akin to “emotional waterboarding.” A lawyer for the church said she would draw the line at anything physical.

As strange as it may sound, the church’s argument rests on painting this behavior as normal religious practice. That’s because of the doctrine of ecclesiastical abstention, which holds that courts cannot decide a religious question or make a religious proclamation. In one famous case, a student at an Episcopal school sued after being expelled for smoking marijuana off school grounds. The court declined to hear the case, ruling that the expulsion was related to the school’s religious doctrines and they could not interfere.

Lawyers for the church say this case, too, is one of purely religious decision-making; that the church was simply carrying out a normal protocol to determine if one of its congregants had sinned. And so far, the courts have agreed. Allowing Anna’s claims to be litigated, an appeals court wrote last year, would “require the district court to unconstitutionally inject itself into substantive ecclesiastical matters.”

It’s a defense that the church has used before. Dozens of lawsuits have been filed against various Jehovah’s Witness congregations and its governing body, the Watchtower Bible and Tract Society, over their failure to report sexual abuse of minors in the community-in part because of a rule stating that two eyewitnesses are required to accuse any member of a sin, no matter how extreme. In multiple instances, the church has cited ecclesiastic privilege to defend its process and its failure to report such complaints to the relevant authorities. The approach was not always successful; the church has paid out multimillion-dollar settlements in recent years.

Lawyers for the plaintiff, and experts interviewed by The Daily Beast, say the argument should not apply in this case either. No one is questioning whether the interrogation was a religious act, they say; everyone agrees that it was. Regardless, the behavior displayed there was so egregious that it should violate even neutral principles of law-secular rules that transcend the case at hand and apply evenly to all.

“Nobody has to say, ‘Oh you're bad, your religion is wrong,’” said Frank Ravitch, chair of the law and religion department at Michigan State University. “They're simply saying, ‘Look, whatever your reason for doing this, religion is not going to give you a defense because it was so extreme and outrageous.”

“Calling this extreme is understating what it is,” he added. “It goes beyond extreme.”

In presenting their case to the Supreme Court, Anna’s lawyers took the argument even further. If the church is allowed to subject a 15-year-old to this kind of treatment without sanction, they asked, what’s to stop churches from blackmailing members, torturing them, or worse? If the court sides with the church, they wrote in a brief, religious leaders would be “immune from liability for any injuries caused by the penalty they decide to hand down for a violation of religious law.”

The court heard arguments Monday and has yet to make a final decision. But many of the justices seemed frustrated with church attorney Karra Porter’s refusal to draw a line over which courts would be allowed to interfere in religious business. Was it torture? Murder? Porter said she’d spent an “entire weekend” looking for an answer and came up empty-handed. “I actually did look for that, I promise, and couldn’t find a thing,” she said.

At one point, Justice Deno Himonas asked repeatedly whether she believed the allegations constituted reprehensible conduct.

“You mean for purposes of an [intentional infliction of emotional distress] claim?” Porter asked.

“For purposes of general human decency,” Himonas replied.

Eventually, the justice seemed to answer his own question.

“I’ve been a judge for a long time and a lawyer for a long time,” he said. “I’ve never seen, in court, anything like this.”
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