For five years, in defendant’s capacity as a schoolteacher, neighbor, and secretary to the Bishop of the Mormon Church, defendant molested numerous boys in Santa Clara County. As charged in this case, he touched the private parts of four boys who knew him variously as a family friend from church, a teacher in kindergarten and grades two and three, and a home-school religion teacher.

So starts People v. Harward [1]. It’s no joke. This language, taken from a real court case, likely sent shivers down the spines of the Mormons who read it, not to mention Church leaders. Is there a reason to worry? Is Mormon leadership bound to contend with the same public relations nightmare that plagued the Roman Catholics over the last decade?

To answer this question, I set out to look at the extent of any LDS sex abuse that has reached American courtrooms. I then did the same for religions with whom the Mormons are commonly confused – the Seventh-Day Adventists, the Christian Scientists, and the Jehovah’s Witnesses.

Here’s the quick answer: the LDS Church has a problem, as do the Jehovah’s Witnesses. The Adventists and the Scientists, not so much. In fact, the Mormons and the Witnesses are suffering from a similar trajectory. They are bound to keep their lawyers very busy over the coming years. It will probably get darker before it is light again. The amazing thing is that most of this litigation is occurring outside of Utah, which makes you wonder whether word has reached LDS Church Headquarters.

Here’s the scoop: the LDS Church is a defendant in 10 cases, which have given rise to 15 written opinions. Most are outside of Utah.

The hotspot seems to be Washington State, where a Mormon scoutmaster named Jack LaHolt allegedly abused children in the 1970s. His activity alone generated a third of the written opinions in Mormon civil cases – five opinions [2]. The LDS Church heavily litigating these cases on evidentiary grounds. Also in Washington was a case by the wife of a sex abuser who sued her bishop for granting her a Temple Recommend in order to get married, despite indications that her husband had such proclivities [3], and another case against the Church filed by one of the child victims, where the Church litigated whether it had to turn over its internal report [4]. The other cases are in South Dakota [5], Kentucky [6], California [7], and two in Oregon [8]. Utah had only one civil case involving Mormon sex abuse, and it was quickly dismissed, based on the notion that the Church had no duty to warn [9]. As will become clear, the Church obviously is not having as easy of a time in the cases outside of Utah.

The Jehovah’s Witnesses [10] have slightly more civil sex abuse cases in the courts as the Adventists [11], and far fewer than the Mormons. If so, why do I claim that the Jehovah’s and the Mormons have a problem, whereas the Adventists do not? The simple answer: the criminal cases.

For both he Mormon and the Jehovah’s Witness, the situation might not be so bad if the civil cases represented the entire inventory of bad news. However, there’s naturally a lag between criminal case and their civil counterparts. Criminal cases go first and move quicker, and are generally resolved before the parallel civil cases are kicked into gear. For this reason, every criminal case involving child sex abuse can be considered a warm-up act for the civil cases that might follow. Remember O.J. Simpson?

I counted 20 criminal prosecutions of Mormon defendants for sex with children [12], and 19 of Jehovah’s Witnesses [13], with most of them coming in the last ten years. Amazingly, none of the Mormon criminal sex abuse cases were in Utah.

Putting these two types of cases – the criminal and the civil cases involving sex abuse – together, here is a chart showing the frequency of Mormons and Jehovah’s Witnesses cases, by decade:

See what I mean about the common problem, and similar trajectory? Like the Mormons, the Jehovah’s Witnesses have one criminal case that starts with language that should pull its members up short:

On several occasions during the years 1999 to 2000, Jose W. Portillo performed sex acts with 12-year-old Felix M. (the minor), including oral sex, anal sex, and masturbation. Portillo was a married man in his mid-thirties. Portillo and his wife knew the minor and his family through their memberships in a local Jehovah’s Witnesses church [14].

One can almost hear the groans coming out of the Kingdom Halls.

It is interesting to see what the Mormon Church’s role is in its cases. In the civil cases, they are the actual defendants, which means they had a right to contest whether they had a legal duty – a big issue – and whether their notice was generated by communication covered by the clergy privilege. This has been their typical litigation strategy. In the criminal cases, it is surprising how many the Church has provided character witnesses on behalf of the defendant [15], though there were other cases where the Mormon Church assisted the authorities [16].

Are any of the current civil cases on a path to break open the LDS Church, like what happened with the Catholics in the 1990s?

The Washington State case involving scoutmaster Jack LaHolt resulted in a jury verdict for the plaintiff, based on negligence by the LDS Church [17]. The Church settled with other victims [18]. The Church got hit with another plaintiff’s jury verdict, in the amount of $1.2 million, in Washington [19]. This one involved two sisters who were abused by their father, and the jury found the LDS Church liable both for the failure of a bishop to report the abuse of the older sister and for the subsequent abuse of the younger sister. The jury also found the LDS Church liable for intentional infliction of emotional distress, due to intimidating statements made by the bishop to the victim. The Utah case, as noted, was dismissed [20], and the Kentucky case (which involved an LDS missionary) was similarly thrown out [21], as was one of the Washington State cases [22].

All indications are that the South Dakota case (which also involved a missionary), and the two Oregon and California cases are still being litigated – though one of the Oregon cases was transferred to Idaho [23]. The California case involves abuse that allegedly occurred in the 1960s, which gives you an idea how far these cases can go back. Ominously, there were several criminal cases where the LDS Church clearly put the defendant and the victim together. Thus, the question if these cases ever get to the civil courts is whether the Church owed a fiduciary responsibility to the victims to warn them about proclivities they knew, or should have known, about the defendant. That’s how negligence cases work.

Because of the paucity of these cases in Utah, I raised the issue above as to whether Church Headquarters is even aware of them. That question, on further reflection, was rather naïve. Of course the brethren in Salt Lake City know about these cases. Is there any indication that they are worried about them? For example, are there signs that they engaged in strategic litigation in 1990s Catholic cases, where the LDS Church was not a party? If so, this might be a sign that the LDS Church leadership knew exactly what the future might portend.

In the course of my research, I stumbled on Martinelli v. Bridgeport Roman Catholic Diocesan Corp [25], a case in which a former parishioner brought action against the Diocese in the late 1990s, seeking compensation for child sexual abuse by priest. Following the jury finding that Diocese had breached fiduciary duty it owed to parishioner, the Diocese moved for judgment as a matter of law. Guess who filed an amicus curae brief? You got it – the Church of Jesus Christ of Latter-Day Saints, along with six other religious denominations.

What does that brief argue? It took issue with the court’s use of an official church document to decide that there was indeed a fiduciary relationship between the priest and the victim. Doing so, according to the church’s lawyers, “creates a substantial chilling effect on the teaching and preaching of religious entities that must be corrected.” According to the brief:

Religious language and imagery is by its nature imprecise. It invites the person seeking to know and do God’s will to some deeper understanding of his relationship with the divine through prayerful study and prudent application. The undisputed Scripture text or a pastoral metaphor is only the beginning of the inquiry from a religious perspective. It addresses a religious, not a civil legal, concern. It was beyond the imagination of the Diocese, or any religious body, that civil consequences would follow from an individual’s interpretation of theological text and be imprinted on a church body, or that its own agreement with doctrinal and liturgical positions would create liability. Using religious language and imagery to provide a civil rule of decision is enough to entangle the courts “excessively” in a religious matter.

Beyond their imagination? Perhaps. But not after the Catholic Church started getting hit. Here is an expression of a very real concern that civil consequences would flow from religiously-mandated relationships that create liability for a religious organizations that heretofore had never stared into the abyss. That’s exactly what happened with the Catholics since then. It seems to be happening now in Mormondom ten years later. More cases will likely to follow. Be very afraid.

_______________

[1] 2004 WL 1282850 (Cal.App. 6 Dist. 2004).

[2] Fleming v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2006 WL 691331 (W.D.Wash. 2006); Fleming v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2006 WL 753234 (W.D.Wash. 2006); Fleming v. Church of Latter Day Saints, 275 Fed.Appx. 626 (9th Cir. 2008); R.K. v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2006 WL 2506413 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2006 WL 2661055 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2006 WL 2661059 (W.D.Wash. 2006).

[3] Flanigan v. McCrea, 93 Wash.App. 1085, 1999 WL 58767 (Wash.App. Div. 1 1999).

[4] “Jane Doe” v. Corporation of President of Church of Jesus Christ of Latter- Day Saints, 122 Wash.App. 556, 90 P.3d 1147 (Wash.App. Div. 1 2004).

[5] Joseph v. Corporation of the President Church of Jesus Christ of Latter-Day Saints, 2008 WL 282163 (D.S.D. 2008);

[6] Olinger v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 521 F.Supp.2d 577 (E.D.Ky. 2007).

[7] Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 2009 WL 2438419 (Cal.App. 4 Dist. 2009).

[8] Jack Doe 1 v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 2008 WL 4549075 (D.Or. 2008);Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009).

[9] Doe v. Corp. of President of Church of Jesus Christ of Latter-day Saints, 98 P.3d 429 (Utah App. 2004).

[10] The Jehovah’s Witnesses sex abuse civil cases are Bryan R. v. Watchtower Bible and Tract Soc. of New York, Inc., 738 A.2d 839 (Me. 1999); Meyer v. Lindala, 675 N.W.2d 635 (Minn.App. 2004); Berry v. Watchtower Bible and Tract Soc. of New York, Inc., 152 N.H. 407, 879 A.2d 1124 (N.H. 2005); Beal v. Broadard, 19 Mass.L.Rptr. 114, Not Reported in N.E.2d, 2005 WL 1009632 (Mass.Super. 2005).

[11] The Seventh Day Adventists civil sex abuse case are Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (Ohio 1991); Byrd v. Faber, 1992 WL 330189 (Ohio App. 5 Dist. 1992); Hustwaite v. Montana Conference of Seventh-Day Adventists, 303 Mont. 539, 18 P.3d 1033 (Table)(Mont. 2000); Mills v. Deehr, 2004 WL 1047720 (Ohio App. 8 Dist. 2004); Doe v. Oregon Conference of Seventh-Day Adventists, 199 Or.App. 319, 111 P.3d 791 (Or.App. 2005).

[12] Mormon child sex prosecutions are People v. Willoughby, 164 Cal.App.3d 1054, 210 Cal.Rptr. 880 (Cal.App.5.Dist); State v. Foster, 467 So.2d 1254 (La.App. 2 Cir. 1985); State v. Cox, 87 Or.App. 443, 742 P.2d 694 (Or.App.,1986); Com. v. Montanino, 27 Mass.App.Ct. 130, 535 N.E.2d 617 (Mass.App.Ct. 1989); Gillespie v. State, 549 So.2d 640 (Ala.Cr.App. 1989); State v. Hildreth, 267 Mont. 423, 884 P.2d 771 (Mont. 1994); State v. Davis, 670 A.2d 786 (R.I. 1996); State v. Burrell, 1997 WL 53455(Tenn.Crim.App. 1997); Rodriguez v. State, 1997 WL 527843 (Tex.App.-Dallas 1997);Snider v. State, 238 Ga.App. 55, 516 S.E.2d 569 (Ga.App. 1999); Guinn v. State, 2001 WL 1466816 (Tex.App.-Dallas 2001);State v. Teters, 321 Mont. 379, 91 P.3d 559 (Mont. 2004); People v. Harward, 2004 WL 1282850 (Cal.App. 6 Dist. 2004); People v. Lind, 2004 WL 1427134 (Cal.App. 5 Dist. 2004);
State v. Parks, 2004 WL 1936404 (Tenn.Crim.App. 2004); In re Grant O., 2004 WL 2251747 (Cal.App. 5 Dist. 2004); People v. Hettiger, 2005 WL 2143640 (Cal.App. 3 Dist. 2005); People v. Blanchard, 2007 WL 1653098 (Cal.App. 4 Dist. 2007); Archibeque v. Lee ex rel. County of Maricopa, 2007 WL 5517452 (Ariz.App. Div. 1 2007); People v. Perez, 2007 WL 1776210 (Cal.App. 2 Dist. 2007).

[13] The Jehovah’s Witnesses child sex prosecutions are Com. v. Doe, 8 Mass.App.Ct. 297, 393 N.E.2d 426 (Mass.App. 1979); State v. Halcomb, 1 Neb.App. 681, 510 N.W.2d 344 (Neb.App.,1993); State v. Koelling, 1993 WL 150497 (Ohio App. 10 Dist. 1993); State v. Koelling,1995 WL 125933 (Ohio App. 10 Dist. 1995); Pascoe v. State, 1997 WL 61484 (Tex.App.-San Antonio 1997); Guzman v. Lacy, 1998 WL 512954 (S.D.N.Y. 1998); State v. Eisenhouer, 40 S.W.3d 916 (Mo. 2001); Smith v. State, 2001 WL 1608142 (Minn.App. 2001); State v. Blackstock, 147 N.H. 791, 802 A.2d 1169 (N.H. 2002); People v. Halverson, 2002 WL 1733247 (Cal.App. 4 Dist. 2002); U.S. v. Brown, 330 F.3d 1073 (8th Cir. 2003); People v. Wolfenbarger, 2003 WL 22391135 (Cal.App. 3 Dist. 2003); People v. Johnson, 2004 WL 909242 (Cal.App. 5 Dist. 2004); People v. Scott, 2004 WL 2351590 (Cal.App. 6 Dist. 2004); People v. Portillo, 2004 WL 2361583 (Cal.App. 2 Dist. 2004); People v. Atencio, 2005 WL 2461918 (Cal.App. 2 Dist. 2005); State v. Patterson, 2005 WL 3475740 (Ohio App. 5 Dist. 2005); State v. Bagley, 101 Conn.App. 653, 922 A.2d 1128 (Conn.App. 2007); People v. Simental, 2009 WL 2426334 (Cal.App. 4 Dist. 2009).

[14] People v. Portillo, 2004 WL 2361583 (Cal.App. 2 Dist. 2004).

[15] State v. Foster, 467 So.2d 1254 (La.App. 2 Cir. 1985); Com. v. Montanino, 27 Mass.App.Ct. 130, 535 N.E.2d 617 ((Mass.App.Ct. 1989)., 1997 WL 527843 Tex.App.-Dallas,1997. People v. Lind, 2004 WL 1427134 (Cal.App. 5 Dist. 2004).

[16] Rodriguez v. State,1997 WL 527843 (Tex.App.-Dallas 1997); State v. Teters, 321 Mont. 379, 91 P.3d 559 (Mont. 2004); In re Grant O., 2004 WL 2251747 (Cal.App. 5 Dist. 2004).

[17] Fleming v. Church of Latter Day Saints, 275 Fed.Appx. 626 (9th Cir. 2008).

[18] R.K. v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2006 WL 2506413 (W.D.Wash. 2006).

[19] Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 141 Wash.App. 407, 167 P.3d 1193 (Wash.App. Div. 1 2007).

[20] Doe v. Corp. of President of Church of Jesus Christ of Latter-day Saints, 98 P.3d 429 (Utah App. 2004).

[21] Olinger v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 521 F.Supp.2d 577 (E.D.Ky. 2007).

[22] Flanigan v. McCrea, 93 Wash.App. 1085, 1999 WL 58767 (Wash.App. Div. 1 1999).

[23] Joseph v. Corporation of the President Church of Jesus Christ of Latter-Day Saints, 2008 WL 282163 (D.S.D. 2008); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009); Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 2009 WL 2438419 (Cal.App. 4 Dist. 2009).

[24] People v. Perez, 2007 WL 1776210 (Cal.App. 2 Dist. 2007); People v. Hettiger, 2005 WL 2143640 (Cal.App. 3 Dist. 2005); People v. Harward, 2004 WL 1282850 (Cal.App. 6 Dist.,2004); State v. Davis, 670 A.2d 786 (R.I. 1996); Com. v. Montanino, 27 Mass.App.Ct. 130, 535 N.E.2d 617 (Mass.App.Ct. 1989).

[25] 196 F.3d 409 (2nd Cir. 1999)