Jehovah's Witness elders who failed to report child abuse got bad advice, say local pastors, attorneys

In 2006, a Crystal Lake man confessed to the leaders of his church that he was sexually abusing a 6-year-old girl.

It was not that confession, however, that McHenry County Judge Mark Gerhardt considered when convicting the two church elders of violating the state's mandated reporter law.

Instead, he relied on information provided to Michael M. Penkava, 72, and Colin Scott, 88, elders at the Kingdom Hall of Jehovah's Witnesses in Crystal Lake, by another congregant, sidestepping the question of whether the man's confession was protected by the First Amendment and the doctrine of clergy-penitent privilege, which protects confessions from further disclosure.

The confession of a serious and ongoing crime puts a pastor in a "tight spot," said the Rev. Mark Buetow of Zion Lutheran Church and School in McHenry.

Confessions between a church member and pastor are sacred, he said, but in the case of child abuse, the child must be protected. A church member cannot use the confession as a way to avoid being held responsible, Buetow said.

"From a pastor's perspective, we want to do the right thing and get that child help. We have got to do everything we can to keep kids safe," Buetow said. "You can confess to me and I will absolve you, but there will be consequences. I will be as welcoming as the Lord wants me to be, but not with my kids."

In the case of Penkava and Scott, Penkava called attorneys at the Jehovah's Witnesses world headquarters in New York for advice, according to testimony during the pair's bench trial in March. He was told he did not have to call authorities, so he did not. Instead he and Scott prayed with him, in line with their teaching, according to trial testimony.

In 2018, the girl, then 18, told church elders the abuse never stopped, and Penkava helped her report it to police.

Arturo Hernandez-Pedraza, 44, was subsequently convicted of aggravated criminal sexual abuse, predatory criminal sexual assault of a child, criminal sexual assault, sexual relations within families and domestic battery. He was sentenced to 50 years in prison.

Gerhardt "avoided" that complicated issue in the Penkava and Scott case, said Mark Brown, a Chicago-based attorney who has handled child abuse cases involving churches and youth organizations for the past 14 years.

"I would hope, on a general level in any court, if there is knowledge by a clergy of child sexual abuse and they failed to report it - whether or not they got bad advice from an attorney - they failed to report that and they should be charged," Brown said.

The Rev. Gabriel Bardan, pastor at Cary-Grove Adventist Fellowship Church in Fox River Grove, has been involved in situations in which the police had to be called.

He said a person's sin - when repetitive and hurting others, such as viewing child pornography, which he believes is an addiction that often leads to child sexual abuse - must be acknowledged.

"If we don't acknowledge this, reality is (that) there is no chance of change," Bardan said.

He said he believes a person who has sinned or committed a crime can be transformed, and he will continue to work with that person. But, he said, he also will work with police if that sin is repetitive and causing someone else harm.

"Even if the person goes to jail, we continue to talk to them. They are not a pariah," Bardan said. "It is our responsibility to bend down and lift up those who have fallen, and I can fall tomorrow."

He currently is working on forming a team of counselors to work in the church's lifestyle center in Elgin. He said he bought a program on addiction and is trying to build a team of counselors skilled in issues such as sex addiction, weight loss, depression and anxiety.

He and other leaders in his church, which also has congregations in Elgin, Deer Park and Schaumburg, undergo annual mandated reporter training.

Confessions involving ongoing, repetitive or harmful behavior to other people, such as murder or child abuse, are reported to the police, Bardan said.

The advice given to the Crystal Lake elders telling them they did not have to report the confession that a child was being sexually abused "was wrong," Brown said.

There is some clergy-penitent privilege, but not when an ongoing crime is being committed, especially the sexual abuse of a child, Brown said. That is the law in Illinois and most states, he said.

"Clearly, they received bad guidance from the national headquarters," agreed Nicholas Miller, a professor of religious studies and history at Andrews University in Berrien Springs, Michigan. He also is an attorney who focuses on religious institutions.

When contacted for this article, the Jehovah's Witnesses world headquarters in New York said it did not comment on specific cases but referred to articles in the May 2019 Study Edition of The Watchtower, which provided an overview of the church's scripturally based practices.

"Do elders comply with secular laws about reporting an allegation of child abuse to the secular authorities?" the article states. "The answer: Yes. In places where such laws exist, elders endeavor to comply with secular laws. ... Elders assure victims and their parents and others with knowledge of the matter that they are free to report an allegation of abuse to the secular authorities."

Penkava and Scott's attorneys argued throughout the court proceedings that Hernandez-Pedraza's confession, as well as statements made by the child and another church member, were protected under clergy-penitent privilege.

Anything Penkava and Scott heard related to the child's abuse fell under the protection of the confessional process, in the same way a confession made inside a confessional booth in the Roman Catholic Church would, the defense attorneys said.

That's the position Mark J. O'Donnell, a former member of the faith who now works as a consultant for law firms representing victims of child abuse and is the editor of a whistle-blowing and watchdog site for issues related to Jehovah's Witnesses, said the faith has taken before in other cases.

O'Donnell was born into the faith and left after almost 40 years because, he said, he "could not comprehend the scandalous complexities of how that religion interfered with the lives of young children," including his own.

"In the Penkava/Scott case, Jehovah's Witnesses gambled with the well-being of a young child in hopes that someone else would report her abuser. That never happened," O'Donnell said in an email.

Both Bardan and Miller said certain aspects of the Jehovah's Witnesses faith make them more vulnerable to issues of child abuse going unreported.

Domestic abuse and crimes against children are often handled "in a spiritual manner, and honestly, a lot of conservative churches have suffered from that over the years," Miller said.

Whereas other religions are more willing to be involved in juries and the military, Jehovah's Witnesses may not participate at all, he said.

Miller said he teaches his students and educates pastors that if there is a complaint of abuse against a child younger than 18, "you must report" it to police and child services.

"We always say err on the side of reporting," Miller said. "The worst that can happen is child protective services says, 'You don't need to report this,' but at least you have done what you can."