Religious organizations should not pay damages for crimes perpetrated by their leaders or members in private homes outside of church-organized religious activity, the court said.
by Massimo Introvigne
On April 26, 2023, the Supreme Court of the United Kingdom issued an important decision on the question of vicarious liability by a religious organization for a crime committed by one of its elders in a non-institutional setting.
These cases have been hotly debated, not only in the United Kingdom. In several countries, courts have stated that a religious organization is liable for crimes committed by its leaders or employees in an institutional setting. For instance, several decisions in different countries affirm that if a Catholic priest sexually abuses a minor during a retreat or youth camp organized by the parish, the Catholic diocese or religious order is responsible and should pay damages to the victims. This is highly significant for the victims and their lawyers, as individual priests normally have very little assets while dioceses and religious orders are comparatively rich.
In Britain, since 2001, courts have significantly expanded the notion of vicarious liability, precisely because of the widespread concern about cases of sexual abuse. Vicarious liability does not only apply to religious organizations, nor only to sexual abuse. For example, corporations have been held liable to pay damages for tortious acts committed by their employees, and the government for incidents that happened in prisons.
However, even the broadened scope of vicarious liability in Britain is not unlimited. Determining vicarious liability involves two stages. First, the perpetrator of the tortious act (which may also be a crime) must be an employee, or in a relationship similar to that of an employee, of the organization against which damages are claimed. Second, a close connection must exist between this employment (or quasi-employment) relationship and the crime. For example, the UK Supreme Court has ruled that a doctor to whom a bank referred young prospective employees for a medical examination, and who sexually abused them, was not an employee of the bank, which was thus not liable for his crimes. The same UK Supreme Court ruled than the employee of a company who took home confidential data and leaked them to the media in pursuance of a personal vendetta against his employer was not acting within the authorized scope of its employment relationship with the company, which should not pay damages for his actions.
In the case “Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent),” [2023] UKSC 15, the facts referred to two couples of Jehovah’s Witnesses, who were members of the same congregation and befriended each other, Mr. and Mrs. B., and Mark Sewell and his wife Mary. Mark Sewell was first a ministerial servant and then an elder in the congregation, although the friendship also originated from the fact that he and Mr. B. shared a business relationship.
By 1989, Mark Sewell had developed serious problems of alcoholism and depression. He also started flirting with Mrs. B., who told him she was not interested. The Bs and Mark’s wife sought the counsel of Mark’s father, also an elder in the congregation, who allegedly recommended they remain close to his son and try to help him with his problems. However, Mark’s situation worsened. On April 30, 1990, after a quarrel with his wife, Mark had retreated to a back room of his home, alone. Mrs. B. went to speak to Mark, with the idea of persuading him to go to the elders and discuss his problems with them. Shortly after she had entered the back room, Mark assaulted and raped Mrs. B.
In 1993, Mrs. B., who had remained silent about the rape, learned that Mark had been accused of sexually molesting a minor. She then reported her case to the elders of the congregation. Mark lost his position as an elder, but was not immediately disfellowshipped, as evidence against him was regarded as insufficient. He was finally disfellowshipped in 1994 for reasons not related to Mrs. B.
In 2013, Mrs. B. heard of yet another charge against Mark and reported her case to the police. In 2014, Mark was sentenced to 14 years in jail for the rape of Mrs. B., who at that time was no longer one of the Jehovah’s Witnesses, and the indecent assault of two other victims.
In 2017, Mrs. B. sued the Jehovah’s Witnesses, claiming the organization was vicariously liable for her rape. She won at first instance in 2020 and on appeal in 2021. The judges did express some doubts as to whether the rape had a close connection with Mark’s relationship with the Jehovah’s Witnesses as an elder (thus a “quasi-employee” if not an employee of the organization), but read or rather misread the organization’s literature to conclude that an elder among the Jehovah’s Witnesses is in a position of great authority, and that abuse victims are either discouraged or put in a difficult position when they consider reporting his crimes.
The Supreme Court has now unanimously overturned the appeal decision, which had been widely criticized by legal scholars and academics. The Supreme Court observed that the first stage of vicarious liability was satisfied as Mark Sewell was in a position of quasi-employment with the Jehovah’s Witnesses organization, but not the second part of the test. The rape did not happen in an institutional setting, and was not closely connected with the fact that both the rapist and the victims were members of the same congregation of the Jehovah’s Witnesses, where Mark served as an elder. That Mark’s father, also an elder, had suggested that the Bs continue to see Mark and try to help him, the Supreme Court said, was irrelevant.
The Supreme Court found that “the rape was not committed while Mark Sewell was carrying out any activities as an elder on behalf of Jehovah’s Witnesses. He was at his own home and was not at the time engaged in performing any work connected with his role as an elder. So, for example, he was not conducting a bible class, he was not evangelizing or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah’s Witnesses.” The case was thus substantially different from those where Catholic dioceses or religious orders were found liable for child sexual abuse committed by priests during pastoral activities organized by the Catholic Church.
The Supreme Court also found that “at the time of the rape, Mark Sewell was not exercising control over Mrs B because of his position as an elder. It was because of her close friendship with Mark Sewell and because she was seeking to provide emotional support to him, and not because Mark Sewell had control over her as an elder, that Mrs B went to the back room. The driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder. Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a close friend of Mrs B when she was trying to help him.”
The case is of great significance not only for Jehovah’s Witnesses but for other religious organizations as well. While respecting that the notion of vicarious liability has been expanded to offer better protection to victims of sexual abuse, the decision reacts against the idea that, particularly when dealing with religious organizations, vicarious liability can be expanded ad libitum. Religious organizations should bear responsibility for institutional abuse that happens during activities they promote and organize. They cannot be held liable for the behavior of their members and leaders in their private homes, in cases where, as the Supreme Court said, this “has nothing to do” with the activities of the religious group.
