Sam Lounsberry
Shaw Local News
December 23, 2021
A judge on Thursday partially granted the request of two elders of a Crystal Lake congregation of Jehovah’s Witnesses to shield some church records from prosecutors who have alleged they failed to report child abuse.
The McHenry County State’s Attorney’s Office sought records created and kept by a committee of Jehovah’s Witnesses leaders ahead of the trial of Michael Penkava, 72, and Colin Scott, 88, who each face a count of violating reporting provisions, a Class A misdemeanor.
Penkava previously wrote as a freelance columnist for the Northwest Herald.
The allegations stem from statements prosecutors said were made to the elders in 2006 about crimes committed by Arturo Hernandez-Pedraza, who a McHenry County jury found guilty of sexually assaulting and abusing a young girl for 13 years. He was sentenced in December 2019 to 45 years in prison.
The state’s attorney’s office claims Penkava and Scott should have disclosed the reports of child abuse they heard about Hernandez-Pedraza to law enforcement or child welfare officials.
But the elders and their defense attorneys said they were made aware of the child abuse through a spiritual confessional process that allows congregants to admit wrongdoing in confidence.
The defense, citing clergy-penitent privilege, sought to quash the prosecution’s subpoena for records from a judicial committee, which is a body of three elders the church forms as part of its confessional process in response to child abuse allegations, according to witness testimony last week.
Judge Mark Gerhardt granted that defense motion in part after reviewing the relevant records himself and deciding which were covered by the clergy-penitent privilege as described by Illinois law.
He did not grant the defense’s motion in full, however, meaning the prosecution was able to get some redacted documents as well as others it had requested that Gerhardt found were not subject to clergy-penitent privilege.
“We’re satisfied with the ruling,” McHenry County State’s Attorney Patrick Kenneally said. “It’s too early to ultimately say what the significance of the documents [subject to the partially quashed subpoena] is, as we have yet to review them.”
Phil Prossnitz, Penkava’s defense attorney, told the Northwest Herald that he was pleased with the decision.
“I believe the judge has carefully listened to the evidence. I think he’s faithfully following the United States Constitutional, the First Amendment in particular,” Prossnitz said.
A question still remains about whether a congregant’s testimony will be admitted at trial.
Although Gerhardt said the statements the congregant made to the Jehovah’s Witnesses elders were not a confession, he also said those conversations were an important part of the Jehovah’s Witnesses confessional process, which would allow statements to be granted some confidentiality.
Scott’s defense attorney, Terry Ekl, said he felt Thursday’s ruling would have prohibited the congregant’s testimony about what was said to the church committee from being considered at trial. But the judge disagreed that the ruling extended to that issue for now and emphasized that he found the statements to the elders “are not a confession.”
Whether the congregant’s statements to the elders trigger the state’s requirements for clergy to report claims of child abuse to law enforcement is the crux of the prosecution’s case.
“We feel that if we were talking about a traditional penitent in a confessional box in a Catholic church and that had occurred, and we were following the privilege and the law on mandatory reporting, it would be clear that all of this would be excluded and this prosecution would not be proceeding,” Prossnitz said. “We have a different faith, and it’s a little bit more nuanced, but at the end of the day, that’s the analogy.”
Prosecutors intend to move forward with the case and have asked Gerhardt to make a ruling on the admissibility of the congregant’s testimony after a Jan. 28 hearing on the issue.
The court also set a trial date for Penkava and Scott. They will have a bench trial, meaning the judge will hear the case and make a decision on whether the elders are guilty instead of a jury, starting March 2.
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