In a guest post, Elijah Z Granet comments on the justiciability of the internal disciplinary processes of the Jehovah’s Witnesses.
The recent case of BXB v Watch Tower and Bible Tract Society of Pennsylvania & Anor  EWHC 156 (QB) stemmed from the tragic rape of the claimant—referred to as Mrs B—whilst she was engaging in door-to-door evangelism for the Jehovah’s Witnesses. Mrs B’s rapist, who was eventually convicted in 2014 for both this and other sexual crimes, was a fellow Jehovah’s Witness evangelist, and a “ministerial servant” (an important lay congregational role—Jehovah’s Witnesses have no professional clergy). When Mrs B reported her rape to her local congregation, a “judicial committee” of Jehovah’s Witnesses held a hearing, in which they questioned Mrs B in front of her rapist, and rejected the allegations as unproven, in accordance with the Jehovah’s Witness’s belief that serious allegations must be corroborated by two eyewitnesses.
When Mrs B sued in the High Court for damages deriving from her rape and the subsequent investigation, these essential facts were not disputed by the respondents in this case (the world governing body of the Jehovah’s Witnesses and Mrs B’s local congregation). Instead, the case focused on inter alia vicarious liability for the rape of Mrs B and the alleged breach of the Witnesses’ purported duty of care to Mrs B in the conduct of their investigation. Chamberlain J found in favour of Mrs B on the vicarious liability issue and determined that as her psychiatric injuries were ultimately attributable to her rape, there was no need to decide on the duty of care question. As a result, Mrs B was awarded £62,000 in damages.
The “two-witness rule”
The UK Human Rights Blog has produced an excellent analysis of the vicarious liability issues in the case, so I will instead focus on Chamberlain J’s obiter dicta on the justiciability of the religiously motivated “two-witness rule” which governed the internal hearing.
The Jehovah’s Witnesses derive scriptural support for their two-witness rule from Deuteronomy 19:15, Matthew 18:15–16, and 1 Timothy 5:19. The genuineness of the Jehovah’s Witnesses’ belief that scripture requires the two-witness rule for internal judicial proceedings was not in dispute; the Jehovah’s Witnesses do not feel that they have any discretion in applying what they perceive as a mandatory scriptural requirement. However, this rule has been the subject of intense criticism for hindering the effective investigation of abuse cases. For example, at  Chamberlain J quotes from the Australian Royal Commission into Institutional Responses to Child Sexual Abuse case study into the Jehovah’s Witnesses, which averred in s 7.3 that the two-witness rule was ‘unacceptable and wrong’ because it put child victims in a profoundly unfair and potentially traumatising position. It should be noted that this rule was historically not alien to English law; for example, the testimony of two witnesses was required for convictions of treason until the Treason Act 1945. The rule is still in force in the United States, where it is enshrined in Art 3(3) of the Constitution.
The justiciability of the two-witness rule was previously considered by Warby J in Otuo v Watch Tower Bible and Tract Society of Britain  EWHC 344 (QB) who, at , held that the question of how a local congregation had followed their instructions to follow Matthew 18:15-16 in internal judicial proceedings was ultimately a non-justiciable matter of religious doctrine. Warby J, in addition to applying the general precedent on religious justiciability set by the Supreme Court in Shergill v Khaira  AC 359, also relied on an obiter dictum from Canadian case Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v Wall  SCC 26. In that case, Rowe J averred at  that while a court could generally deal with procedural rules of religious organisations, it could not determine how faithfully scripture had been followed. In BXB, Chamberlain J endorsed this approach at , holding that ‘to pronounce on the true interpretation of the words used by the writers of Matthew’s Gospel’ was forbidden because it “it would undermine the state’s neutrality between competing religious views.”
However, the (aptly named) counsel for Mrs B, James Counsell QC of Outer Temple Chambers, submitted inter alia that the two-witness rule was inappropriate for investigations into sexual abuse, and ought not to have been applied, which brought up ‘different and difficult issues.’  Chamberlain J, in the next paragraph, sets out the delicate balancing act faced by the court when considering Mr Counsell’s submissions:
“ It is not obvious that a religious organisation which chooses, for scriptural reasons, to adopt a risky procedure for investigating and determining complaints should be held immune from liability when those risks eventuate simply because of the scriptural origin of the procedure. On the other hand, it must be borne in mind that the procedure’s ultimate function is to determine whether the person complained against may remain a member of the religious community or should be expelled from it. Any interference with an organisation’s right to determine for itself who should remain a member would, under Article 9 ECHR, have to be justified as proportionate to a legitimate aim. Moreover, at least when those involved are adults of full capacity, there is force in the argument that by becoming and remaining members of the organisation and/or by making a complaint, they accept that the complaint will be investigated and adjudicated according to the religious rules to which the group as a whole subscribes.”
As noted above, Chamberlain J ultimately found it unnecessary to decide on this vexed issue. Yet, his discussion touches on an uncertain and difficult legal question. Can a religious organisation incur liability for damages caused by its adherence to (what it believes to be) a mandatory scriptural injunction? Both possible answers to the question involve invidious choices.
If religious organisations are able to invoke Scriptural mandates to exempt themselves from any potential duty of care they may owe to congregants in internal proceedings (although, as noted at , there is no case law on the existence of such a duty), this would, as Chamberlain J observed at , risk violating the state’s neutrality by granting certain religious groups exemption from the application of tort law. Given the extremely serious context and magnitude of the alleged harm caused by the two-witness rule, this could also potentially involve major wrongs against vulnerable people in the internal disciplinary process to go without a remedy.
Equally, given that the Jehovah’s Witnesses do sincerely believe that they have no discretion in the application of their interpretation of Matthew 18:15–16, any decision about the correctness of the two-witness rule policy runs the risk of the state ruling in matters of religious doctrine and overruling a faith’s internal decision about the composition of its membership.
This vexed issue remains an open question for the courts, and ripe for further academic discussion.
Elijah Z Granet
Cite this article as: Elijah Z Granet, “Jehovah’s Witnesses and the ‘two-witness rule’: a comment on BXB“ in Law & Religion UK, 14 February 2020, https://www.lawandreligionuk.com/2020/02/14/jehovahs-witnesses-and-the-two-witness-rule-a-comment-on-bxb/.