Rape, the Jehovah’s Witnesses and vicarious liability: BXB

Background

In BXB v Watch Tower and Bible Tract Society of Pennsylvania & Anor [2020] EWHC 156 (QB), Mrs B started attending the Kingdom Hall with her husband in Barry in 1984 and was baptised in 1986 [2]. She and her husband became friends with Mark Sewell, one of the “ministerial servants” of the congregation, and his wife. In 1990 she was raped by Sewell and in 2014, after a trial at which Mrs B had to give evidence, he was convicted of raping her and of seven counts of indecent assault against CXC and another individual and sentenced to a total of 14 years’ imprisonment [4]. As a result of the rape, she suffered from several episodes of depression and what was subsequently identified as post-traumatic stress disorder. She sought damages for her injuries and for loss of earnings which, she claimed, was consequent on her injuries [5]. She also alleged that the subsequent internal investigation had been seriously flawed.

The Defendants accepted that Mark Sewell had raped Mrs B, but not that they were vicariously liable, nor that they owed her a duty of care in the conduct of the investigation into her allegations or had breached any such duty. They also argued that the action was out-of-time and that it would be wrong to extend time under s.33 Limitation Act 1980. They disputed the extent of the injury attributable to any breaches of duty and, in any event, denied that it could be shown to have resulted in any loss of earnings in the past or that it was likely to result in such losses in the future [6].

The issues were as follows:

“(a) Should time be extended under s. 33 of the 1980 Act in respect of either or both of the vicarious liability and investigation claims?

“(b) Are the Defendants vicariously liable for the rape of Mrs B by Mark Sewell?

(c) In relation to the investigation claim:

(i) Did the Defendants owe Mrs B a duty of care?

(ii) If so, did the Defendants breach this duty?

(d) To what extent were the psychiatric injuries for which Mrs B seeks compensation attributable to (i) the rape and/or (ii) any breach of duty in relation to the investigation?

(e) How much should Mrs B be awarded in damages?” [7].

The judgment

On the issue of vicarious liability, Chamberlain J held that the two stages of the test for vicarious liability were satisfied: Mark Sewell carried on activities as an integral part of the “business” activities carried of the Defendants and for its benefit, and the commission of the rape was a risk created by the Defendants by assigning those activities to Mark Sewell [157]. Elders were the spiritual leaders of the congregation and “An elder is as integral to the ‘business’ of a congregation of Jehovah’s Witnesses as a priest is to the ‘business’ of the Catholic Church” [158]. At to whether the commission of the rape was a risk created by Barry Congregation by assigning those activities to Mark Sewell, the answer was also “Yes”, for three reasons [159]:

  1. “any organisation that confers on its leaders power and authority over others creates a risk that those leaders will abuse that power and authority. This is as true of a religious organisation as it is of a secular one” and the teachings of Jehovah’s Witnesses conferred on elders considerable power and authority over others [161];
  2. where an organisation made rules for all aspects of its adherents’ lives and set up its leaders up as moral and spiritual exemplars, “it imbues those leaders with power and authority even outside the confines of their religious activities” [162]; and
  3. “sexual abuse is almost always a form of abuse of power. Where (as here) the act of abuse involves physical violence, it will generally be enabled by the relatively greater physical power of the abuser compared to his victim. But acts of sexual abuse rarely happen out of the blue … Any organisation that confers on its leaders power over others creates the risk that they will abuse it in that way” [163].

The relationship between the Defendants and Mark Sewell was therefore capable in principle of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation [164].

Whether Sewell’s rape of Mrs B on 30 April 1990 was sufficiently connected to his status as an elder was a different question [164]. The rape did not occur while Sewell was performing any religious duty. But that was not a necessary ingredient of liability: the test was “more open-textured” and required “an analysis of all aspects of the relationship between the tort and the abuser’s status”. There were five relevant aspects [167].

  1. Mr and Mrs B met the Sewells when Mark was a ministerial servant. They began to associate in part because Mr and Mrs B perceived the Sewells to be of high standing among Jehovah’s Witnesses and by associating with them, Mr and Mrs B were practising “good association”. Mr B aspired to become a ministerial servant and became one at the same time as Sewell became an elder. So, Sewell’s status as an elder was one factor in the couples’ developing friendship. That would not be enough to establish vicarious liability but it was “a piece of relevant context” [168].
  2. When Sewell began to cross boundaries and act inappropriately towards Mrs B, she tolerated his behaviour because he was an elder. She assumed that he would be acting from pure motives and that there could be repercussions if she were to call out his inappropriate behaviour [169].
  3. An instruction from Tony Sewell, a senior elder, to Mr and Mrs B to act as confidants to Mark made it difficult to break off the friendship even after Mark’s behaviour became seriously concerning [170].
  4. It was material that the rape occurred after Mr and Mrs B had been out “pioneering” – performing the central religious duty of Jehovah’s Witnesses [171].
  5. On the basis of Mrs B’s evidence about what Mark Sewell said to Mr B, Sewell had formed the belief that there had to be an act of adultery in order to generate scriptural grounds for him to divorce his wife:  “The fact that, in his mind, rape was equivalent to adultery suggests a mindset in which he was entitled to act as he desired and Mrs B would or should submit to him. Such a mindset is utterly contrary to the teachings of Jehovah’s Witnesses, but the evidence establishes that his pathological beliefs about his own entitlement to exercise power over others were bound up with the position and status the Defendants had given him by appointing him as an elder” [172].

Chamberlain J concluded that:

(a) It was equitable to extend time to allow both the vicarious liability and the investigation claims to proceed.

(b) The Defendants were vicariously liable for the rape of Mrs B by Mark Sewell.

(c) It was not necessary to decide whether or not the Defendants owed Mrs B a duty of care in the conduct of the investigation into her complaint or whether, if so, they breached that duty.

(d) The psychiatric injuries for which Mrs B sought compensation were attributable to the rape.

(e) Mrs B should be awarded £62,000 by way of general damages. The disputed claims for special damages, insofar as they were dealt with in the judgment, failed [217].

Cite this article as: Frank Cranmer, "Rape, the Jehovah’s Witnesses and vicarious liability: BXB" in Law & Religion UK, 14 February 2020, https://lawandreligionuk.com/2020/02/14/rape-the-jehovahs-witnesses-and-vicarious-liability-bxb/

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See also

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