Judge allows testimony about child abuse at trial of Jehovah’s Witnesses elders

Statements made by a woman about a 6-year-old girl who told her she was being sexually abused by a male relative in 2006 will be considered in a judge’s ruling in the trial of two Jehovah’s Witnesses elders.

McHenry County Judge Mark Gerhardt ruled Friday that he would not consider the convicted abuser’s confession but will include the woman’s statements as evidence as Gerhardt decides whether the two elders failed as mandated reporters to alert police and the Illinois Department of Children and Family Services to the abuse in 2006.

The ruling came as part of the bench trial of Michael M. Penkava, 72, of Crystal Lake and Colin B. Scott, 88, of Cary. Each are charged with a Class A criminal misdemeanor of violating provisions of the state’s mandatory reporter law.

Outside his involvement with Jehovah’s Witnesses, Penkava taught for 35 years at West Elementary School in Crystal Lake and previously wrote as a freelance columnist for the Northwest Herald.

Scott and Penkava’s joint trial began last week, and whether to include the statements made by the woman was at the center of pretrial hearings held over the past several months. Gerhardt declined to rule last week, ahead of the trial starting, on whether he would consider them.

Attorneys for the elders have argued vehemently that the woman’s statements are protected by clergy-penitent privilege as part of the confessional process of Arturo Hernandez-Pedraza. Hernandez-Pedraza, 44, also a clergy member, continued to sexually abuse the girl for about 13 years after confessing to the elders and claiming to be repentant.

Hernandez-Pedraza confessed to the elders in 2006 that he was molesting the child, but they did not relay the information to authorities. Instead, Penkava and Scott, following the guidance of the Jehovah’s Witnesses rule book and their leaders in New York, prayed with Hernandez-Pedraza and shared scripture as a way of dealing with his confession. The abuse continued until the girl was about 19 years old and she reported it again.

This time, elders told police, and in 2019, Hernandez-Pedraza was convicted and sentenced to 45 years in prison.

The woman told elders in 2006 that the girl told her Hernandez-Pedraza was “touching her private parts.”

The judge ruled Friday that the woman’s statements are not protected by clergy-penitent privilege and would be considered in his ruling.

After announcing his decision, McHenry County State’s Attorney Patrick Kenneally said “the state rests” its case.

Defense attorneys motioned for a directed verdict, arguing that the state failed in proving its case beyond a reasonable doubt. Philip Prossnitz, Penkava’s defense attorney, also asked the judge to reconsider his decision, saying what the woman told the elders was “a part of the confessional process” and is “indispensable.”

Terry Ekl, Scott’s defense attorney, said the wording of the state’s charge alleges that the woman made statements to the elders on July 27, 2006. But, Ekl said, the woman testified during a hearing that she told elders what the girl told her in 2006 or 2007. This discrepancy, Ekl said, “is significant.”

“The difference does not protect Scott from double jeopardy,” he argued.

Prossnitz said the woman’s pretrial testimony is “all over the board. [There is] no specificity” with regard to dates and times, he said.

Ekl also said the charge is written whether the elders “knowingly and willfully” failed to report the abuse.

He said it is a question of their mental state at the time.

“The state must prove they knowingly and willfully violated the statute,” Ekl said

Kenneally pointed to another case, in which school officials were told a parent suspected a teacher of abusing her daughter. School officials investigated and determined there was no abuse. The school did not report the suspicion to authorities, and later it was proven that, in fact, there was abuse. The court ruled the school officials were mandated to report the child abuse suspicions whether they were proven or not.

In this case, the clergy members had “reasonable cause to suspect” the child was being abused, Kenneally said.

“Just because you don’t know your conduct is criminal is not a defense,” he said.

Kenneally also said the state is not required to prove the woman made the statements to elders on a specific date. The charge reads the conversation was “on or about” the date charged.

Gerhardt will rule on the directed verdict Friday.