One of the Jehovah’s Witnesses convicted Friday of “knowingly and willfully” failing to report to authorities that a 6-year-old girl was being sexually assaulted by a congregant is seeking a new trial.
Terry Ekl, attorney for Colin Scott, 88, filed the motion Tuesday in McHenry County courthouse to vacate the conviction handed down by Judge Mark Gerhardt and be granted a new trial. Ekl’s motion states that prosecutors “failed to prove each element of [the] offense beyond a reasonable doubt.”
Gerhardt found Scott and Michael Penkava, 72, each guilty of the Class A criminal misdemeanor charge of violating the abused and neglected child reporting act.
The men each face up to one year in jail at a sentencing hearing scheduled for Friday.
Ekl wrote that the state failed to prove that Scott met with a female congregant, who the state alleges, told Scott, as well as Penkava and a third elder, who has since died, that the child told her she was being sexually assaulted by Arturo Hernandez-Pedraza.
Hernandez-Pedraza confessed to the elders he was sexually assaulting the girl. However, this was not admitted into trial or considered in the judge’s ruling as it was protected by the clergy-penitent confessional privilege.
During the bench trial, Penkava said first he and the other elder met with the woman. He then made a phone call to attorneys at the Jehovah’s Witnesses at the world headquarters in New York seeking guidance. Penkava testified last week that he was told by someone who he thought was a Jehovah’s Witnesses attorney, in what is referred to as the service department, that he was not required to report the abuse to police.
Scott was not alerted to the information about the child’s abuse and the statements regarding a sexual assault until the days afterward and was not present when Penkava was told to not report the abuse to authorities. Therefore, he was not part of that decision made not to tell authorities, according to testimony during the bench trial Friday.
Instead of reporting the girl’s statements she was being sexually assaulted to police or the Illinois Department of Children and Family Services, Penkava, Scott and the third elder formed a judicial committee and handled the matter through spiritual guidance. This involves repentance, prayer and sharing of scripture with Hernandez-Pedraza as is taught by the Jehovah’s Witnesses faith.
When the girl turned 18, she again told elders that the sexual assaults and abuse had continued throughout her childhood. This time Penkava took her to Crystal Lake police, and Hernandez-Pedraza was charged and convicted on multiple charges related to the girl’s ongoing abuse in 2019. Hernandez-Pedraza, 44, is serving a 45-year prison sentence.
During the trial, attorneys for Penkava and Scott argued they are not mandated reporters and did not break any law, whereas prosecutors maintained the elders are mandated reporters and they “knowingly and willfully” violated the law.
Scott’s motion for a new trial could be heard Friday prior to the elders’ sentencing hearing.