Judge to rule on disclosure of McHenry County Jehovah’s Witnesses records in failure to report child abuse probe

Defense argues to quash subpoena for faith leaders’ records in courtroom shielded from public, press

A conversation takes place during a hearing Thursday, Dec. 16, 2021, for defendants Colin Scott and Michael Penkava at the Michael J. Sullivan Judicial Center in Woodstock.

A McHenry County judge is set to make a ruling Dec. 23 on whether statements about child sexual abuse made to elders at a Crystal Lake congregation of Jehovah’s Witnesses can be subpoenaed by prosecutors.

Defense attorneys for Michael Penkava, 72, and Colin Scott, 88, who face one count each of violating reporting provisions, a Class A misdemeanor, argue the statements were made during a confidential confessional process and are protected by clergy-penitent privilege.

The McHenry County State’s Attorney’s Office alleges that Penkava and Scott, elders in a Crystal Lake Kingdom Hall of Jehovah’s Witnesses, failed to disclose acts of child sexual abuse to authorities, as required by state law.

Penkava previously wrote as a freelance columnist for the Northwest Herald.

Prosecutors claim the two were made aware of abuse accusations involving Arturo Hernandez-Pedraza in the mid-2000s and did not report them to the police, even as the man’s criminal actions continued for more than a decade.

A jury found Hernandez-Pedraza guilty of sexually assaulting and abusing a young female relative for more than 13 years, and he was sentenced in December 2019 to 45 years in prison.

Judge Mark Gerhardt’s decision next week will determine whether the Crystal Lake congregation must respond to the prosecution’s subpoena for records and notes taken by a judicial committee of the faith’s elders formed in response to the abuse claims. Prosecutors also are asking that a congregant be allowed to testify at trial.

Judge Mark Gerhardt shows a document as he presides over a hearing for defendants Colin Scott and Michael Penkava Thursday, Dec. 16, 2021, at the Michael J. Sullivan Judicial Center in Woodstock.

The ruling will be based on hours of testimony from two witnesses called to the stand Thursday afternoon and arguments Friday by defense attorneys for the elders and prosecutors.

The defense argued that the records should be shielded from prosecutors and the public because they detail what the Jehovah’s Witnesses consider to be communications that are confessional and spiritual in nature and, thus, exempt from Illinois child abuse reporting requirements for clergy.

But Assistant State’s Attorney Ashur Youash said the defense and the religious organization have characterized almost all communications between Jehovah’s Witness elders and congregants about what the group considers sins and admissions of committing them as a part of the group’s confessional process, making them confidential.

“That’s not the way it works,” Youash told the Northwest Herald after Friday’s court proceedings.

He contends that the law requires more specific parameters for activity considered confessional and exempt from Illinois child abuse reporting requirements.

John Miller, another elder not charged in the case who is an attorney for the New York legal team that serves Jehovah’s Witness elders, was called to testify by the defense Thursday. He described the faith’s confessional process, which he said begins the moment a parishioner approaches an elder to begin admitting a sin.

Witness John O. Miller speaks about the literature and staff handbooks for the Watchtower organization during a hearing for defendants Colin Scott and Michael Penkava Thursday, Dec. 16, 2021, at the Michael J. Sullivan Judicial Center in Woodstock.

The confessional process continues after the admission and can, especially in the case of an admission of child abuse, lead to the formation of a judicial committee of three elders who advise the sinner and are required to involve his or her spouse at some point, Miller said.

In cases of adultery or child abuse, the spouse of the sinner is given an option to seek divorce, Miller said, and in a child abuse case, the spouse also is given the option to report the allegation to authorities.

Some states, such as Texas, make clear that they require Jehovah’s Witnesses to disclose child abuse to authorities in all instances, Miller said, while in others, such as Illinois, it is less clear when exemptions to reporting requirements extend to the faith’s confessional process. In states such as Texas, spouses of sinners are told upon their invitation to a judicial committee that an elder made a report of alleged child abuse to law enforcement.

While the spouse is with a judicial committee, they are not confessing to anything, Miller said.

“She is revealing what the sinner and child has told her,” he said.

The rest of the congregation is informed once the person deemed to have sinned is considered fully repentant, which completes the confessional process, but the details of the sin are not disclosed, Miller said.

Defense attorney Phil Prossnitz examines witness John O. Miller during a hearing for defendants Colin Scott and Michael Penkava Thursday, Dec. 16, 2021, at the Michael J. Sullivan Judicial Center in Woodstock.

The judge also heard the testimony of the child abuse victim’s mother, despite objections from defense attorneys for Penkava and Scott.

“This is clearly, solidly protected [as confidential] in the state of Illinois,” said Penkava’s lawyer, Phil Prossnitz. Scott’s lawyer, Terry Ekl, joined in the objection.

The judge allowed her testimony to proceed but took the step of sealing the courtroom as she was examined by attorneys. That meant the public and the media were prohibited from being in the courtroom during much of her testimony Thursday, as well as Friday’s closing arguments.

McHenry County State's Attorney's Office prosecutor Ashur Youash speaks during a hearing for defendants Colin Scott, left, and Michael Penkava, center, Thursday, Dec. 16, 2021, at the Michael J. Sullivan Judicial Center in Woodstock.
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