May 14, 2024
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Statements of abuse allowed at Jehovah’s Witnesses pre-trial hearing

By Amanda Marrazzo
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.

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. (Patrick Kunzer for Shaw Local)

Statements made by a member of a Jehovah’s Witnesses congregation in Crystal Lake about a child being sexually abused by a relative will be allowed at a pre-trial hearing in the case of two congregation elders, a McHenry County judge ruled Thursday.

Church elders Michael Penkava, 71, of Crystal Lake, and Colin Scott, 87, of Cary, are charged with a Class A criminal misdemeanor of violating provisions of the state’s mandatory reporter law.

Prosecutors allege that, as mandated reporters, the elders failed to report the allegations that the female child was being abused by a male relative, resulting in the child being abused for more than a decade longer.

Thursday’s ruling allows prosecutors to present the judge with statements the woman made to Penkava and Scott in 2006 at the pre-trial hearing set for Feb. 24. Prosecutors also will present admissions made to the elders by Arturo Hernandez-Pedraza, the man ultimately convicted in 2019 of abusing the child

McHenry County Judge Mark Gerhardt will then decide if those statements are protected by clergy-penitent privilege and whether they ought to be allowed at trial. Gerhardt also is the presiding judge in the elders’ bench trial, which is set for March 2 and 11.

Judge Mark Gerhardt listens to an argument Friday, Jan 28, 2022, during a motion hearing before at the McHenry County Courthouse on the state’s case against Michael M. Penkava and Collin B. Scott, both elders in a Crystal Lake Jehovah's Witness congregation, who are charged with misdemeanors for failing to report the sexual abuse of a child. Gerhardt listened to a motion on whether a congregant in the church can testify about what she told the two elders or whether that's covered by clergy-penitent privilege and inadmissible.

Judge Mark Gerhardt listens to an argument Friday, Jan 28, 2022, during a motion hearing before at the McHenry County Courthouse on the state’s case against Michael M. Penkava and Collin B. Scott, both elders in a Crystal Lake Jehovah's Witness congregation, who are charged with misdemeanors for failing to report the sexual abuse of a child. Gerhardt listened to a motion on whether a congregant in the church can testify about what she told the two elders or whether that's covered by clergy-penitent privilege and inadmissible. (Gregory Shaver - gshaver@shawmedia.com/Gregory Shaver for Shaw Media )

On Thursday, Gerhardt ruled against a defense motion seeking to quash the prosecutors’ motion for the pre-trial hearing and including the statements in question. Attorneys for the elders had argued that the statements should just come in as part of testimony at trial.

The elders’ attorneys have argued in previous hearings that they are protected from prosecution because the accusations came to light during the confessional process, therefore are considered protected communication between faith leaders and congregants.

It is the same as in a Catholic church where a church member confesses their sins inside the confessional booth, which makes the confession protected, said Penkava’s defense attorney, Philip Prossnitz.

The misdemeanor case stems from the felony criminal trial of Hernandez-Pedraza, 44, who in 2019, was sentenced to 45 years in prison after being convicted by a jury of aggravated criminal sexual abuse, predatory criminal sexual assault of a child, criminal sexual assault, sexual relations within families and domestic battery.

He had sexually assaulted the child over a span of 13 years, prosecutors said at Hernandez-Pedraza’s 2019 sentencing hearing. His victim was sexually assaulted and abused repeatedly from the age of 6 until about 19 years old, according to testimony from the criminal case.

Hernandez-Pedraza also threatened the girl that should she ever tell anyone he would kill her, her mother and her brother, according to testimony at his criminal trial. The girl reported the abuse in 2018 when police ultimately were contacted.

According to court testimony, the only steps taken to protect other children at the church was alerting parents not to leave their children alone with Hernandez-Pedraza.

During the 2019 criminal trial, Penkava invoked his right as a religious leader to not testify.

At a recent hearing in the misdemeanor case, Prossnitz said the presiding judge in the criminal case ruled the clergy-penitent privilege covered such discussions 2006.

“The mandatory reporting statute has an exemption if the disclosure is made within the confines of the clergy-penitent privilege,” Prossnitz said Thursday.

At the time they learned of the sexual abuse, Penkava and Scott contacted lawyers for the Jehovah’s Witnesses at its national headquarters in New York. Attorneys advised them that the information they received was privileged and within the confines of the clergy-penitent privilege. Prossnitz said he thinks the legal advice they received was accurate.

“People may be upset with the outcome of what occurred here, but they need to change the law,” Prossnitz said.

The elders, Prossnitz said, followed the law, the First Amendment to the U.S. Constitution, and the provisions of their religion “scrupulously.”

Penkava taught for 35 years at West Elementary School in Crystal Lake and previously wrote as a freelance columnist for the Northwest Herald.