March 2022
A McHenry County judge ruled Friday that two Jehovah’s Witnesses elders are guilty of “knowingly and willfully” failing to report to authorities in 2006 that a 6-year-old child in their church was being sexually assaulted by a congregant.
Not reporting the sexual abuse permitted the abuse to go on for another 12 years.
The ruling follows two years of hearings and a bench trial before McHenry County Judge Mark Gerhardt in a case stemming from the 2019 conviction of Arturo Hernandez-Pedraza.
Hernandez-Pedraza, 44, a church congregant, was convicted of sexual assault and other crimes related to the girl’s ongoing sexual abuse. Neither police nor the Department of Children and Family Services were notified until the victim was 18 years old, when she told church elders that the abuse continued.
The girl endured countless sexual assaults and death threats by her abuser throughout her childhood, according to trial testimony. Hernandez-Pedraza is serving 45 years in prison.
On Friday, the church elders, Michael Penkava, 72, and Colin Scott, 88, were found guilty of Class A criminal misdemeanor for violating provisions of the state’s mandatory reporter law. They each face up to one year in jail when sentenced March 25.
Defense attorneys argued that the elders were not mandated reporters. They maintained that Hernandez-Pedraza’s confession, as well as statements made by the child and another church member, were protected under clergy-penitent privilege.
Anything they heard related to the child’s abuse fell under the protection of the confessional process, in the same way a confession made inside a confessional booth in the Roman Catholic Church would, defense attorneys maintained. Gerhardt considered the child’s and the other church member’s statements in his ruling but not the confession made by Hernandez-Pedraza.
Rather than call authorities, Penkava, as he was trained to do as a church elder, said he sought the advice of attorneys at the Jehovah’s Witnesses world headquarters in New York. The abuse was handled through “spiritual guidance,” as was directed by the Jehovah’s Witnesses attorneys.
Scott, who participated in the bench trial via Zoom and did not testify, was part of the three-person judicial committee formed the day after Penkava learned of the abuse. His attorney, Terry Ekl, said he was not part of the decision to not call police.
Scott became involved in the days that followed and participated in “spiritual guidance.”
Under questioning Friday by McHenry County State’s Attorney Patrick Kenneally, Penkava testified that he made the phone call to headquarters but did not know who he spoke to or what their qualifications were as an attorney. But, he said, this person advised that he was not required to report the abuse and he trusted that advice, he said.
In closing arguments, Kenneally said under Illinois law Penkava and Scott are mandated reporters despite their claims they are not.
This case is the reason for which the statute was written, “to stop this in 2006,” Kenneally said.
It was “extremely irresponsible” of Penkava to take advice regarding the protection of a 6-year-old child from someone over the phone, in another state, not even knowing who he was talking to or what their qualifications were, Kenneally said.
“It was ignorance born out of carelessness, their own recklessness and stupidity,” Kenneally said.
If they decide to put themselves in charge of the well-being of a 6-year-old child, “then they better act responsibly,” he said.
“The purpose of the clergy-penitent [privilege] is to shield the flock and not protect the devil,” Kenneally said, adding that what they did protected Hernandez-Pedraza.
The girl and the other church member “already paid the price for [Penkava and Scott] not following the law; now it’s their turn,” Kenneally said.
Assistant State’s Attorney Ashur Youash said the elders knew the girl was an abused child and their defense “went from privilege to bad legal advice.”
He said the mandatory reporting statute is not to protect the church but “to protect a child, to protect an abused child. How absurd would it be to allow a church to cloak itself and avoid state law?” Youash said.
In his ruling, Gerhardt said Penkava’s testimony “was not credible” and ruled that the elders are considered mandated reporters.
“The defendants had an obligation to report [the abuse] whether or not clergy-penitent privilege trumped that,” Gerhardt said. “The defendants chose not to contact DCFS knowingly and willfully.”