Attorney’s Advice FULL
Appendix X from Panel Report Appendices
Opinion Letter, Clarification Letter, and Email from Kirton McConkie
Skandan Law LLC
Suite 02-02, Nagarathar Building
5 Tank Road
c/o George W. Pratt
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
December 1, 2021
Re: Opinion Letter – Lokanath Swami
Thank you for the opportunity to advise the International Society of Krishna Consciousness regarding this sensitive matter involving Lokanath Swami. We hope this guidance is helpful in your continuing efforts to address this situation appropriately and with sensitivity to the victim. At the outset, we apologize if we have misused terms or titles or have improperly described any aspect of your beliefs and practices. As you know, the nomenclature, beliefs, policies, and polities of religious organizations are often a world and language unto themselves. So please let us know if we’ve gotten something wrong.
In this opinion letter, we will analyze whether Lokanath Swami faces potential criminal and civil liability for molesting an 11-year-old girl in New Jersey in 1990. We will also analyze whether ISKCON faces any civil liability. We reach the following conclusions:
From our understanding of the facts, it appears Lokanath committed the crime of sexual assault, which carries a presumptive penalty of seven years in prison.
- There is no statute of limitations for this crime. Lokanath could still be arrested and prosecuted in New Jersey.
- Lokanath also faces civil liability to his victim. The statute of limitations for a civil claim does not expire until the victim reaches the age of 55.
- ISKCON should face little risk of civil liability for Lokanath’s misconduct, primarily because there is no evidence ISKCON knew or should have known Lokanath had a propensity for such conduct. That said, these cases are toxic and dangerous, even when it appears the religious organization should prevail.
- If Lokanath were to engage in similar misconduct in the future, ISKCON would face a significant risk of civil liability, including punitive damages.
- Failure to address this matter appropriately could result in additional liability even in unrelated matters in the future.
We recommend that ISKCON not place Lokanath in any position where he has access to children as part of his responsibilities.
These are the facts as we understand them. If we have misstated anything or there is additional information you think we should have, please let us know.
In 1990, Lokanath Swami, a spiritual leader within ISKCON and a resident of India, got injured. Ram Pandey, a member of ISKCON, invited Lokanath to stay at his New Jersey home while recovering. Pandey asked Lokanath to help impart Indian culture to his 11-year-old daughter, Satya. Lokanath touched Satya inappropriately by rubbing her legs and inner thighs while teaching her a musical instrument, smacking her on the butt, and placing the back of his hand on her crotch while reading to her, all over the clothes.
In 1993, Satya brought these incidents to the attention of the Governing Body Commissioner. (We understand that ISKCON is decentralized. Each local temple is independently incorporated with its own board. There are continental bodies, but the North American Council is not incorporated. The global movement is based in India. Each temple is under the supervision of a Governing Body Commissioner (an officer of one of the Indian entities), who is not involved in day-to-day operations but ensures that temples stay within the general philosophical parameters of ISKCON. That GBC body decides who is authorized to act as a spiritual leader within the movement.)
A GBC committee investigated her allegations. Lokanath was suspended from initiating further disciples for five years and his movements within ISKCON were restricted. In 2010, Lokanath issued a public apology. He wrote:
The incident that most distressed Satya, however, took place one morning in the living-room. As we sat reading together, I touched her right thigh and moved my hand between her knee and upper thigh, over her clothing. While I was touching her upper thigh region, I also touched her private part. Satya was clearly shocked and disturbed by this act, and I was immediately overcome by regret and shame at my actions.
Lokanath also sought forgiveness from Satya directly, in writing and in person. At the time, she and her family seemed satisfied.
We now analyze the potential criminal and civil liability for Lokanath Swami, followed by the potential civil liability for ISKCON.
I. Lokanath Swami still faces potential criminal liability.
A. Lokanath’s conduct constitutes sexual assault under N.J. law.
Lokanath’s conduct was sexual assault under N.J.S. § 2C-14-2 (1990). Under N.J.S. § 2C:14-2, “An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least 4 years older than the victim.” N.J.S. § 2C:14-2 (1990). “Sexual contact” is “an intentional touching … either directly or through clothing, of the victim’s … intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S. § 2C:14-1(d) (1990). “Intimate parts” are the “sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.” N.J.S. § 2C:14-1(e) (1990). Because Lokanath touched Satya’s genital area, inner thigh, groin, and buttock for the purpose of sexual arousal, and because she was under 13 at the time, Lokanath is guilty of sexual assault in violation of N.J.S. § 2C-14-2.
B. There is no statute of limitations for sexual assault.
At the time of the offense (1990), the statute of limitations for sexual assault was “five years of the victim’s attaining the age of 18.” N.J.S. § 2C:1-6 (1990). This statute limitations would have expired in 2002. By 1997, however, New Jersey had amended the statute of limitations: “A prosecution for any offense set forth in … N.J.S. 2C:14-2 may be commenced at any time.” N.J.S. § 2C:1-6 (1997). Because the original statute of limitations had not expired when this change was made, the new statute of limitations is applicable. See State v. E.W., 992 A.2d 821, 825 (N.J. App. 2010). Accordingly, it is our opinion that Lokanath could still be charged with criminal sexual assault in violation of N.J.S. § 2C-14-2(b). Sexual assault is a crime of the second degree. Id. § 2C:14-2(c)(5). In 1990 (and still today) the “presumptive sentence” for a crime of the second degree was 7 years, which can be increased or decreased based on a list of mitigating or aggravating factors. N.J.S. § 2C:44-1 (1990).
II. The civil statute of limitations for claims against ISKCON and Lokanath has not expired.
In 2019, New Jersey amended its statute of limitations for civil claims, whether against the perpetrator or a third party, arising from damages caused by sexual abuse. Plaintiffs now have until age 55 to bring claims based on sexual abuse. N.J.S. § 2A-14-2a(1). In R.A. v. W. Essex Reg’l Sch. Dist. Bd. of Educ., 2021 WL 3854203, *12 (N.J. App. Aug. 30, 2021), the court held that this statute was retroactive, meaning it revives claims that were previously barred. In New Jersey, expiration of the statute of limitations does not create a “vested right,” thus, a previously barred claim can be revived by an amendment to the statute of limitations. (New Jersey also opened a two-year window, effective December 1, 2019, for plaintiffs to bring previously- barred claims. “Notwithstanding the statute of limitations … an action at law for an injury resulting from the commission of a sexual assault, any other crime of a sexual nature, a prohibited sexual act … or sexual abuse … that occurred prior to the effective date of P.L. 2019, c.120 (C.2A:14-2a et al.) and which would otherwise be barred through application of the statute of limitations, may be commenced within two years immediately following the effective date.” N.J.S. § 2A:14-2b. This window expires December 2, 2021. But that makes no difference because Plaintiff now has until age 55.) See S.Y. v. Roman Catholic Diocese of Paterson, 2021 WL 4473153 (D.N.J. Sept. 30, 2021) (analyzing New Jersey “vested rights” law).
Sexual abuse victims occasionally sue for emotional damages caused by how the defendant responded to the abuse. Victims have alleged, for example, that they were damaged emotionally because the religious institution shunned them, shamed them into silence, or blamed them for the abuse. New Jersey law only revives claims based on the abuse itself. Any claim based on how ISKCON responded to the abuse would be barred.
III. Lokanath faces civil liability.
Because the civil statute of limitations provides no protection, Lokanath faces civil liability until Satya reaches age 55. Unless Lokanath returned to the United States, service would have to be made pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. While this is time-consuming and can take up to a year, it does not present a substantial hurdle. (https://www.wazirsingh.com/nri-legal-services-in-india/service-of-documents-under-hague-convention.html)
Lokanath would not have any defenses to a civil claim by Satya.
IV. ISKCON does not face civil liability.
For purposes of the analysis that follows, we will assume that Lokanath was an agent of ISKCON. If Lokanath was an agent of some related entity—a local or regional entity, for example—this analysis would apply to that entity.
A. ISKCON does not face respondeat superior liability.
“For liability to attach to an employer under the doctrine of respondeat superior, the plaintiff must prove the existence of an employer-employee relationship and that the employee’s tortious actions occurred within the scope of that employment.” G.A.-H. v. K.G.G., 238 N.J. 401, 415 (2019). “Conduct is generally considered to be within the scope of employment if, it is of the kind that the servant is employed to perform; it occurs substantially within the authorized time and space limits; and it is actuated, at least in part, by a purpose to serve the master.” Di Cosala v. Kay, 91 N.J. 159, 169 (1982). Sexual abuse is obviously not within the scope of employment of a religious or spiritual advisor. Thus, ISKCON could not be held vicariously liable for Lokanath’s criminal misconduct.
B. It is unlikely ISKCON could face liability for negligence.
Because ISKCON is not vicariously liable for Lokanath’s misconduct, Satya would have to prove that ISKCON itself was negligent. Plaintiffs in her position usually sue for negligence in hiring or supervising an unfit agent, or negligent failure to warn about an agent with dangerous propensities. “Unlike respondeat superior, negligent hiring, supervision, and training are not forms of vicarious liability and are based on the direct fault of an employer.” G.A.-H., 238 N.J. at 415.
Based on our understanding of the facts, ISKCON would not face any liability for two reasons: First, under the circumstances in which the abuse occurred, ISKCON probably did not have a duty to protect Satya or control Lokanath. Second, Satya could not prove that ISKCON knew or should have known that Lokanath had a propensity for such conduct.
1. ISKCON probably did not owe Satya a duty of care.
A person generally has no duty to prevent harm caused by a third party. This changes when there is a “special relationship” between that person and either the victim or the perpetrator. “[A] relationship between the victim and one in a position to provide aid may create a duty to render assistance.” Podias v. Mairs, 926 A.2d 859, 864 (N.J. App. 2007). Likewise, a duty “to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons with dangerous propensities” if the defendant has a special relationship with that person. Id.
a. ISKCON did not have a special relationship with Satya.
Every court to address the issue has held that membership, belief, or participation in a religious organization does not create a “special relationship.” Thus, a religious organization has no generalized duty to protect its believers from harm caused by a third party. There is “no authority” for imposing a “duty on … a church to prevent its members from harming each other.” [See Meyer v. Lindala, 675 N.W.2d 635, 640-41 (Minn. App. 2004) (rejecting plaintiff’s argument that a special relationship existed because the church’s “doctrine … provides that members rely on congregation elders for all of their concerns” and requires “that members only associate with other Jehovah’s Witnesses” which “amounts to significant control, which deprived [them] of normal opportunities for self-protection,” because the church “did not have custody or control over [plaintiffs] at the time of the alleged misconduct” and “[p]roviding faith-based advice or instruction, without more, does not create a special relationship”); Bryan R. v. Watchtower Bible & Tract Soc’y, 738 A.2d 839, 847 (Me. 1999) (“The creation of an amorphous common law duty on the part of a church or other voluntary organization requiring it to protect its members from each other would give rise to both unlimited liability and liability out of all proportion to culpability.”); Roman Catholic Bishop v. Sup. Ct., 42 Cal.App.4th 1556 (1996) (no special relationship exists “based on a priest/parishioner relationship”); Doe v. Corp. of the President of The Church of Jesus Christ of Latter-day Saints, 98 P.3d 429, 432 (Utah App. 2004) (“[W]e also reject Plaintiffs’ argument that [church] membership alone was sufficient to establish a special relationship between [the church] and Plaintiffs that created a duty on [the church’s] part to warn Plaintiffs about Tilson.”); Williams v. United Pentecostal Church Intern., 115 S.W.3d 612, 615 (Tex. App. 2003) (holding that churches and child members do not stand in a special relationship); Bouchard v. New York Archdiocese, 2006 WL 1375232, * 6 (S.D.N.Y. May 18, 2006) (“Plaintiff’s allegations do not make out the existence of any sort of special relationship between the Church Defendants and Plaintiff beyond that general relationship between a church or religious body and a congregant. That general relationship is insufficient in law to support the finding of a fiduciary duty.”).] Conti v. Watchtower Bible & Tract Soc’y, 235 Cal.App.4th 1214, 1227 (2015). Thus, Satya cannot say ISKCON had a duty to protect her merely because she was an ISKCON member.
One of the special relationships recognized in New Jersey and elsewhere is that between guardian and ward. See Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112, 122 (App. Div. 2008). Thus, religious organizations do have a duty to protect minors when they are in the organization’s custody and control. “In cases involving minors, courts generally have recognized a special relationship where adults and organizations ‘acted as quasi- parents by assuming responsibility for the safety of [minors] whose parents were not present.’” Doe v. The Roman Catholic Archbishop of Los Angeles, — Cal.Rptr.3d –, 2021 WL 4891312, *6 (Cal. App. Oct. 20, 2021) quoting Doe v. United States Youth Soccer Ass’n, Inc., 8 Cal.App.5th 1118, 1130 (2017).
But Satya was abused in her own home while in her parents’ custody. ISKCON did not have a “special relationship” with her under those circumstances. In Lewis v. Bellows Falls Congregation of Jehovah’s Witnesses, 95 F. Supp. 3d 762 (D. Vt. 2015), the court held that no special relationship existed between a minor parishioner and the Congregation while one of the Congregation’s elders was babysitting the parishioner in his own home. “The Complaint … does not allege True molested Lewis while she was under the care of the Congregation; rather, it asserts True molested her on his property while babysitting her.” Id. at 769. Further, the complaint did not allege “that the Congregation or Watchtower had any involvement in the babysitting arrangement apart from the fact that both True and Plaintiff’s family were involved with the Jehovah’s Witness Church.” (In Lewis, the court also rejected the argument that a church has a duty to warn parishioners even if it does not have a duty to protect. Lewis, 95 F. Supp. 3d at 770.) Id. at 769.
Likewise, because Satya was not in ISKCON’s custody and control at the time of the abuse, ISKCON did not have a “special relationship” with her when the abuse occurred.
b. ISKCON probably did not have had a special relationship with Lokanath.
A religious organization can also owe a duty of care to a victim based on a “special relationship” with the perpetrator of abuse. The traditional master-servant relationship is considered a special relationship. See Doe v. XYC Corp., 887 A.2d 1156, 1168 (N.J. 2005) (noting the master’s “duty to control the servant’s conduct”). Thus, a religious organization does have a special relationship with its clergy and other employees and volunteers that are under its control. This is the primary basis on which the Catholic Church and so many other churches have been held liable for clergy abuse.
But when the servant engages in conduct that is outside the scope of his duties, such as sexual abuse, the organization’s duty is more limited. Id.
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment so as to prevent him from intentionally harming others … if (a) the servant (i) is upon the premises in possess on of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) Torts § 317. Liability exists because “[u]nder these circumstances, a risk of harm to other was reasonably within the master’s range of apprehension.” Doe, 887 A.2d at 1168 (quotation marks and brackets omitted).
Thus, courts have almost universally held that religious organizations are not liable for the off-duty misconduct of their agents. (In this section we rely significantly on cases from other jurisdictions. There are two reasons for this. First, as discussed below, because New Jersey has, until recently, retained charitable immunity for religious organizations, there are few New Jersey cases that address clergy abuse. Second, the general principles are the same in almost every state. There is no reason to believe a New Jersey court would not adopt the same reasoning as these cases.) There must be a connection between the abuse and the cleric’s religious duties. In Roman Catholic Bishop of San Diego v. Sup. Ct., 42 Cal.App.4th 1556 (1996), a 15-year-old parishioner was sexually abused by her priest. The abuse occurred when the priest “took [plaintiff] from her home to various public places and hotels.” Id. Thus, the court held that the church did not have a duty to protect the plaintiff or supervise the priest under the circumstances in which the abuse occurred because it had no control over their private, off-hours, interactions. Id.
In R.A. v. First Church of Christ, 748 A.2d 692 (Sup. Ct. Pa. 2000), a minister’s daughter “struck up a friendship with seven year old plaintiff R.A., who lived with her parents … on the same street as the [minister’s] family.” Id. at 695. “R.A. was often at the [minister’s] house and sometimes attended First Church with her mother or the [minister’s] family” and “also participated in other First Church activities, including an elementary level after school program ….” Id. The minister abused R.A. “All incidents of abuse occurred at [the minister’s] house except on one occasion when some of the abuse may have occurred at R.A.’s own home. None of the abuse occurred on First Church’s premises.” Id. The court rejected R.A.’s negligence claims. “[T]he Church can have no liability … for failing to exercise reasonable care to control [the minister] … because none of the harm was caused on Church premises or on premises to which he gained admittance only as a Church employee.” Id. at 699. The minister’s home was “owned by him and his wife and they were the only parties who had control thereof.” [See also Meyer, 675 N.W.2d at 640 (church had no duty to prevent abuse of minor parishioner that occurred “at [her] residence, on a snowmobile, and in an automobile” and not on church property or during church functions); Doe, 98 P.3d at 432 (affirming dismissal where abuse did not occur “on [church] property, during a [church] sponsored activity, or in connection with [the perpetrator’s] position as a High Priest or scout leader”).] Id.
In Lewis v. Bellows Falls Congregation, 95 F. Supp. 3d 762, the plaintiff alleged that True, an elder, “molested her on his personal property, not on property belonging to the Congregation or Watchtower.” Id. at 768. The plaintiff argued that “the Congregation had a duty to protect her from True because it was aware of True’s prior abuse of minor congregants.” Id. The court rejected the argument because “mere foreseeability is insufficient to establish a duty to control if the servant is not on the master’s premises or using a chattel of the master.” Id. Thus, the court concluded that there “is no ‘special relationship’ between the Congregation and True giving rise to a duty when he is not on the Congregation’s premises or carrying out the Congregation’s business, and therefore the Congregation had no duty to control True when he was babysitting a child outside Congregation activities.” Id.
We understand that Lokanath had traveled to New Jersey on official business but was injured, and that Ram Pandey, on his own accord, invited Lokanath to stay with his family while he healed. ISKCON did not make or control the arrangements, and Lokanath was not in the Pandey home as the result of any ISKCON practice. In other words, our understanding is that this was a private arrangement. Accordingly, we believe ISKCON has a fair argument that it had no duty to supervise or control Lokanath while he was staying in the Pandey home. A court could disagree, however. If ISKCON had known that Lokanath posed a danger to Satya, New Jersey could rely on broad notions of “public policy” to conclude that ISKCON had a duty to warn Satya’s family “because the common law can adapt to the public policy of the times.” [See also G.A.-H., 238 N.J. at 414 (“Courts consider several factors when determining whether a duty of care is owed: fairness and public policy; foreseeability; the relationship between the parties; the nature of the conduct at issue; and the ability to alter behavior to avoid injury to another.”) (quotation marks omitted).] G.A.-H., 238 N.J. at 411. Further, we assume that while he was recovering in the Pandey home, Lokanath was also performing at least some of his religious responsibilities. A court could, therefore, conclude that ISKCON did have a duty to supervise and control him while he was living in the Pandey home. (Since at least 1990, New Jersey law has required “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse” to “report the same immediately to the Division of Youth and Family Services by telephone or otherwise.” N.J.S. § 9:6-8.10 (2009). Some plaintiffs have used a statutory duty to report as the basis for a duty to protect. In this case, however, Satya did not come forward until 1993 and she was not abused after that. Thus, even if some ISKCON official in New Jersey violated a duty to report—and we have no reason to believe that is the case—she suffered no harm as a result.)
3. The abuse was not foreseeable.
Even if a New Jersey court concluded that ISKCON had a duty to supervise and control Lokanath while he was living in the Pandey home, ISKCON would not be liable because it had no reason to anticipate that he would molest Satya.
In cases like this, the principal’s duty is to exercise reasonable care in selecting and supervising its agents. “The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him.” Di Cosala v. Kay, 91 N.J. 159, 171 (1982). In other words, the principal “is bound to use reasonable care to select employees competent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee.” Id. at 172. Liability arises when the employer “knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons.” Id.
An employer will only be held responsible for the torts of its employees beyond the scope of the employment where it knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons.
Id. at 173.
This same standard is applied to claims for negligent hiring and negligent supervision of an unfit employee:
To be found liable for negligent hiring, the plaintiff must show: (1) that the employer knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons and (2) that, through the negligence of the employer in hiring the employee, the latter’s incompetence, unfitness or dangerous
characteristics proximately caused the injury. To be found liable for negligent supervision or training, the plaintiff must satisfy what is essentially the same standard, but framed in terms of supervision or training. That is to say, the plaintiff must prove that (1) an employer knew or had reason to know that the failure to supervise or train an employee in a certain way would create a risk of harm and (2) that risk of harm materializes and causes the plaintiff’s damages.
G.A.-H., 238 N.J. at 416. See also Evan F. v. Hughson United Methodist Church, 8 Cal.App.4th 828, 837 (1992) (“[T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct.”); Juarez v. Boy Scouts of Am., Inc., 81 Cal.App.4th 377, 395 (2000) (“[T]here can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act property without being supervised.”).
It is our understanding there is no evidence that Lokanath had done anything like this before he molested Satya or that ISKCON had any reason to anticipate that he would molest Satya. In the absence of such evidence, any claim against ISKCON should fail.
Plaintiffs will sometimes allege that the abuse was foreseeable because abuse was rampant within the organization generally. This has worked, to a small degree, in claims against the Boy Scouts of America where, for example, one court held that because abuse within Scouting was generally foreseeable, even if the Boy Scouts did not know a particular perpetrator posed a danger, it still had a duty to take reasonable steps to prevent abuse. See Juarez v. Boy Scouts of Am., Inc., 81 Cal.App.4th 377, 397-400 (2000). So far, at least, this theory has not been successful against religious organizations. See e.g., Boy 1, et al. v. Boy Scouts of Am., 832 F.Supp.2d 1282, 1290 (W.D. Wash. May 19, 2011) (“Washington has yet to impose liability on a church for the abuse of a member of the congregation at the hands of a worker absent evidence that the church knew or should have known of that worker’s deviant propensities.”). Further, such a theory is more likely to apply when a young person is participating in a youth camp or other activity controlled by the organization charged with protecting the youth participants. We do not believe it would apply to this case.
V. Considerations other than liability.
In sum, ISKCON should face little risk of civil liability on these facts. This does not mean a plaintiff’s attorney would be unwilling to file suit. Plaintiff’s attorneys are clever enough to plead a claim that could overcome a motion to dismiss. And a plaintiff’s attorney can then create significant pressure in ways having little to do with the merits of the case:
- Plaintiff’s attorneys will seek as much publicity as they can, and use that publicity to troll for other claims against the defendant and to create settlement pressure.
- Plaintiff’s attorneys will use liberal discovery mechanisms to request all internal communications and documents regarding the matter at hand.
- Plaintiff’s attorneys will use discovery to seek information about other abuse allegations involving ISKCON employees and agents. They will argue that other abuse matters are relevant to show a pattern of ignoring or covering up abuse claims, or that it’s relevant to punitive damages.
- Plaintiff’s attorneys will use discovery to ask for financial or other sensitive records.
- Also, courts often bend over backwards in sexual abuse claims against religious organizations to avoid dismissal.
These cases are simply toxic and dangerous, even when it appears the religious
organization should prevail.
VI. The New Jersey charitable immunity statute provides some additional protection.
New Jersey is one of the few states that still provides immunity to charitable organizations for ordinary negligence:
No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or
volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to
whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer
damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside the benefactions of such corporation, society or association.
“By the plain meaning of N.J.S.A. 2A:53A-7(a), an entity qualifies for charitable immunity when it (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.” Hardwicke v. American Boychoir Sch., 902 A.2d 900, 916 (N.J. 2006).
A. Charitable immunity does not apply claims for negligent hiring, supervision, retention.
In 2006, however, New Jersey amended the charitable immunity act to eliminate immunity for “a claim in any civil action that the negligent hiring, supervision or retention of any employee, agent or servant resulted in a sexual offense being committed against a person under the age of 18 who was a beneficiary of the nonprofit organization.” N.J.S. § 2A:53A- 7.4. But it would still apply to a claim for negligent failure to warn, for example, which is significant in a case like this.
B. Charitable immunity does not apply to claims for gross negligence or willful misconduct.
In 2019, New Jersey eliminated charitable immunity when the defendant is guilty of “willful, wanton, or grossly negligent” conduct that results in sexual abuse:
(c) Nothing in this section shall be deemed to grant immunity to:
(1) any nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes, or its trustee, director, officer, employee, agent, servant or volunteer, causing damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault, any other crime of a sexual nature, a prohibited sexual act as defined in section 2 of P.L.1992, c.7 (C.2A:30B-2), or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1).
N.J.S. § 2A:53A-7(c)(1).
New Jersey law does not cap noneconomic damages. Punitive damages are capped at “five times the liability of that defendant for compensatory damage or $350,000, whichever is greater.” N.J.S. § 2A:15-5.14(b).
Conclusions and Recommendations
As noted, Lokanath still faces the possibility of criminal and civil sanctions. ISKCON’s risk of liability is low. In looking at other considerations, we offer the following thoughts and recommendations. Some of these will not apply to this circumstance, but could be useful in the future:
- Known perpetrators should rarely be “reinstated” and should never be placed in any position where they have access to children, for at least the following reasons:
- First and foremost, to protect children. Recidivism rates are high among child molesters.
- Second, to protect the organization from liability. If Lokanath were to abuse another child, ISKCON would face significant liability.
- Third, even in unrelated matters, plaintiff’s attorneys will use the reinstatement of a known perpetrator to show callousness and a willful disregard of the safety of children, which can result in substantial punitive damages.
- Fourth, reinstatement can damage the faith of believers and victims of abuse often take it as a sign that the organization does not care about their trauma.
- It is critical that religious organizations have in place the very best practices and procedures for dealing with allegations of sexual abuse. Though these may differ based on the unique structure and beliefs of the religious organization, the following are a few of the critical measures that are now almost uniform among religious organizations:
- Exclude known perpetrators from all positions where they will have contact with children.
- Ensure that reporting laws are always obeyed.
- Avoid, wherever possible, one-on-one interaction between adults and children.
- Never discourage a victim or his or her family from reporting abuse to authorities or from testifying against a perpetrator.
- Never disregard a report of abuse. Experience shows that victims rarely make up abuse.
Finally, the media love stories about “clergy abuse.” The victim or her advocates, or a plaintiff’s attorney, would have little difficulty bringing media attention to this matter, especially if Lokanath were placed in any prominent role or were deemed to have been insufficiently punished. Such publicity would increase the risk of Satya filing a claim and could result in others coming forward with claims against ISKCON as well.
We are happy to discuss these conclusions or assist in any way we can after you’ve had a chance to review this letter.
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c/o George W. Pratt
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
January 13, 2022
Re: Opinion Letter – Lokanath Swami – Response to Request for Clarifications
We write in response to your follow-up questions and request for certain clarifications. Thank you for the addition information you provided.
1. Would the touches be criminal if they were unintentional?
No. An unintentional touch on any part of Satya’s body would not be criminal under any New Jersey law. New Jersey law requires an “intentional touching … either directly or through clothing, of the victim’s … intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S. § 2C:14- 1(d) (1990). If any of the touches were either (1) unintentional, or (2) not for the purpose of sexual arousal or sexual gratification, they would not be criminal. (If the touching were unintentional, that would also mean Satya could not prevail on a tort claim against Lokanath Swami for battery or assault, which are both intentional torts; she would have to plead some kind of negligence claim.)
2. Would all three touches be criminal?
There were three different touches: (1) a rub on the leg during harmonium lessons, (2) a pat on the butt, and (3) resting the back of his hand on her crotch/groin area while reading. A person’s “intimate parts” include the “genital area, … inner thigh, groin, [and] buttock ….” N.J.S. § 2C:14-1(e). Thus, if the touching was intentional and done for the purpose of sexual arousal or sexual gratification, touches (2) and (3) would be criminal, touch (1) would only be criminal if the rub was on the inner thigh.
3. Is ISKCON protected by charitable immunity?
You asked for clarification about whether ISKCON is protected by charitable immunity under New Jersey law. ISKCON would not be protected against claims of negligent hiring, negligent retention, negligent supervision, or gross negligence, but would be protected against any other kind of negligence claim. If Satya chose to sue ISKCON, she would probably plead negligent supervision and gross negligence. But, again, she would have to establish that ISKCON had a duty to supervise and control Lokanath Swami while he was living with Satya’s family. She would also have to plead and prove that ISKCON knew or should have known that Lokanath Swami posed a danger to her, which likely means proving that he had done something like this before. For reasons explained in our previous letter, we believe she would have a difficult time prevailing on any claim against ISKCON.
Given the amount of time that has passed and the fact that Satya’s story has some inconsistencies, we believe criminal prosecution is unlikely, but not inconceivable.
For reasons we have explained, we believe Satya would have a difficult time establishing civil liability against ISKCON, but would likely prevail in a civil claim against Lokanath Swami. We emphasize again, however, that these are highly volatile and risky cases.
In your shoes, our primary concern would be the fact that this situation increases the future risk of liability if ISKCON does not handle it properly.
We are happy to discuss these conclusions or assist in any way we can after you’ve had a chance to review this letter.
2/20/22, 8:52 AM Gmail – Lokanath Swami
Navina-Syama dasa <firstname.lastname@example.org>
Justin Starr <email@example.com> Tue, Jan 18, 2022 at 8:40 PM
To: Navina-Syama dasa <firstname.lastname@example.org>
Cc: GEORGE PRATT <email@example.com>, Randy Austin <firstname.lastname@example.org>, Timothy Burton Anderson
As the New Jersey reporting statute is worded, a person who learns about child abuse three years after it occurs would still have a duty to report. That is at least what the plain language of the statute says. In our experience, however, the law would not be enforced against a person who learned about abuse three years after the fact when there was no present risk of abuse. But the main point of the last sentence you quote below is this: any violation of a duty to report could not be used as a basis for civil liability because no abuse occurred after any failure to report. The failure to report could not have been the cause of any of the abuse and therefore could not be a basis for liability.
I hope that helps.
From: Navina-Syama dasa <email@example.com>
Sent: Saturday, January 15, 2022 7:54 AM
To: Justin Starr <firstname.lastname@example.org>
Cc: GEORGE PRATT <email@example.com>; Randy Austin <firstname.lastname@example.org>; Timothy Burton Anderson
Subject: Re: Lokanath Swami
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