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SALT LAKE CITY — The Utah Supreme Court heard arguments Monday in a case alleging male leaders of a Jehovah's Witnesses congregation in Roy forced a 15-year-old girl to listen to a recording of a man raping her in 2008.
Lower courts found the church is not liable for the incident under protections of the First Amendment.
The state's high court has not yet made any ruling, but one justice made his views on the alleged conduct clear.
"The allegation here is a mental and emotional equivalent of waterboarding," Justice Deno Himonas said. "I've been a judge for a long time and a lawyer for a long time. I've never seen, in court, anything like this that's alleged."
The justice was responding to an attorney for the church who referenced the torture in defending her clients. Lawyer Kara Porter said she would draw a line at such physical harm. But she emphasized the woman in the case alleges intentional infliction of emotional distress.
Attorneys for the woman now in her late 20s argue that lower courts got it wrong when they ruled that the First Amendment shields the church from liability.
They say that Utah's highest court will set a dangerous precedent if it decides to grant such protection, effectively permitting other harmful conduct by religious organizations like sharing a person's medical records or repeatedly striking a child in the face.
Porter emphasized that the tribunal was trying to determine whether the girl had sinned, a process the government isn't permitted to meddle in.
The woman sued the four elders, the Roy church and the religion's national organization, the Watchtower Bible and Tract Society, in Oden's 2nd District Court in 2016. She alleges she cried, shook visibly and pleaded for them to stop as they played the recording intermittently over the course of at least four hours in 2008. Their goal was to extract a confession that she had voluntarily engaged in sex outside of marriage, her attorneys contend.
She alleges she was 14 years old when the man, a fellow Jehovah's Witness, 18, bullied her increasingly and began sexually assaulting her in December 2007. She alleges he raped her several times and provided her congregation's leaders a recording of one instance.
She sought out counseling and medical treatment as she dealt with anxiety, nightmares and poor performance in school, her attorneys say. They note that before she appealed, the 2nd District Court ruled it would have "no hesitation" in sending the case to a jury if it pertained to a secular setting.
"It's an important and difficult case," Chief Justice Matthew Durrant said at the conclusion of the hearing that lasted about an hour and a half.
The justices on Monday peppered lawyers on both sides with questions about where a legal line should be drawn in civil claims tied to religious matters. Both parties agreed that the allegations do not fit any criminal offense.
Justice Paige Petersen said the answer may be a matter of degrees.
Simply convening the church tribunal process could distress a person in the faith who knows the conduct is viewed as a sin, Petersen noted. On the other end of the spectrum, she said, a group may believe it must do anything necessary to find out what happened, even if the process includes torture.
"How do we draw lines there?" Petersen said.
The U.S. Supreme Court has held that a government action violates the First Amendment's prohibition on establishing religion if it fosters an "excessive entanglement with religion."
The Utah Court of Appeals ruled last year that adjudicating the woman's legal claim would amount to excessive entanglement because it "requires an inquiry into the appropriateness of the church's conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment."
Her attorneys disagree.
Lawyer Robert Friedman said he doesn't dispute there were religious reasons at play, "but the motive cannot justify the conduct."
Moreover, the case doesn't require a court to interpret religious teachings or determine whether someone's religious beliefs are true or false, the sorts of moves the First Amendment prohibits.
In addition to the free-speech argument, attorneys for the elders and church have argued the lawsuit lacked facts to support the claim. They have also previously said the men had a duty in their faith to investigate allegations of sin and the teenager could have walked out of the meeting with her parents.
Justice Thomas Lee raised the question of whether religious discrimination factors in due to Utah's predominant faith, The Church of Jesus Christ of Latter-day Saints. He noted a jury could mainly consist of members of that faith.
"Don't you think that there's a serious concern that that body and that group is going to be making a judgement based on their beliefs of what religious orthodoxy and reasonableness is?" Lee asked.
Friedman countered he believes those issues could be ferreted out by a judge, including in the jury selection process and in instructions given to jurors before they deliberate.