The Missoulian typically does not name victims of sexual assault. Nunez, however, agreed to allow the Missoulian to use her name.

The Jehovah’s Witnesses are also appealing Manley’s ruling that Montana’s statutory cap on punitive damages — which sets limits at $10 million or 3% of a defendant’s net worth, whichever is less — is unconstitutional. The cap was set in place by the state Legislature, but Manley’s ruling isn’t the first to reject that maximum set by lawmakers. The argument has not yet been heard in the state Supreme Court, and could become the centerpiece of this case.

Attorneys for the church argue that eliminating that maximum violates the 14th Amendment of the U.S. Constitution, the right to due process. Some states, including Washington, don’t even allow punitive damages. In this case, Nunez was awarded $4 million in compensatory damages, then another $31 million in punitive damages. Attorneys for the church in their appeal called the punitive damage amount “staggering,” “excessive,” “shocking” and “unlawful.”

Cynthia Ford, law professor who teaches a remedies class at the University of Montana’s Alexander Blewett III School of Law, said punitive damages can make an example out of bad actors and wealthy institutions.

“Punitive damages are not very often awarded so it’s a really high standard to even get them,” Ford said. The idea is basically “to prevent them from doing the same thing again and to serve as a lesson to other similarly situated defendants. It’s sending a warning.”

The argument against the cap, she said, is that it would violate the Sixth Amendment rights of the plaintiff. When a jury hashes out what damages the defendant owes the plaintiffs, they are not told or instructed to keep it under that cap; they’re not even told about it. So if a jury awards an amount higher than that cap, but the statute reduces the amount, that can be argued as a violation of a person’s right to a jury trial.

Tort reforms to limit or eliminate such punitive damages, Ford said, have been propelled largely by insurance companies for the last 30 or 40 years.

Montana lawmakers, Ford said, came up with a compromise. After setting the cap, the statute allows punitive damages “for the purpose of punishing a defendant,” but only in certain cases, and not in cases of breach of contract, for example. As to where to draw the line on punitive damages, in light of dueling constitutional rights — “That’s the issue the Montana Supreme Court is going to look at,” Ford said.

In the other part of the appeal, attorneys for the Jehovah’s Witnesses say they should not have been found negligent, because they they could not have violated Montana’s mandatory reporter statute because church elders are not mandatory reporters when such information is offered in confession.

In 2004, Reyes was confronted by the elders and subsequently disfellowshipped after admitting to the abuses. He was reinstated a year later, and in 2012 elders learned Nunez had been abused for years.

 

Attorneys for Nunez argued last year that the confessional exception to the mandatory reporter law shouldn’t apply here, because Reyes was not in confession when he admitted to the abuses. 

But the church argues in its appeal that its legal department at Watchtower, the church’s headquarters in New York, had looked into state law and determined that Montana’s mandatory reporting law didn’t apply to this case because they only learned of Reyes’ abuses years after he had committed them. At the time, no one was in immediate danger, so Watchtower attorneys told the elders in Thompson Falls to deal with the matter internally. 

Critics of the church’s policy said the Thompson Falls ruling was another example in the Jehovah’s Witnesses’ worldwide reckoning in covering up sexual abuse within its keep. By the church’s own policy, reports of abuse are to be forwarded to the legal department in the church’s highest office, which in turn directs congregation elders to conduct proceedings internally and not report these crimes to authorities.

The second part of policy criticized by authorities, attorneys in this case and former church members is the “two-witness rule,” which requires an allegation of abuse to be bolstered by two witnesses before leadership takes any action.

This rule is taken from scripture.

“Christ Jesus establishes that there have to be two witnesses,” senior church official Gary Breaux said in a morning worship video posted online. “We will never change our scriptural position on that subject.”