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THE DISFELLOWSHIPPING OF GRY NYGÅRD — A VIOLATION OF BIBLE PRINCIPLES PART I

By 18. September 2021August 5th, 2022Disfellowshipping

—REVIEW—

The following points are discussed:

Hearing the case on its merits.

The Supreme Court has stated that disfellowshipping from a religious denomination can be considered by a court if:

1. The rules of the denomination for the handling of judicial cases have been violated.

2. The ruling builds on a clearly wrong basis.

3. The person’s security under the law is set aside and violated.

4. If the situation has great importance for the person.

Two of the judges argue that the court can hear the case of Nygård, and one judge disagrees with this.

The majority of the Court of Appeal ruled that the disfellowshipping of Nygård is invalid.

Nygård and a male friend had dinner at Hotel Plaza in Oslo. After dinner, both went to the room of the man so she could get her coat and leave. Nygård, who has the chronic fatigue syndrome ME, which often makes her very tired, lay down on the bed for a rest fully clothed. When she woke up the next morning, she did not have any clothes on. The man told her later that he had had oral sex with her while she was sleeping. Nygård was disfellowshipped. But she was not told for which action she had been disfellowshipped. It was only implied that the reason was sexual immorality (porneia). The question the court had to decide was whether the disfellowshipping of Nygård was wrong and therefore, invalid.

The majority (two judges) have ruled that Nygård’s disfellowshipping is invalid, and the reason is first of all that her security under the law has been set aside and violated.

The judicial committee has not considered whether Nygård willingly accepted oral sex. So no conclusion was reached regarding the most important issue of the situation, whether Nygård was raped or not. This prevents her from seeking reinstatement, which requires that she expresses regret over what she allegedly did, but it is not possible to regret something that is unknown to her, something she has not done.

The majority has ruled that JW must pay Nygård 100,000 kroner for damages and her legal costs of about 900,000 kroner.

The minority of the Court of Appeal: The disfellowshipping of Nygård is valid.

The minority of the court (one judge) argues that the case should be dismissed because the issues that must be considered basically are based on religious considerations. And these are outside of the jurisdiction of the court. The opinion of the judge is that the disfellowshipping of Nygård was correct because the judicial committees built on a consideration of all the actions of Nygård. This would contradict the procedures of the book for elders because considerations of many actions (all the actions) cannot be presented as a single piece of proof. Because the disfellowshipping was correct, damages cannot be paid to Nygård.

Considerations of the work of the committees from the viewpoint of the book for elders

The judicial committee will look for evidence that the person has committed a sin that can lead to disfellowshipping. If such a sin is committed, the committee must consider whether the person has regretted the sin. The appeal committee must consider whether the judicial committee has followed the procedures of the book for elders.

Neither the statements of the members of the judicial committee nor of the appeal committee, as reported in the District Court or Court of Appeal, nor the written report of the committees show that the procedures of the book for elders have been followed. Of which sin Nygård is guilty is not expressed anywhere, and the judicial committee has not told her what she is supposed to have done. Neither is there any information on whether the judicial committee has considered if Nygård has expressed regret or not.

The appeal committee considers whether the book for elders has been followed. But this they cannot have done, since neither the judicial committee nor the appeal committee points to any concrete proof for the sin that Nygård is supposed to have done, and Nygård cannot express regret for something that is unknown to her.

The accounts of the committees in the District Court and the Court of Appeal and the report from the meeting of the judicial committee show that the book for elders has not been followed.

All parties agree that sexual immorality occurred at Hotel Plaza on March 10, 2018. Nygård was disfellowshipped because of this sexual immorality. No proof has been presented showing that Nygård consented to the oral sex performed by the man. Oral sex with a sleeping person is, according to Criminal law, rape. Therefore, objectively speaking, Nygård was disfellowshipped because she was raped.

Considerations of the work of the committees from the viewpoint of the Bible

It is not the actions of a person that are mentioned in 1 Corinthians 6:9, 10, that are the basis for disfellowshipping. What is mentioned are personalities. Only persons who are permeated by one of the wicked actions listed deserve to be disfellowshipped. The Norwegian NWT translation of 2017 says that “de som praktiserer  seksuell umoral” (“those who are practicing sexual immorality”), i.e., only those who do the same wicked actions over and over again — must be disfellowshipped.

The committees have not presented evidence that Nygård committed the sin of sexual immorality on March 10, 2018. But even if she had done that, she should not have been disfellowshipped because she had not “practiced sexual immorality.”

The Governing Body has several times added new meanings to the word porneia. None of these meanings fit the actions of Nygård.

The most important conclusions of the majority of the Court of Appeals are listed below:

Deciding for the majority are several sides of the process of disfellowshipping that do not directly have to do with issues of faith. Among other things, the majority does not have a basis for deciding whether clearly wrong data are the reason for the decision, cf. Rt-2004-1613. The reason is, as the majority will return to below, that it is not known which data has been the basis for Jehovah’s Witnesses. The presentation of the evidence has further revealed that central issues seem to have been overlooked or have not been decided, illogical and unacceptable reasonings occur, means to test what is the basis for the committees are lacking, and Nygård has not been informed of the reason why she has been disfellowshipped. All this taken together shows that the fundamental security under the law is set aside in the process of disfellowshipping, as the majority sees it.

 

The transcript of the decision of the court says that anything in the transcript can be made public, and I will quote extensively from the transcript. In some instances, a quotation is made two times, but the viewpoint of each context is different. I use initials rather than full names. The words “Ref.” with a number following refers to the page of the transcript.

 

When a member of the Christian congregation becomes wicked (poneros) — it means that he is permeated by one of the actions specifically identified in the Christian Greek Scriptures as being a disfellowshipping offense, only then should the person be disfellowshipped. This is what the apostle Paul said in 1 Corinthians 5:13.

The book God’s Kingdom Rules, page 114, says: “Christian elders are carefully trained to care for judicial matters in Jehovah’s way.” This simply is not true! At a course for elders around 1990, it was discussed in detail how judicial cases should be handled. Since then, elders have attended courses approximately two days per year, and judicial cases have only occasionally been mentioned. But there have been no systematic discussions or “careful training” for those who will make up judicial committees. When a serious sin is revealed, the body of elders decides which three elders should consider the case. These are not formally trained in any way. Their only “training” is the reading of the book for elders, but we cannot learn how to treat in a godly way humans who have sinned by reading a book.[1]

Not only are the elders not trained, but often newly appointed elders are selected to serve on these committees in order to receive “on the job training” with more experienced elders. Despite these good intentions, the problem now becomes that these brand-new elders have absolutely no training of any kind and often have not even read the book for elders. So, not only are the experienced elders not “carefully trained,” but they may be accompanied by new elders who have no training whatsoever. Yet, these men have been given the authority by the Governing Body to make subtle and often complicated distinctions regarding a person’s guilt or innocence, i.e., should the accused be allowed to remain a part of the congregation or be excluded — disfellowshipped. To be sure, these critical decisions reside in the hands of untrained men!

Therefore is Nygård’s case, which has been considered by three different courts, so important. The three members of the judicial committee and the three members of the appeal committee had to answer questions regarding how they have handled the disfellowshipping of Nygård. This gives us a unique insight into how judicial cases are being handled. And we see that none of the committees have followed the procedures given by the book for elders or the requirements of the Bible. This is something that often happens, and it shows that individual Witnesses do not have any security under the law. The committees can treat those who are accused of a serious sin in the way they want,  contrary to the procedures of the book for elders and the requirements of the Bible. And no one can challenge their decision because there is no transparency, and no one will be allowed to consider the handling of the case by the elders.

In Norway, there are four different courts, the Conciliation Court (Forliksrådet), the District Court (Tingretten), the Court of Appeal (Lagmannsretten), and the Supreme Court (Høyesterett). On July 9, 2021, the Court of Appeal made a ruling against Jehovah’s Witnesses. On September 16, 2021, the case was appealed to the Norwegian Supreme Court.

THE SITUATION

Gry Nygård was 16 years when she was baptized, and she had belonged to different congregations of JW for 31 years when she was disfellowshipped. She was separated from her husband. On March 10, 2018, she had dinner with a male Witness from another congregation who was divorced. They drank wine with their food, but they were not intoxicated.

The woman has the chronic fatigue syndrome ME, and so is often very tired. She had left her coat in the hotel room of the man, and after dinner, they went to the room to get her coat so she could travel home. She was tired, and she lay down on the bed for a little rest fully clothed. When she woke up the next morning, she was naked. The next day, the man called her and told her that he had had oral sex with her while she was sleeping.

She called an elder in the congregation and told him about what had happened. But she strongly denied that she was guilty of sexual immorality. The elders decided that a judicial committee should consider the case, and she was disfellowshipped. She wrote a letter of appeal, where she said that she was very sorry for what had happened. An appeal committee met with her and the original judicial committee, and the members agreed with the original committee; her disfellowshipping was confirmed.

On  June 10, 2018, she wrote a letter asking to be reinstated. But that was denied. She wrote a new letter asking to be reinstated on September 3, 2018, but this was again denied. She wrote two letters with several questions regarding her disfellowshipping to the circuit overseer — an elder who visits several congregations to check that all the decisions of the Governing Body have been carried through. But he did not answer her questions. She also wrote several letters asking why she had been disfellowshipped to the elders in the congregation. But she got no answers.

Because her questions were not answered, and her applications for reinstatement were denied, in 2019, she contacted a lawyer, and he filed a complaint on her behalf to the Conciliation Court. The decision of the court of  June 5, 2019 was that her disfellowshipping from her congregation was invalid, and the congregation had to pay her 100,000 Norwegian kroner in damages, as well as her legal costs.

The congregation of JW sent a writ of summons to the District Court, claiming that the decision of the Conciliation court must be annulled. On February 27, 2020, the District Court decided in favor of JW, and the decision of the Conciliation Court was annulled.

Nygård appealed to the Borgarting Court of Appeal, and the appeal hearing occurred on June 2-4, 2021. Three issues were decided:

  • Should the case be dismissed because the issues were strictly religious?
  • Was the disfellowshipping of Nygård invalid?
  • If so, should Jehovah’s Witnesses pay damages to Nygård?

The opinion of one of the three judges was that the case had to be dismissed because the issues were strictly religious, and therefore they were outside the jurisdiction of the court. The two other judges disagreed, and they would hear the case because the security of Nygård under the law was set aside and violated. The issue was that she told the elders that the man had oral sex with her while she was sleeping. But she was disfellowshipped because of sexual immorality (porneia).

On July 8,  2021, the two judges ruled that the disfellowshipping was invalid and that the congregation of Jehovah’s Witnesses had to pay Nygård 100,000 Norwegian kroner in damages and 900,000 kroner in legal costs (about  90,000 Euro or the US $ 110,000).

The congregation appealed the decision to the Supreme Court on September 16, 2021.

THE RIGHT OF A JUDICIAL REVIEW OF THE COURT

Regarding the issue, the Court of Appeal wrote:

The Court of Appeal will decide whether the decision of Jehovah’s Witnesses to disfellowship Nygård can be judicially considered by the court and if so if the decision is valid. (Ref. 9)

In order to consider the right of the court to make a judicial review, Norwegian laws and judicial principles had to be considered. The judges use two different expressions, “existing law” and “principles outside existing law.” It is The Law of Religious Denominations of 1969 that is the existing law by which the case would be judged. Other laws and considerations made by judicial experts that are not existing law may function as guiding principles.

The application of the Law of Religious Denominations of 1969 as the “existing law”

The two majority judges start their discussion of “existing law” by referencing The Law of Religious Denominations of 1969:

We have religious freedom in Norway, cf. the Norwegian constitution § 16 and EMK article 9 nr. 1. This means that everyone can believe what they choose to believe. The right of free exercise of one’s religion also means the right to create autonomous religious denominations, where the denominations have the full freedom of action in connection with religious issues that are connected with their activity, and where the courts have no right to intervene.

However, a few restrictions must be made in connection with this situation. According to The Law of Religious Denominations of 1969 § 10, which no longer is the existing law, “no one must use improper arguments, promises of threats, or proceed by other questionable means for the purpose of persuading another person to join or resign from a religious community.”

The important point here is to distinguish between the autonomy of the religious denominations and where Norwegian law can modify this autonomy. Every religious denomination can make its own laws, including laws about disfellowshipping. And religious denominations have the right to enforce these laws without any intervention from others. A court has no right to scrutinize or overrule the laws of a religious denomination. But it may be that such laws or rules are practiced in a way that Norwegian laws or their principles are violated. In such a case, a court has the right to consider the situation.

The Law about Religious Denominations from 1969 mentions the following that is forbidden:

  • Improper arguments for the purpose of persuading a person to enter or leave a religious denomination.
  • Promises for the purpose of persuading a person to enter or leave a religious denomination.
  • Threats for the purpose of persuading a person to enter or leave a religious denomination.
  • To proceed by other questionable means for the purpose of persuading a person to enter or leave a religious denomination.

These points show that the religious denominations cannot do anything they want under the blanket of religious immunity, i.e., claiming that this is an internal religious matter. A religious denomination can be held responsible for violating one of the four points above.

The “existing law” based on the decisions of the Supreme Court

The Norwegian Supreme Court has not considered any case in connection with the disfellowshipping from a religious denomination. But it has considered a case where persons were denied the right to enter a religious denomination. So, the considerations in the ruling of the Supreme Court can also be applied to cases where someone is ‘denied the right to remain’ in a religious denomination due to being disfellowshipped under certain qualifying conditions.

In Rt-2004-1613 the Supreme Court writes (Ref. 12, 13):

31. A condition for getting a decision considered by a court must be that the lawsuit does not require a consideration of religious issues on the part of the court. This must follow from the freedom of religion that is settled firmly by the Norwegian Constitution § 2, letter a, and the European Convention of Human Rights, article 9, no. 1.

33. the autonomy of religious denominations cannot go so far that refusal of membership and exclusion from the community of faith in any case, cannot be considered by the courts, independent of what is asserted by the plaintiff regarding the material claim that is brought forth.

34. Even though the element of faith is central in a religious denomination, refusal of membership or other strong sanctions could be based on circumstances that are not related to issues of faith. Such decisions may have been made without following the procedures or by-laws of the denomination. The decisions may also have been built on a clearly wrong basis, and the fundamental rule of the security under the law can be overridden, cf. in this connection The Law of Religious Denominations § 10, that restricts the possibility of using pressure to cause persons to enter or leave the denomination.

As long as decisions are of great social welfare for the person who is targeted, and the lawsuit does not require a consideration of religious issues, in my opinion, the lawsuit cannot be dismissed… (Lagm.r. pages 12, 13)

From the considerations of the Supreme Court, it is clear that there can be issues in connection with a disfellowshipping from a religious denomination that are not in the category of “religious issues,” and therefore can be considered by a court.

After quoting the considerations of the Supreme Court, the two judges, who were the majority of the Court of Appeal, make the following comments (Ref. 13, 14):

Even though the decision did not directly apply to disfellowshipping from a religious body, it must be stated that Rt-2004-1613 at present expresses the “existing law” in connection with disfellowshipping someone from a religious denomination. Whether international sources make other bounds must be considered in relation to issues that possibly may show that the disfellowshipping is invalid; see below.

The majority takes paragraph 34 in Rt-2004-1613 to mean that even though a disfellowshipping from a material point of view is decided on the basis of criteria and considerations that are related to issues of faith, the courts can consider if the disfellowshipping accords with the procedural rules and the by-laws that the religious denomination itself has made, and whether there is an overriding of the security under the law, or whether clearly wrong data are the reason for the decision. It is not acceptable that any side of a decision that is based on faith issues can be excluded from consideration by a court. That would open the way for abuses under the pretext that this is the exercise of the faith.

Whether a disfellowshipping from a religious denomination is valid can be considered by a court  if:

1)     The procedural rules and by-laws of the denomination are not followed.

2)    The decision is built on clearly wrong data.

3)     The fundamental security under the law is overridden.

The case of Nygård would be considered by the court on its merits

After considering the “existing law,” the majority judges concluded (Ref. 15):

On the basis of Nygård’s pretention that the congregation has made the decision in violation of the congregation’s procedural rules and has overridden the fundamental security under the law, the majority has no doubt that the case must be heard by the courts. We refer to the previous decision of the Court of Appeals that there is no basis for dismissal (LB-2020-011024), and the majority’s view of the reality that Nygård has a legal claim of making the disfellowshipping invalid, cf. Tvisteloven § 1-3, first letter.

THE CLAIMS

Nygård has the following claims:

  • The disfellowshipping of Gry Helen Nygård from Jehovah’s Witnesses — the Ski congregation is invalid.
  • Jehovah’s Witnesses — Ski congregation must pay damages to Gry Helen Nygård, according to the valuation of the court, upward to 250,000 kroner.
  • Jehovah’s Witnesses — Ski congregation must pay the legal costs of Gry Helen Nygård in the Conciliation Court, the District Court, and the Court of Appeal.

The Ski congregation has the following claims:

  • The case is dismissed

Alternative:

  • Point 1 in the appeal over the ruling of the District Court is dismissed.
  • Jehovah’s Witnesses — Ski congregation gets the legal costs for all the court cases.

THE PRONOUNCEMENT OF JUDGMENT OF THE COURT OF APPEAL

  1. The decision of Jehovah’s Witnesses of the disfellowshipping of Gry Helen Mollan Nygård is invalid.
  2. Jehovah’s Witnesses – the Ski congregation is judged to pay 100,000 – one hundred thousand – kroner as compensation for non-economic loss (compensation) to Gry Helen Mollan Nygård within two weeks after the service of process of this judgment.
  3. As litigation costs for the Court of Appeals, Jehovah’s Witnesses — the Ski congregation must pay 512,063.50 – five hundred and twelve thousand and sixty-three 50/100 – kroner to Gry Helen Mollan Nygård within two weeks after the service of process of this judgment.
  4. As litigation costs for the District Court court, including the previous handling  in the Conciliation Court, Jehovah’s Witnesses – the Ski congregation pays 386,082 – three hundred and eighty-six and eighty-two kroner to Gry Helen Mollan Nygård within two weeks after the service of process of this judgment.

THE HANDLING OF THE CASE BY THE COMMITTEES FROM A LEGAL POINT OF VIEW

If two elders find that there is evidence that a member of the congregation is guilty of a serious sin, a judicial committee will be formed. The purpose of the committee is to find out exactly what has happened. If there is evidence of a serious sin, the committee wants to determine if there is repentance.

There are great weaknesses with these procedures. First, the elders have not received any education in how to handle cases that can lead to disfellowshipping. When there is a serious sin, three elders are admonished to read about how cases should be handled in the book for Elders. But it is not possible to learn how to treat humans in a difficult situation by reading a book.

Second, the appeal committees do not in reality function as committees of appeal. Before the appeal committee meets the person whose disfellowshipping is pending, its members have a meeting with the judicial committee, and the appeal committee members are informed about the conclusions of the judicial committee. This step in the appeal process creates problems from the outset because the members of the appeal committee must learn about the conclusions drawn by the judicial committee via the biased viewpoints of the members of the judicial committee who, naturally, desire to have their disfellowshipping decision exonerated.

Therefore, in most situations, the members of the appeal committee are led to have a particularly negative view of the person. And few appeal committees make an evaluation of the case independent of the evaluation made by the judicial committee. I do not have any statistics, but my experience is that it almost never happens that an appeal committee overturns the decision to disfellowship made by the judicial committee.

Is Nygård guilty of a sin that deserves disfellowshipping?

The data that will be presented will show the incompetence of the members of the judicial committee and the appeal committee and that the appeal committee has not conducted an independent evaluation of the case.

The whole thing started on March 13, 2018, when Nygård sent the following message to the elder KS in the Ski congregation (Ref. 2):

Hello. I need to speak with you elders. I have come into a situation that I do not know how to handle, and I think it is good to speak to you for safety. I hope that this will be possible. Greetings from Gry.

KS asked her to describe the situation, and she wrote:

Yes. The situation is that something happened while I was asleep. Whether I have crossed the border into porneia I do not know.

We see that Nygård does not say that she is guilty of porneia, because what happened to her happened while she was asleep, and she says that she needs to speak with the elders “for safety.” So she wanted to discuss the situation with the elders in order to get some clarification. Nygård asks, in reality, for the help of the elders.

The transcript of the ruling says on page 3:

Nygård met with the judicial committee on March 22, 2018. On the basis of what she said, the judicial committee found reasons to disfellowship her from Jehovah’s Witnesses.

Nygård has expressed the following:

  • She is separated from her husband, and she had dinner at Hotel Plaza with another male Witness who is divorced from his wife.
  • They consumed some alcohol together with their dinner. But they were not intoxicated.
  • After dinner, she and the man went to his room to get her coat so she could travel home.
  • She has the chronic fatigue syndrome ME, which often makes her very tired. She lay down on the bed for a short rest fully clothed and fell asleep.
  • She slept until the next morning, and then she woke up 11.30 a.m. without clothes.
  • The next day, the man called her and confessed that he had performed oral sex on her while she was sleeping.

If this account is correct, there was no reason to disfellowship Nygård. To be sure, it was not wise to have dinner with the man because none of them were free to marry. And neither was it wise to drink alcohol in such a situation since alcohol lowers one’s discernment and inhibitions. Nevertheless, acting in an unwise way is not a reason to disfellowship.

If it is correct that the man performed oral sex on her while she was sleeping, this is the same as rape according to the Criminal Code § 291, point b, and she would have no responsibility for this action. The duty of the judicial committee was to find out whether oral sex had occurred without her consent.

Because Nygård, in her message to KS, wrote that the action that could potentially be classified as porneia occurred while she was sleeping, and because she said the same thing to the judicial committee, it is incomprehensible that she was disfellowshipped. The majority of the court also says (Ref. 21) “that her account, that must be taken at face value, has been consistent the whole way.” The legal process in the District Court was recorded, and the recording was played in the Court of Appeal. Because her account in the District Court and the Court of Appeal was exactly the same, this suggests that the account is true and that the six points above correctly describe the situation. The elder RB confirmed that Nygård consistently said that she was asleep while the oral sex was performed. (Ref. 19)

The important issue of whether she allowed the oral sex or whether she was raped was not considered by the judicial committee or the appeal committee

Regarding the judicial committee, the majority of the court says “that the level of precision [in the case against Nygård] was low.” (Ref. 17) The important point to consider for the judicial committee was whether Nygård had agreed to oral sex. But the judicial committee had not even considered this question, as Ref. 20 shows:

The member of the judicial committee, KS, who had spoken with Nygård before the judicial meeting, had understood that the issue was oral sex. But he explained that the judicial committee did not try to find out all the details. He said that the judicial committee had not considered whether Nygård had agreed to the oral sex or not.

In connection with this, the incompetence of the members of the committees becomes visible. The issue that was the primary one — whether Nygård had agreed to the oral sex or not — had neither been considered by the judicial committee nor by the appeal committee. On this background, one may ask what the reason for the disfellowshipping really was because Nygård would have had to agree that she committed porneia in order for her actions to result in her being disfellowshipped, but she did not agree to this. The majority of the court writes (Ref. 21):

That the issue of agreement or not on the part of Nygård was not discussed in the judicial committee, while the opinion of the member of the judicial committee, TGU, is that Nygård was sleeping when the sexual relation occurred, indicates that the decision of disfellowshipping was not connected with the question of whether rape had occurred or not.

Broadly speaking, the majority of the court understands that both the judicial committee and the appeal committee have an indifferent view as to whether Nygård objectively had been raped. The exception is the member of the appeal committee, TG, who seems to have the opinion that the sexual relations occurred while Nygård was sleeping.

The judicial committee and the appeal committee have set aside Nygård’s security under the law

The incompetence of the members of the judicial committee and the appeal committee is also seen by the fact that the fundamental procedures for the handling of judicial cases were not followed in the case against Nygård (Ref. 20):

The majority of the court remarks that the handling of the case by the congregation is attacked because fundamental criteria for the security under the law are broken. In the closing arguments, it was pointed out that it is unclear on the basis of which reasons the committees have acted. The facts that the majority of the court have built on are not different from Nygård’s description of the situation. The majority of the court concludes that the preponderance of evidence shows that the question about oral sex — or other forms of sexual relations — have been treated in a superficial way or not treated at all at the meetings of the judicial committee or the appeal committee. The result of this is that the views of the elders in these committees regarding what Nygård is guilty of are different…

That this has not happened [that the case has received correct handling] is supported by the explanation of KS that the judicial committee would not go into details. The result of this, according to the view of the majority, is that the members of the committees have used selective samples of facts and/or imagined “facts” as the basis for the decision of disfellowshipping. There are also other differences in the accounts of the members of the judicial committee and the appeal committee, indicating the members have shown little interest in getting an understanding of details that could be important for the issue of disfellowshipping.

The quotations above show that the handling of the case of both the judicial committee and the appeal committee has been superficial and that fundamental principles of the security under the law have been set aside.

The judicial committee and the appeal committee have not been able to point out exactly what the sin of Nygård is

The conclusion of the court that the handling of the case has been superficial is supported by the notes that both the judicial committee and the appeal committee have made (Ref. 21):

For Nygård’s security under the law it is important that she at no time has received a clear explanation of why she has been disfellowshipped. Even though it must be accepted that porneia (sexual immorality), which is a faith issue, can be the basis for disfellowshipping, it must be expected that it must be clearly explained exactly what is the action that constitutes the sexual immorality. Nygård has been orally informed that she would be disfellowshipped, and she has understood that the reason is that she has been guilty of “porneia”.

The decision of the appeal committee has also been given to her orally without any explanation. This means that Nygård has not been explained which action she has done that is “porneia.” It is not clear, as it is described above,  what the opinions of the majority of the elders of Jehovah’s Witnesses are as to what she is guilty of — and possibly, this has neither been considered. In any case, there is no written documentation that can be used to control what the reason for the disfellowshipping is. The transcript of the meeting in the judicial committee of March 29, 2018, that was not meant for Nygård but for the appeal committee, does not say anything what qualifies to the concept “porneia” in this case. And that is neither the case of the report of the appeal committee of April 4, 2018, that is even shorter.

Because of this, Nygård has no way of knowing  which grounds she could point to in order to bring the case to the appeal committee or what action she should regret in order to be reinstated in the congregation.

The members of the judicial committee and the appeal committee have given explanations that contradict each other

That both judicial and theocratic rules for the handling of the case have been broken is also seen by the fact that the views of the members of the two committees regarding what constitutes “evidence” in connection with Nygård’s case are different (Ref. 20):

The presentation of evidence in the District Court and the Court of Appeal has revealed different accounts of the members of the judicial committee and the appeal committee regarding what Nygård has admitted and regarding the concrete action that she has done.

Below follows the description of the court regarding the different accounts (Ref. 18, 19):

KS, one of the members of the judicial committee, who is one of the two who first heard the account from Nygård regarding what had happened, said that Nygård explained that she and the man she met consumed alcohol when they came to his room. According to KS, there were some intimacy, some kissing, and some caressing before “they ended up in the bed.” Nygård fell asleep, and she woke up without clothes. According to KS, Nygård stated that she and the man had breakfast together before they went home as friends. Nygård denies that she has said any of this. But she confirms that she denied that she had been/viewed that she had been raped when she was asked about that. KS said that according to Nygård, she was not quite intoxicated.

TG and RA, two of the members of the three-member appeal committee, said that Nygård mentioned that she had consumed some drinks before she went to the room of the man, where they consumed more alcohol. TG said that his understanding was that they had a good time together and that they continued the party in the room. TG remembered that Nygård said that she lay down and that she woke up when the man performed oral sex on her. The description of RA is that Nygård and the man became intimate in the room, that they kissed and went to bed. But during this, Nygård fell asleep. His view was that she was not conscious of what happened after this and that she remembered little of what happened before she woke up. Both confirmed that they emphatically had asked whether she (experienced in a way) that she was raped, something she denied. The majority will return to these explanations. Both the judicial committee and the appeal committee concluded that Nygård had committed sexual immorality (porneia).

The second member of the judicial committee, TGU, has said that Nygård and the man embraced each other and kissed each other in his room and that they consumed more alcohol. They lay on the bed, while Nygård was tired and wanted a “power nap.” His opinion was that Nygård woke up when the man lay on top of her. They had breakfast together and went away as friends. Two times they asked her if she had been raped, and she denied that.

The accounts of the members of the judicial committee and the appeal committee are so different that we understand that a great part of what these elders have said in the District Court and the Court of Appeal is not true. Can we conclude that some of them are lying? Such a conclusion is not necessary.

What is the reason for the different accounts?

The article “Myth: Eyewitness Testimony is the Best Kind of Evidence,” may throw some light on the situation.

But being convincing isn’t the same as being accurate. Eyewitness testimony is more fallible than many people assume. The advent of DNA analysis in the late 1980s revolutionized forensic science, providing an unprecedented level of accuracy about the identity of actual perpetrators versus innocent people falsely accused of a crime. DNA testing led to the review of many settled cases. According to the Innocence Project , 358 people who had been convicted and sentenced to death since 1989 have been exonerated through DNA evidence. Of these, 71% had been convicted through eyewitness misidentification and had served an average of 14 years in prison before exoneration. Of those false identifications, 41% involved cross-racial misidentifications (221 of the 358 people were African American). And 28% of the cases involved a false confession.

The claim that eyewitness testimony is reliable and accurate is testable, and the research is clear that eyewitness identification is vulnerable to distortion without the witness’s awareness. More specifically, the assumption that memory provides an accurate recording of experience, much like a video camera, is incorrect. Memory evolved to give us a personal sense of identity and to guide our actions. We are biased to notice and exaggerate some experiences and to minimize or overlook others. Memory is malleable.[1]

The motive of eyewitnesses standing before a judicial committee is, to tell the truth, and the same is the case when the members of a judicial committee and an appeal committee must be witnesses in a court case. But as the quotation above shows, there are many factors that can influence the memory of the witnesses, to the point that their account is not correct. Based on my own experience, I will say that cases that are based on what has been said and what has not been said are very problematic.

In addition to the fact that eyewitnesses may perceive a situation differently and remember different things, it is clear that three other factors play a great role in the case against Nygård. The first factor is the superficial way the case has been handled, and the second factor is that it is easy to draw conclusions that have no basis, and the third factor is the nature of the information given to the members of the appeal committee by the members of the judicial committee.

Regarding the superficial handling of the case, we read (Ref. 20, 21):

What kind of sexual relations that were performed, whether Nygård most of the time or the whole time slept during the sexual relation, and whether she agreed with it, seems not to have been discussed during the meeting of the judicial committee, or were things that the members of the committee refused to consider.

Because of the few cases of disfellowshipping in the congregation — and the relatively few members of the congregation — the majority assumes that TGU would have remembered if the points mentioned above had been discussed in an adequate way at the meeting. That this has not been the case is supported by the account of KS that the judicial committee would not go into details.

In this case, where clear evidence is not presented and clear conclusions have not been drawn, it is natural that some members of both committees will stress some things that they remember, or think that they remember, and others will stress other things that they think they remember.

The member of the judicial committee, TGU, is a good example of how conclusions can be drawn without any basis. His opinion was that the sin of Nygård was sexual intercourse (Ref. 20):

The member of the judicial committee, TGU, explained to the court that the concrete sin, in this case, was sexual intercourse. When he was questioned about why he believed that sexual intercourse had occurred, he answered that Nygård had not said that they had sexual intercourse, but that she had explained that she was partly or wholly without clothes and the things that she described as immorality or “porneia” had occurred,  He could not remember that she was sleeping during the sexual relations or that oral sex had been mentioned.

It is natural that the members of the appeal committee are introduced to the case by the members of the judicial committee. But the question is how much of the information based on the questionable recollections and viewpoints of the judicial committee sways the appeal committee in a certain direction that may prevent it from making an evaluation of its own. Another question is whether or not all the information they receive is correct. Several of the expressions of the accounts are vague; for example, TG’s statement that “the party continued in the room.” Such expressions exemplify that the information the appeal committee receives from the judicial committee is not always clear. And when the judicial committee inadvertently adds something to this information, the members of the appeal committee might misinterpret the information being passed along to them.

Which information can we believe? 

The majority of the court points out that because there have been only a few cases of disfellowshipping in the congregation, it is natural that TGU would have remembered salient points of the case that indicate whether or not it had been handled in a correct and adequate way, even though two years have passed since the case. This illustrates that just as there are several factors that may cause a person not to remember things in detail or confuse things, there are also several factors that can cause a person to remember things clearly. One of these is infrequent or unique events, and another is the time.

We have seen that Nygård, two days after the dinner at Hotel Plaza, sent a message to KS and asked for a meeting with him in order to discuss a situation that had happened while she was sleeping. Persons may, of course, rationalize reality away in order to avoid facing a difficult situation. But there is nothing that Nygård says or does that question her veracity. She met with the judicial committee a short time after the situation, and we must assume that she would clearly remember what happened before and after she was sleeping and that she told the truth to the judicial committee. Ref. 19 says:

Nygård has explained the whole time, in the message to KS, in the meeting with another elder before the meeting in the judicial committee, in the meetings with the judicial committee and the appeal committee, and for the District Court, that she was sleeping while the sexual action occurred. She has also explained the same to the Court of Appeals. The elder in Ski congregation, RB, has confirmed that Nygård all the time has said that she slept during the sexual action.

So, we have every reason to believe that Nygård slept while the sexual action occurred. She has at all times been consistent in her accounts. In contrast with her consistent testimony, stands the contradictory accounts of the members of the judicial committee and the appeal committee. The majority of the court believes what Nygård has been saying, but the minority of the court believes what the members of the committees say, and the differences between their account are not viewed as important.

[1]. https://www.psychologicalscience.org/teaching/myth-eyewitness-testimony-is-the-best-kind-of-evidence.html.

THE MOTIVES OF NYGÅRD ARE QUESTIONED

In a court case, both parties will use arguments in favor of their own cause. Jehovah’s Witnesses are taught at their meetings to have a positive view of all human beings regardless of their faith and to treat all in a way that respects their dignity. Judicial committees are also admonished to respect the dignity of all humans, including those who have been disfellowshipped.

On this background, I have a strong negative reaction to Jehovah’s Witnesses questioning the motives of Nygård because this is the very opposite of respecting her dignity. The majority of the court writes (Ref. 14):

For Nygård, the disfellowshipping means much for her welfare. Nygård has been a Witness since 1987. She has her mother and her two grown-up sons in the congregation, and she has a number of friends and acquaintances among the Witnesses. Even though the rules of the denomination possibly do not restrict the contact with the family, this is what really happens, as several witnesses have confirmed in court. Contacts with friends and acquaintances among Jehovah’s Witnesses are not possible, according to the rules of the denomination.

Jehovah’s Witnesses have, during the discussions of the appeal, tried to prove that Nygård, before she was disfellowshipped, had little or no contact with her family — probably in order to legitimatize that the disfellowshipping would not have such a strong effect on her. The majority does not view it as necessary to consider the actual family relationships before the disfellowshipping. The central point is that now — after the disfellowshipping — Nygård in any case, cannot have any relationship with her family and others of her friends in the congregation. Nygård is on disability aid, and she is chronically ill with the sickness ME. In conversations with representatives of social security, she has said that she has considered committing suicide several times. It is clear that the influence of the disfellowshipping on her is important for the consideration regarding which issues the courts can consider, cf. Rt-2004-1613 point 34, cf. also HR-2021-639-A.

I assume that it is the attorney for JW that has formed the unfortunate words. But he himself is one of Jehovah’s Witnesses and an elder. So both he and the leaders of JW are responsible for the arguments that are used in the court. The attempt to show that the disfellowshipping does not greatly influence Nygård in connection with her family is very bad. It is, in reality, an ad hominem argument attacking the person instead of arguing their case. The quotation shows that the majority of the court does not give any weight to this attack.

In the document from the Ski congregation, there is also something that questions the motives of Nygård (Ref. 8):

The argument of Nygård that she has been disfellowshipped because of rape, is an attempt to avoid dismissal of the case before the court. The purpose is to make a case that the court can consider. In connection with this, it must be pointed out that there is agreement that Jehovah’s Witnesses do not disfellowship members because of rape, and the evidence shows that the committees have not disfellowshipped Nygård because of rape. The congregation has disfellowshipped Nygård because of a religious sin, that is related to the biblical concept “porneia.” This is a religious evaluation of the facts that were known by the elders at the time the decision was made.

This quotation says, in reality, that Nygård says something that is not true. And that her motive was that the court would hear her case. This accusation is repeated and expanded by advocate Stub-Christiansen in his Respondent’s notice to the Borgarting Court of Appeal, dated April 28, 2020, page 19:

That Nygård has brought her case before the courts is close to the misusing [of the courts] because Nygård, in spite of knowing better, claims that Jehovah’s witnesses have disfellowshipped her because of rape. Nygård has known the facts of the case, and she can be blamed because she wrongfully has brought the case before the courts. It can be added that there is no strong reason making it reasonable to remove her liability for damages. On the contrary, there are strong reasons not to remove her liability for damages in this case because this would motivate her to continue to make false accusations against Jehovah’s Witnesses. It is not “reasonable” to relieve her from paying the legal costs.

This accusation against her is so serious that Danielsen, her lawyer, in his Statement of case to the Borgarting Court of Appeal, dated May 14, 2020, page 5, writes:

The Respondent’s words that Nygård “is close to the misusing [of the courts]” because Nygård consciously claims that the congregation disfellowshipped her because of rape, implies, in reality, an accusation that Nygård has lied to the District Court, where she told about the abuse. The accusation against Nygård is, in that case, an accusation about a punishable action, and the congregation is imposed a stronger onus of proof to establish the claim. The challenge is to know if the accusation against Nygård is upheld.

Does Nygård say that she was disfellowshipped because of rape? Let us look into the case. Nygård contacted the elders on her own initiative, and she told the judicial committee that a man had performed oral sex on her while she was sleeping. Having sexual relations with a person who is sleeping is, according to the Criminal Law, rape.

The committees have disfellowshipped her because of sexual immorality, without telling her which action she did that was sexual immorality. By disfellowshipping her because of sexual immorality, the members of the committees accept that sexual immorality occurred at Hotel Plaza. But because there are not two witnesses or her confession showing that she was an accomplice of the sexual immorality, and she claims that the oral sex occurred while she was sleeping, objectively speaking, she was disfellowshipped because the man performed oral sex on her while she was sleeping. The action of the man is, according to the Criminal Law, rape, and this means that she was disfellowshipped because she was raped, even though the committees deny this.

THE LEGAL CONSIDERATIONS OF THE MAJORITY OF THE COURT OF APPEAL

The ruling of the two judges, who were the majority of the court, was that the disfellowshipping of Nygård was invalid, while one judge, who was the minority, wanted to dismiss the case because most of the considerations were religious and therefore were outside the jurisdiction of the court..

The basis for hearing the case and not dismissing it is discussed in the section “The right of a judicial review of the court.” In this section, I will discuss the primary reasons why the court should consider the actions of the judicial committee and the appeal committee from the viewpoint of the majority of the court.

The reason why the court should consider the actions of the judicial committee and the appeal committee

The Dissenterloven of 1891 was the first Norwegian law dealing with religious denominations. In 1957 the Dissenterlovkomiteen was formed. The purpose of this committee was that the members should suggest how the old law could be improved. In the document made by the committee, we read on page 46:

Membership will also be terminated by disfellowshipping, by being passive or by becoming a member of another denomination. The organizations must be free to make the rules that they want, inside the borders of common laws and decency. A disfellowshipping must be accepted by the authorities.

If the opinion of a person is that he is unjustly disfellowshipped, he may get his case considered by the courts on the basis of normal principles whether the disfellowshipping is rightly based on the laws of the denomination. He may also be able to set aside rules that are directly unacceptable for the common view of the laws. But we must assume that the courts will be very restrictive not to accept the laws of a denomination, even though these laws may be quite undemocratic.

The document of the Dissenterlovkomiteen cannot be viewed as a law but as a suggestion by experienced lawyers of what a new law about religious denominations should contain. The denominations have the right to make their own rules, as long as they do not exceed “the borders of common laws and decency,” and they must not be “directly unacceptable for the common view of the laws.” If the opinion of a person is that he is unjustly disfellowshipped, he may have his case heard by the courts.

The Norwegian Supreme Court has not considered the issue about the disfellowshipping from a religious denomination. But it has considered the issue of the refusal to become a part of a religious denomination. The principles in the ruling of the Supreme Court can also be applied in cases of disfellowshipping. In Rt-2004-1613, the Supreme Court writes:

31. A condition for getting a decision considered by a court must be that the lawsuit does not require a consideration of religious issues on the part of the court. This must follow from the freedom of religion that is settled firmly by the Norwegian Constitution § 2, letter a, and the European Convention of Human Rights, article 9, nr. 1.3.

33. The autonomy of religious denominations cannot go so far that refusal of membership and exclusion from the community of faith cannot, in any case, be considered by the courts, independent of what is asserted by the plaintiff regarding the material claim that is brought forth.

34 Even though the element of faith is central in a religious denomination, refusal of membership or other strong sanctions could be based on circumstances that are not related to issues of faith. Such decisions may have been made without following the procedures or by-laws of the denomination. The decisions may also have been built on a clearly wrong basis, and the fundamental rules of the security under the law have been overridden, cf. in this case The Law of Religious Denominations § 10, that restricts the possibility of using pressure to cause persons to enter or leave the denomination.

The essence of the document of the Dissenterkomiteen is:

  • If the opinion of a person is that he is unjustly disfellowshipped, he may get his case considered by the courts.
  • The rules of a religious denomination can be challenged if
  1. They exceed the borders of common laws and decency.
  2. They are directly unacceptable for the common view of the laws.

The essence of the ruling of the High Court is:

  • Refusal of membership or disfellowshipping from a religious denomination can in some cases be considered by the courts.
  • Such issues can be considered by the courts if:
  1. The denomination has not followed its own procedures or by-laws for the handling of cases.
  2. The decisions are built on a clearly false basis.
  3. The security under the law is set aside and violated.
  • The case must be very important for the welfare of the one who initiates the case if the courts are to consider it.

In their comments on the decision of the Supreme Court, the majority of the Court of Appeal writes (Ref. 13, 14):

The majority takes paragraph 34 in Rt-2004-1613 to mean that even though a disfellowshipping from a material point of view is decided on the basis of criteria and considerations that are related to issues of faith, the courts can consider it if the disfellowshipping does not accord with the procedural rules and the by-laws that the religious denomination itself has made, or whether there is an overriding of the security under the law, or whether clearly wrong data are the reason for the decision. It is not acceptable that any side of a decision that is based on faith issues can be excluded from consideration by a court. That would open the way for abuses under the pretext that this is the exercise of the faith.

I will now consider how the majority of the Court of Appeal has applied the principles that I have mentioned above.

Has there been an overriding of the security under the law?

The majority gives the following summary of the overriding of the security under the law (Ref. 18):

Deciding for the majority are several sides of the process of disfellowshipping that do not directly have to do with issues of faith. Among other things, the majority does not have a basis for deciding whether clearly wrong data are the reason for the decision, cf. Rt-2004-1613. The reason is, as the majority will return to below, that it is not known which data has been the basis for Jehovah’s Witnesses. The presentation of the evidence has further revealed that central issues seem to have been overlooked or have not been decided, illogical and unacceptable reasonings occur, means to test what is the basis for the committees’ decisions are lacking, and Nygård has not been informed about the reason why she has been disfellowshipped. All this taken together shows that the fundamental security under the law is set aside in the process of disfellowshipping, as the majority sees it. This will be elucidated below.

The quotation above has the following points:

  • The majority does not have a basis for deciding whether clearly wrong data are the reason for the decision because JW have not shown what is the basis for the disfellowshipping
  • Central issues seem to have been overlooked or have not been decided.
  • The committees have not given the reason for the disfellowshipping.
  • Nygård has not been told what is the reason for the disfellowshipping.
  • The fundamental security under the law has been set aside in the process of disfellowshipping.

Regarding point 2, the majority of the court says (Ref. 19):

Both the judicial committee and the appeal committee have concluded that Nygård was disfellowshipped because of sexual immorality (porneia).

This label of “sexual immorality” by the two committees does not contradict point 2 because “sexual immorality” is a general term that does not include any concrete actions. By using this term the committees have not shown which wrong action Nygård is guilty of according to their view.

The majority of the court mentions that the fundamental security under the law is violated (Ref. 20):

The majority of the court remarks that the handling of the case by the congregation is attacked because fundamental criteria for the security under the law are violated. In the closing arguments, it was pointed out that it is unclear on the basis of which reasons the committees have acted. The facts that the majority of the court have built on do not differ significantly from Nygård’s description of the situation.

The nature of the sexual sin is treated in a superficial way or not decided at all (Ref. 20):

The majority of the court concludes that the preponderance of the evidence shows that the question about oral sex — or other forms of sexual relations — has been treated in a superficial way or not treated at all at the meetings of the judicial committee or the appeal committee. The result of this is that the views of the elders in these committees regarding what Nygård is guilty of are different…

The view of the majority after the presentation of evidence is that what has been the consensus of the members of the judicial committee and the appeal committee is that Nygård in a message to KS asked if she had been guilty of “porneia,” and that she before the judicial committee denied that she meant that she had been raped or had experienced sexual abuse…

What kind of sexual relations that was performed, whether Nygård most of the time or the whole time slept during the sexual relation, and whether she agreed with it, seems not to have been discussed during the meeting in the judicial committee, or something that the members of the committee refused to consider.

Whether she agreed to the mentioned oral sex or she was raped have not been considered by the committees (Ref. 21):

That the issue of agreement or not on the part of Nygård was not discussed in the judicial committee, while the opinion of the member of the appeal committee, TG, is that Nygård was sleeping when the sexual relation occurred, indicates that the decision of disfellowshipping was not connected with the question of whether rape had occurred or not.

It is unacceptable for the common view of the laws if someone is disfellowshipped from a religious denomination when there is a possibility that the person has been raped. (Ref. 22):

The view of the majority is that it will be directly unacceptable for the common view of the laws if someone is disfellowshipped on the basis of something that possibly is rape or for any unwanted sexual abuse that is done while one is sleeping.

Because the reason for the disfellowshipping is not stated, Nygård’s security under the law is put aside (Ref. 21, 22):

For Nygård’s security under the law it is important that she at no time has received a clear explanation of why she has been disfellowshipped. Even though it must be accepted that porneia (sexual immorality), which is a faith issue, can be the basis for disfellowshipping, it must be expected that it must be clearly explained exactly what action constituted the sexual immorality. Nygård has been orally informed that she would be disfellowshipped, and she has understood that the reason is that she has been guilty of “porneia”.

The decision of the appeal committee has also been given to her orally without any explanation. This means that Nygård has not been explained which action she has done that is “porneia.” It is not clear, as it is described above,  what the opinions of the majority of the elders of Jehovah’s Witnesses are regarding what she is guilty of — and possibly, neither has this been considered. In any case, there is no written documentation that can be used to substantiate what the reason for the disfellowshipping is. The transcript of the meeting in the judicial committee of March 29, 2018, which was not meant for Nygård but for the appeal committee, does not say anything about what qualifies for the concept “porneia” in this case. And neither does the report of the appeal committee of April 4, 2018 do so, which is even shorter.

Because of this, Nygård has not had any way of knowing  which grounds she could point to in order to bring the case to the appeal committee, or what action she should regret in order to be reinstated in the congregation.

The considerations of the committees are against general decency (Ref. 22, 23):

A procedure like this [not telling Nygård which sin she has committed] makes it also impossible for the court to consider whether clearly wrong data are the basis for the disfellowshipping. cf. Rt-2004-1613, point 34. The congregation cannot, by its lack of reasons or by its refusal to take a stance on what actually happened, prevent the examination of whether clearly wrong data are their basis. Parts of the arguments that are illuminated by explanations before the District Court and the Court of Appeal are, according to the view of the majority, against general decency, cf. the document above made by the Dissenterlovkomiteen of 1957.

Nygård has the onus of proof, and she has fulfilled this requirement (Ref. 23):

It is Nygård who has the onus of proof to show the disfellowshipping of her is invalid. The view of the majority is that it would have been an advantage if Nygård had summoned the man she was together with on the particular evening as a witness for the court. The witness LS has in connection with that said that he knows that the man confessed everything he had done and expressed regret. RB said that the man was not disfellowshipped. What this means, including what he has explained regarding the role of Nygård, is unclear. But independent of this, Nygård must be viewed as having fulfilled her part in connection with the evidence that the decision is invalid because Jehovah’s Witnesses are the ones that must show how their decision can be tested.

When Nygård does not know which sin she is supposed to have committed, she cannot regret this sin, something that is necessary to be reinstated. Thus, her security under the law is violated (Ref. 23):

The majority remarks that Nygård’s two following applications for reinstatement into the congregation were denied. The elders have said that the disfellowshipping is an act of love in order to help Nygård back to the right way as far as questions of faith are concerned. However, the requirement for reinstatement is that the disfellowshipped member must show sincere regret. Nygård has said that she cannot feel regret for something she has not done. Nevertheless, in her appeal of March 25, 2018, to the appeal committee, she expresses that she regrets having put herself in the situation on that particular evening. If the requirement is that Nygård must express regret for having performed “porneia,” that may be a reason to force her to admit that she has performed “porneia.” The opinion of the majority is that this also affects her security under the law that is not acceptable, even though this comes close to an issue of faith that the courts cannot consider.

Nygård’s fundamental security under the law has been set aside (Ref. 23):

The majority finds that Nygård’s fundamental security under the law has been set aside in a  case that is very important for her welfare. The majority cannot see that what has been stressed above is an attack on the freedom of religion.

The majority finds that the decision about disfellowshipping is invalid (Ref. 25):

The opinion of the majority is that human rights do not restrict the Court of Appeals from concluding that the disfellowshipping is invalid on the basis of what has been shown above. The errors that have been presented are of the nature that they may have influenced the contents of the decision. Because of this, the majority finds that the disfellowshipping of Nygård is invalid.

The basic reason why the majority has found that the disfellowshipping is invalid is that Nygård’s security under the law has been violated:

1)     The most important issue, whether or not Nygård slept while the man performed oral sex on her, has not been considered. This means that the committees have not drawn any conclusion on whether Nygård was raped or not.

2)    It is unacceptable for the general view of law if someone is disfellowshipped when the possibility is that the person has been raped.

3)    Nygård has not been told which actions on her part constitute the sexual sin for which she has been disfellowshipped.

4)   In order to be reinstated, Nygård must express regret. Because Nygård does not know of which sexual sin she is supposed to be guilty of, and because she denies that she has committed any sexual sin, the requirement to regret will force her to admit to something she does not agree with—that she is guilty of a sexual sin.

5. Because she cannot regret something she has not done, she can never be reinstated into the congregation. This means that she never can have any contact with her mother and two sons who are Witnesses or have any contact with all her friends that are Witnesses. This is a violation of Article 8 in the European Convention of Human rights — the right to respect her private and family life.

DAMAGES FOR DEFAMATION

I do not see any reason to present the discussions of the majority regarding damages for defamation in detail. I will only quote the conclusion of the majority (Ref. 26):

The primary rule is that false defamations are not protected by the regulation of free speech in EMK article 10. There must be special reasons to deviate from this primary rule. Cf. Rt-2003-928 paragraphs  41 and 57, cf. Rt-2005-1677, paragraph 74. The majority cannot see that there are such reasons in this case. The disfellowshipping was improper, and the considerations of interest on the basis of § 3-6 a, second point, cannot imply that the disfellowshipping was right. Neither does it rest on a clear factual basis, cf. the majority’s discussion above of the issue of whether it was valid or not.

The decision, how it was spread, and its factual implementation imply a serious insult. Nygård has not had — because she has insisted that she did not agree to any sexual relation, and she cannot regret something that she has not done — any possibility to “contradict” the insult inside the congregation in any other way than to go to the courts. General interests require that the state that is based on laws cannot accept such a behavior of a religious denomination when it has grave consequences for the person.

Because of this, there is a reason for damages because of defamation.

The damages are set to 100,000 kroner.

THE VIEWS OF THE MINORITY OF THE COURT

The minority consists of one judge, and I will present the basic viewpoints of this judge.

The case should not be considered by the Court of Appeal because it basically is built on religious considerations  

The first action of the judge is to consider the right of a judicial review of the court. He refers to many comments by legal experts. At the end of this discussion, he refers to a ruling that deals with the refusal to accept eight persons as members of an Islamic center of culture. Then he refers to several legal experts who opens for the possibility of considering the refusal of membership by the courts, and his conclusion is: (Ref. 32):

Besides this, and the ruling of the Court of Appeals to let the court consider the lawsuit in this case, cf. LB2020-11024, the minority has not found any decision by a Norwegian court that has made clear the borders of the courts to re-examine a decision of a religious denomination to disfellowship a member. There is one example, though, dealing with the application of membership. In the ruling of Oslo City Court of October 28, 1960, the lawsuit of two persons against the warden of the Greek-Orthodox Church St. Nicolai because they were not accepted as members was dismissed. The reason was that the court did not have the competence to consider such a question.

According to the teachings of Jehovah’s Witnesses, a member can be disfellowshipped for several reasons that many will find to be objectionable and/or against “the general view of the law”, cf. the reference of Dissenterlovkomiteen to the general view of the law. Examples are disfellowshipping because of homosexuality and voting at elections. The minority does not see it necessary to consider the extent of the judiciary of the courts in relation to the decision of a religious denomination of disfellowshipping because the lawsuit, according to the view of the minority, builds on religious considerations that the courts cannot consider. However, it is necessary to conclude that all the jurisprudence, including that of the EMD, that Jehovah’s Witnesses have referred to from the time after the decisions of the High Court in 2004, speaks against a consideration by a court of decisions of disfellowshipping, which, according to its nature must include more or less religious considerations

The opinion of the judge is that this case should not have been considered by the court because it is basically built on religious considerations. He also says that this standpoint is supported by all jurisprudence in this field.

However, the previous appeal of JW to the Court of Appeal to dismiss the case was rejected. This means that another Court of Appeal — different from the present court — ruled that the lawsuit should be considered by the present Court of Appeal.

 The “evidence” for sexual immorality is based on “a total consideration” of Nygård’s actions

The impression of the judge is that “the evidence” that Nygård is guilty of sexual immorality is the following (Ref. 38, 39):

The opinion of the minority is that the conclusion that a member has committed sexual immorality is based on a total consideration of a series of actions, cf. in this connection, the account of KS for the District Court that was played for the Court of Appeal and confirmed by LS…

The minority concludes in accord with the accounts of the four committee members that more alcohol was consumed in the hotel room and that there were kissing and other forms of embraces/and caressing. On the basis of a total consideration of the circumstances that led to Nygård having dinner with the man, the consuming of alcohol both at the dinner and afterward, her account to the committees about kissing, the use of hands, and caressing and what later happened, seen in relation to the teaching of Jehovah’s witnesses regarding sexual immorality, the judicial committee and later the appeal committee found it necessary to disfellowship Nygård.

The opinion of the minority is that whether it was necessary to disfellowship Nygård is a religious question that the courts cannot consider. The decisions do not build on a (clearly) wrong basis. The differences between the memory of the four committee members regarding details about what happened while Nygård slept, about two years after the incident at the hotel room, is nothing that the minority will stress. Both the judicial committee and the appeal committee concluded that her own account showed that she confessed to sexual immorality. This is also a religious consideration that the courts cannot consider. It follows that the courts cannot re-examine whether it was right when the elders formed a judicial committee. The opinion of the minority is also that the conclusion of the appeal committee not to seek more (witness)-evidence in order to substantiate that the judicial committee had made the right decision cannot be re-examined.

The opinion of the judge is that “the evidence” that Nygård was guilty of sexual immorality is a “total consideration of a series of actions.” Because none of the committees has stated exactly what the sin of Nygård was, this is a natural conclusion. The judge says that the account of Nygård was taken as evidence for sexual immorality by the committees. However, the Book for Elders chapter 12, point 40 (1) says:

There must be two witnesses to a confession, and the confession must be clear and unambiguous.

In the courts, including the present court,  “a total consideration of a series of actions” is used as evidence. But from the viewpoint of Jehovah’s Witnesses, it is not possible to use “a total consideration of a series of actions” as proof of porneia. The requirements of the book for elders are two eyewitnesses to one act of sexual immorality (porenia), or a clear and unambiguous confession. There were no witnesses and no confession.

The opinion of the judge is also that there is no reason to believe that Nygård’s security under the law is violated (Ref. 39):

The opinion of the minority is that there are no violations of the fundamental security under the law in this case. From the point of view of the security under the law, it may, of course, be argued that the decisions and the accounts all should have been written down. A clear decision could have given Nygård a better understanding of what she had done wrong in relation to the religious norms that were used. This could, in an easier way, have helped her to express the regret that was necessary to get the pardon in order to be reinstated into the congregation after one had been disfellowshipped. On the other hand, as the minority sees it, there is no good reason why Nygård already from the beginning, if she did not know that she had acted contrary to the teaching of Jehovah’s Witnesses, spoke to the man at the hotel room and agreed to approach the congregation together.

The opinion of the judge is that Nygård does not deserve damages for defamation  because it cannot be said that her disfellowshipping was wrong (Ref. 40):

Nygård’s demand for damages for defamation is based on the view that the disfellowshipping of her was “incorrect”; she has without reason been accused of sexual immorality (porneia). It is said that her self-esteem and her reputation have been damaged. In this situation, when the opinion of the minority precludes considering that Nygård has not committed sexual immorality related to the teaching of Jehovah’s Witnesses, there can be no legal basis for allocating damages for defamation according to The law of Compensation for Damages (Skadeerstatningsloven) § 3-6 a.

The issue of whether or not the District Court should consider the case between Nygård and the Ski congregation of Jehovah’s Witnesses is a legal issue that does not relate to the book for elders. However, two of the main points in the opinion of the minority of the court contradict the book for elders, and it shows that the judge is not familiar with the procedures of Jehovah’s Witnesses in connection with disfellowshipping.

The judge believes that the actions of fondling and kissing and consuming alcohol that the committees ascribe to Nygård, but which she denies, had been added together by the committees — they are taken as a whole — and that this shows that she is guilty of sexual immorality according to the procedures of JW. This is wrong because:

  • None of the actions ascribed to Nygård is defined as sexual immorality by the book for Elders.
  • Making a total evaluation of a series of events to demonstrate sexual immorality contradicts the requirements in the book for elders of two eyewitnesses or a clear and unambiguous confession.
  • There is no confession by Nygård, as the judge claims, and this is required by the book for elders if the evidence is lacking.
The judge, who is the minority of the court, has made the following conclusions:

1)     The lawsuit cannot be considered by the Court of Appeal because it builds on religious considerations that the court cannot re-examine.

2)    Both committees have made correct conclusions on the basis of the teaching of Jehovah’s Witnesses to disfellowship Nygård because the basis for the disfellowshipping is “a total consideration” of the actions of Nygård.

3)     Nygård should not have compensation for damages because it is not demonstrated that her disfellowshipping was wrong.

Rolf Furuli

Author Rolf Furuli

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