Supreme Court upholds rape conviction, rejects religious privilege argument

Last modified: 8/27/2013 5:43:35 PM
The state Supreme Court yesterday unanimously upheld the convictions against Ernest Willis, who was found guilty in 2011 of raping his teenage baby-sitter more than a decade earlier when both were members of Concord’s Trinity Baptist Church.

In doing so, the justices rejected the notion that religious privilege should have protected the church’s former pastor from testifying that Willis admitted to having intercourse with 15-year-old Tina Anderson in 1997. Placing weight on a New Hampshire law that stipulates clergy must report child abuse, the justices said Willis couldn’t have expected his conversations would remain confidential.

Willis, who was 39 when he raped Anderson and is now 55, will continue serving the 15- to 30-year sentence handed down after his trial in Merrimack County Superior Court.

The Monitor typically does not identify victims of sexual abuse, but Anderson went public with her story and has agreed to be named. She said that after she became pregnant she was forced to stand before the congregation at Trinity Baptist and ask for forgiveness. Former Trinity pastor Chuck Phelps then helped arrange for Anderson to move to Colorado, where she had her baby and put it up for adoption.

The Concord police investigation into Willis’s conduct was closed when the department lost touch with Anderson. The case was reopened in 2010, leading to a trial the following year where Willis was convicted of multiple rape counts. After that trial, Willis’s attorneys appealed his convictions on several grounds, including the admission of testimony from Phelps.

At the trial, Phelps said he approached Willis after learning of Anderson’s pregnancy in order to see whether church rules had been broken. He said Willis admitted to having sex with Anderson twice, testimony that contradicted Willis’s own claim that he only had intercourse with the girl once after a driving lesson.

Phelps also testified that during a second conversation, in which both men’s wives were present, Willis described himself as the “aggressor.” On the stand, Willis claimed the contact had been consensual.

In front of the Supreme Court in January, a lawyer from the state attorney general’s office argued that Merrimack County Superior Court Judge Larry Smukler, who presided over the trial, made the right call in deciding that the wives’ presence wiped out any expectation of religious privilege. Willis’s attorneys argued that Phelps’s wife played a role in the spiritual counseling being given by her husband. But Smukler found her to be an “extraneous” third party.

In the opinion written by Justice Carol Ann Conboy, the justices noted that New Hampshire’s religious privilege rule doesn’t explicitly protect people working as assistants to clergy in the same way the evidence rules protect individuals working alongside attorneys, physicians, psychologists or certified pastoral counselors.

Citing a similar case, Conboy wrote that if the body that drafted the state’s evidence rules “had intended the coverage of the religious privilege to be as broad as that of the physician-patient and the attorney-client privileges, it could have provided for the presence of third party ‘assistants’ within the express language” of the rule.

Ultimately, the court didn’t decide whether Willis’s first conversation with Phelps occurred within the pastor’s role as a “spiritual adviser” – making it protected – or whether the privilege was broken because Phelps initiated the conversation to investigate a possible lapse of church law. The justices said New Hampshire is one of only six states that stipulates clergy must report child abuse and found that law superseded the other argument.

Willis’s attorneys also asked the high court to consider whether other evidence should have been kept out of the trial, including a 2010 recorded interview between Willis and a Concord police officer. In the interview, the officer questioned why Anderson would lie and also mentioned a 1997 report by the state’s Division for Children, Youth and Families in which an anonymous source described Willis’s contact with Anderson as forcible.

Willis’s attorneys argued that the report contained hearsay. And they said the officer’s questions about why Anderson would lie could lead the jury to believe that she wasn’t. The justices, though, found that the officer was utilizing a common interrogation technique by questioning Anderson’s motive rather than giving his own take on her credibility.

The court found the DCYF report to be more problematic.

That report was not admitted as evidence at trial. But because the officer referenced it during his interview and it appeared to be present during the interrogation, the detective’s statements could have bolstered Anderson’s credibility in the jurors’ eyes, the justices found.

“The statements therefore posed a substantial danger of unfair prejudice, and should not have been admitted,” Conboy wrote in the opinion.

However, the court found that Smukler’s instruction to the jury not to consider the officer’s statements as facts sufficiently outweighed the possible prejudice.

(Tricia L. Nadolny can be reached at 369-3306 or or on Twitter @TriciaNadolny.)


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