Timothy Probert

Alleged crimes...

Timothy Probert, then 55, of Bluefield, was taken into custody by Sgt. M.D. Clemons, with the Crimes Against Children Unit of the West Virginia State Police Thursday, December 12, 2013. The alleged crimes stem from incidents that occurred when Probert was a youth volunteer at Westminster Presbyterian Church in Bluefield.

BLUEFIELD — Did a pastor’s disclosure to police about reported sexual acts by a church elder on young boys violate the priest-penitent privilege, or was he simply following the state’s mandatory reporting law?

That is the question being argued in pre-trial motions filed in the Timothy Probert case.

Probert, 57, of Mercer County, is facing 50 charges related to alleged sexual abuse of children stemming from his time spent as a volunteer at Westminster Presbyterian Church in Bluefield and for the Working to Eliminate Child Abuse and Neglect (WE CAN) program.

In a pre-trial motion filed in the case, Probert’s counsel is seeking to have the charges dismissed on the basis that his pastor, Jonathan Rockness, violated the priest-penitent privilege when he told a West Virginia State Police investigator about disclosures involving Probert’s actions with young boys.

In the state’s objection to the motion, Assistant Prosecuting Attorney Kelli Harshbarger states Rockness and church elders were following mandatory reporting laws in order to protect children who were facing “a clear and present danger of being abused.”

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Probert was arrested in December 2013 on 38 counts of child sexual abuse related charges. His grand jury indictment in February 2015 included 12 new charges that stemmed from another victim coming forward and additional charges being added in other cases, according to Sgt. M.D. Clemons, with the Crimes Against Children Unit of the West Virginia State Police.

The charges include 27 counts of sexual abuse by a custodian, 17 counts of first-degree sexual abuse, three counts of third-degree sexual assault, one count of second-degree sexual assault, one count of first-degree sexual assault and one count of delivery of a Schedule IV controlled substance.

The controlled substance charge stems from Probert allegedly providing alcohol and controlled substances to one of the victims, Clemons said.

Clemons said three of the nine male victims were mentored by Probert when he volunteered with WE CAN and the other six he knew from his church and the community.

All of the victims were young teens when the abuse occurred, Clemons said. The alleged incidents date from 1986 to 2010.

During a preliminary hearing in February 2014, Clemons gave graphic testimony on the alleged acts, which included “mutual masturbation” between Probert and the victims, as well as oral and anal sex.

She testified that the youths would come to Probert’s house in Bluefield where he would give them alcohol and provide them with heterosexual pornographic movies. “They would watch them together ... and engage in mutual masturbation.”

Clemons said some victims were made to perform oral sex on Probert, and he would perform oral sex on them.

She also testified that Probert sexually assaulted some of the victims by performing anal sex on them. “One (victim) performed anal sex on Probert.”

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Clemon’s investigation began when she was contacted by Westminster Presbyterian’s pastor, Rockness, about an incident allegedly involving Probert and an 18-year-old male. At that point, there was not enough evidence to pursue criminal action so church leaders began their own investigation.

According to the state’s objection to the dismissal motion, Rockness met with elders of the church to discuss the situation. “The pastor and elders shared a concern that this was not an isolated incident,”  Harshbarger states in her rebuttal. “A particular concern was the defendant’s history of mentoring boys.”

According to court documents, Rockness was aware of an upcoming church mission trip that Probert was scheduled to lead. “The pastor was further advised by the director of the Wade Center that the defendant planned to work on a wall-building project at the Wade Center, and the defendant had specifically requested that he be provided with ‘middle school boys’ to help him with the project.”

Rockness convened a meeting of the church elders, who agreed to confront Probert, the court documents state. During the confrontation, Probert made “limited admissions.” The elders then formed two committees to investigate their concerns.

Between June and September of 2013, “the pastor individually and separately with the investigative committee met with the defendant to learn further details of any misconduct by the defendant involving children,” according to Harshbarger’s rebuttal. “The defendant admitted misconduct with several young boys. The defendant limited his admissions to only providing alcohol and permitting the use of pornography at his home.”

After Rockness met with a victim, he learned that masturbation that included participation by the defendant had also occurred, and committee members once again confronted Probert, court documents state. “The defendant then admitted that the masturbation occurred. He further admitted to fondling two middle-school boys as they slept. The defendant was then requested to not attend any more church functions, and the new information was provided to Sgt. Clemons.”

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In a motion to dismiss the case, Probert’s counsel argues that the disclosures by Rockness violate the state’s priest-penitent privilege. “State of West Virginia investigator, Melissa Clemons, conceded in her sworn testimony at the preliminary hearing that the state’s case was started by, aided by, and furthered by disclosures made by Jonathan Rockness ...”

The defense also states that mandatory reporting extends “only to the child who is the object of the suspected abuse.”

“The disclosure made by Tim Probert to his pastor did not relate to any ongoing sexual molestation of a child,” the defense motion states. “Tim Probert made confessions of personal misconduct with respect to teenage boys, in many cases, thirty years in the past. The subjects of the confessions made by Tim Probert are in their early forties and thirties now. Some are in their 20s. None of the disclosures or confessions made by Tim Probert to his pastor relate to a child or a child who is currently being abused at the time of Tim Probert’s confessions to his pastor.”

The defense argues that the confessions made by Probert to Rockness were communications in “confidential meetings and discussions.”

“Mr. Probert was seeking forgiveness and restoration through the disciplinary channels of his church for acts of misconduct that occurred in many cases decades earlier,” the defense motion states. “This circumstance simply does not fit the criteria established by the Legislature to justify overriding the penitent’s confession to his pastor.”

The state contends that clergy confidentiality did not exist in this case, and that Rockness was following a state mandated law to report child abuse.

“The pastor and elders knew that the defendant had current contact with underage boys,” Harshbarger states in her rebuttal. “For instance, they were aware that the defendant still currently sought out opportunities to have contact with children. In fact, they had to stop the defendant from going on a scheduled church mission trip. Even more disturbingly, they knew that the defendant had specifically requested that he be provided with ‘middle school boys’ to help him with the project at the Wade Center. The elders knew from their investigation that the defendant targeted middle school boys for sexual molestation. They knew that he was seeking current access to underage children. The defendant posed a clear and present danger of molesting children. The pastor properly reported the defendant to the authorities.”

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A special judge was called in to try Probert’s case earlier this year after all three Mercer County circuit court judges recused themselves from the case.

Retired Fayette County Judge Charles Vickers was appointed to the case after judges Omar Aboulhosn, Derek Swope and William “Bill” Saddler cited conflicts of interest.

A hearing on the defense motion to dismiss slated for October has now been rescheduled to December.

Probert is currently on home confinement. He was placed on house arrest after a March 2014 hearing in which a man testified Probert propositioned him for sex when he went to Probert's Bluefield home seeking to do yard work or other general labor.

— Contact Samantha Perry at sperry@bdtonline.com

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