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When clergy fail their flocks: cases of child sexual abuse by clergy are in the headlines as victims come forward seeking justice. Attorneys can help remedy this ultimate betrayal of trust.

A single mother who regularly attends church is pleased that Father Timothy, the personable assistant parish priest, has taken an interest in William, her 11-year-old son. She encourages William to accept the priest's invitations to go out for ice cream and movies and to rake leaves at the church rectory, believing that it will be beneficial for her son to have a positive male influence.

Months go by, and the frequency of contact between Father Timothy and William increases, with the mother's blessing. But changes in William's personality concern her. She confides in Father Timothy and asks that he talk to William to see if something is bothering him.

Years later, William's mother learns that he had been repeatedly sexually molested by the very priest she had trusted and whose friendship with her son she had encouraged. She is devastated when William tells her that other boys were also "favorites" of Father Timothy. She talks to the other boys' mothers and learns that two of them had complained to the bishop about the priest's inappropriate conduct before he began to take an interest in William.

The mother confronts the bishop and requests help for William. The bishop tells her that Father Timothy has received psychiatric help and that it would be best to put this matter behind them to avoid embarrassing her son and the church. Guilt-ridden and angry, she contacts you to get help for William, who has emotional problems, and to stop Father Timothy from hurting other children.

This scenario mirrors a multitude of cases involving clergy liability for the sexual abuse of children that have been filed throughout the country over the last 15 years. In these cases, the wrong to victims is obvious; certainly the law permits redress for these heinous acts. It is only after exhaustive research of the law dealing with clergy liability that you realize the road to recovery is impeded by numerous hurdles and dead ends.

The need to help people who have been sexually abused by those in positions of trust is great. Victims suffer serious and often permanent emotional injuries. The trauma and its aftermath affect and sometimes destroy the family unit. Although most litigation over clergy misconduct involves sexual molestation of children, some of the same issues arise in cases that deal with sexual relations between clergy and adults in the counseling context.

Before accepting a case, it is important to ascertain whether the victim has the physical and emotional stamina required to proceed with the claim. Civil actions involving the clergy and their supervisors or employers can require extensive litigation that may include multiple appeals on a variety of issues.

The very nature of the tort typically causes the victim a great deal of embarrassment and humiliation. One who wishes to proceed with a cause of action must appreciate that he or she will be required to submit to at least one deposition as well as numerous interrogatories dealing with matters that are extremely personal and difficult to relive. Before filing suit, the potential litigant must understand what he or she will be required to do.

Once you determine that the injured party is prepared to see the process through, you must determine whether he or she is believable and whether there is sufficient evidence to support a cause of action. Clergy liability cases are treated differently in each jurisdiction, so research as to the applicable law in your state is essential.

Statutes of limitations

Start by determining whether the statute of limitations bars a potential client's claim. It is not unusual for victims of sexual abuse to contact legal counsel years after the assaults have ended. Guilt and embarrassment make many victims hesitant to come forward. Others repress their memories of the experience and only later recognize what occurred when an event or psychotherapy triggers a memory.

Check the statutory law where the cause of action arose. Some jurisdictions extend the statute of limitations where the case involves a tort against a child, with special consideration given to torts dealing with child abuse. (1)

Some states have tolled the statute of limitations in cases of repressed memory, if certain standards are met. (2) Supporting expert testimony can be used to establish that the sexual abuse caused a victim to repress his or her memories.

Some states have tolled the statute of limitations where there is evidence that the tortfeasor fraudulently concealed the abuse. (3) In Roman Catholic Diocese of Covington v. Secter, the Kentucky Court of Appeals did so, relying on a state law that imposed a legal duty on an employer to report child abuse to law enforcement authorities. (4) The diocese was found to have concealed its knowledge that an employee--a teacher and guidance counselor--had sexually abused children.

In Dunlea v. Dappen, the Hawaii Supreme Court found that some victims of sexual abuse may repress all memories of the misconduct for years. The court concluded that "the issue of when a plaintiff discovered, or reasonably should have discovered, that he or she was psychologically injured and that the injury was caused by [the tortfeasor] is a question of fact for the jury." (5)

Other courts have concluded that allowing a plaintiff to bring an action based solely on alleged repressed memories, with no means of independently verifying the repression, would effectively nullify the statute of limitations. These courts have not allowed repressed memories of childhood sexual abuse to toll the statute. (6)

Constitutional defenses

Defendants in these cases routinely raise constitutional issues in an effort to stop claims at the preliminary stage. Defense counsel have become particularly adept at arguing that proceeding with a case will intrude on the operation of the religious entity in violation of the First Amendment. In some jurisdictions, these constitutional defenses have been successful. (7)

The supreme courts of Wisconsin and Maine have each rejected a claim against an archdiocese and a bishop for the negligent hiring and retention of a priest who was a pedophile. (8) The courts ruled that permitting the cases to proceed would violate the First Amendment because courts would be required to interpret church canons, policies, and practices, an unconstitutional entanglement with the affairs of the church.

Fortunately, a number of courts have concluded that the First Amendment does not grant religious organizations absolute immunity from liability. They have rejected defense arguments that the resolution of a claim for negligent retention and supervision requires the court to inquire into the church's religious tenets or practices. (9) These courts have distinguished the First Amendment's absolute freedom to believe from its protection of the freedom to act. Actions prompted by religious beliefs receive little protection and are subject to regulation for the protection of society. (10)

Some courts have concluded that sexual abuse falls outside the scope of constitutionally protected conduct, even if the conduct was found to be prompted by religious belief. For example, in Barquin v. Roman Catholic Diocese of Burlington, Vermont, Inc., the court determined that if church officials hired an employee knowing that he or she had "perverted sexual proclivities," it could be held accountable, even though the hiring was part of administrating a religious facility. (11) In Bollard v. California Province of the Society of Jesus, the court recognized an entanglement between church and state in a case involving inappropriate sexual conduct by an employee but concluded that the entanglement was not significant enough to violate the Establishment Clause. (12)

If your jurisdiction bars suits against religious organizations, the court may not have subject-matter jurisdiction on constitutional grounds. Further investigation of your client's claim may prove helpful. In many priest-pedophilia cases, before any inappropriate behavior begins, a "grooming process" occurs, in which the perpetrator selects the target child and establishes a more intimate relationship. The abuser typically spends additional time with the child, perhaps taking him or her out to lunch, the movies, and the park. As the relationship grows--and as the parent and child become more trusting--the priest may take the child on trips, sometimes to other jurisdictions.

Traveling affords the pedophile additional opportunities to be alone with the child. These trips may give rise to a cause of action and allow the plaintiff to file suit in a more receptive jurisdiction.

A number of claims have arisen in states other than the one where the clergy member's church is located. For example, in Tercero v. Roman Catholic Diocese of Norwich, Connecticut, the New Mexico Court of Appeals accepted jurisdiction over a Connecticut diocese for sexual molestations that a priest allegedly committed in New Mexico. (13) The priest had been ordained and incardinated by the diocese of Norwich, Connecticut. The diocese later sent him to a treatment facility in New Mexico after receiving complaints of pedophilic acts that had been committed in Connecticut. While residing in New Mexico, the priest also sexually abused Tercero.

The appeals court found the diocese to be subject to New Mexico jurisdiction because it intentionally placed the priest in that state, maintained supervision and control over him, and had delegating authority over the treatment facility's priest. The court concluded that the diocese could have reasonably foreseen that it would be subject to New Mexico jurisdiction.

Careful pleadings

Given the constitutional defenses that you are likely to encounter, it is particularly important to carefully prepare a complaint that will withstand preliminary objections and a motion for judgment on the pleadings. The complaint must contain no reference to church doctrine or policy.

Courts appear uniform in rejecting claims for clergy malpractice, so such claims have little likelihood of success. (14)

Many courts have also rejected causes of action based on the doctrine of respondeat superior, where a church or diocese is alleged to be liable for its employee's intentional or criminal acts. This claim is usually unsuccessful because intentional sexual misconduct and intentional infliction of emotional distress are not within the scope of a clergy member's employment and are forbidden. (15)

The Oregon Supreme Court departed from most jurisdictions in permitting a cause of action for respondeat superior and negligent retention, supervision, and training to go forward in Fearing v. Bucher. (16) Acknowledging that the sexual assaults on the plaintiff were outside the scope of the priest's employment, the court nevertheless found that further analysis was necessary.

The court determined that a jury could infer that the priest "took the job solely to gratify his own deviant desires and that all the activities preceding the abuse were motivated solely to further his own interests, not those of the archdiocese." (17) On the other hand, as the plaintiff contended, a jury might find that the sexual assaults were the "culmination of a progressive series of actions that began with and continued to involve [the perpetrator's] performance of the ordinary and authorized duties of a priest." (18) The court concluded that a jury should determine whether, in cultivating a relationship with the plaintiff and his family, the priest, at least initially, was motivated by a desire to fulfill his duties and over time his motives became mixed.

Under such circumstances, the court held that the allegations satisfied the requirements for establishing that the priest's conduct was within the scope of employment, and it allowed the case against the archdiocese to proceed under the theory of respondeat superior.

In a case against a clergy member based on sexual misconduct, the perpetrator's actions are necessarily intentional. (19) If the victim is a minor, the actions are criminal. While some courts have recognized that there is no legal duty to protect another from the criminal acts of a third person, other courts have found that there are exceptions. (20)

For example, in C.J.C. v. Corp. of the Catholic Bishop of Yakima, the Washington Supreme Court consolidated three similar sexual molestation cases filed against separate church entities and their leaders. (21) In reviewing Funkhouser v. Wilson, (22) the court focused on the "special protective relationship" that existed between the church, its leaders, and the children who were sexually abused. The C.J.C. court determined that the church and its leaders owed a duty of reasonable care to act affirmatively to prevent foreseeable harm, including intentional acts, given their relationship with the victim and their alleged knowledge of their employee's propensity to engage in pedophilic conduct. (23)

Typically, this special relationship arises in situations where one party has been entrusted with the well-being of another. The complaint must allege that this entrustment imposes on the church a duty to protect vulnerable individuals from foreseeable harm.

To effectively plead this special relationship, the allegations must set forth the actions of the church that established the relationship between the molester and the child, as well as relationships among the church, its leaders, and the perpetrator. The employer has a duty to ensure that the tasks assigned to employees and the premises and resources entrusted to them do not create opportunities for the employees to endanger others. The religious organization's liability is based on the placement and management of its priests, ministers, or rabbis, and the plaintiff essentially asserts a claim for negligent supervision and retention.

The defendant's ability to foresee an injury to a potential victim is crucial to the court in determining whether to impose a duty. In C.J.C., the Washington Supreme Court determined that if the harm is foreseeable, the scope of the church's duty, given the special relationship, extends to its employees' actions off church premises and after hours. (24)

Other courts have generally recognized that liability exists because the employer has brought into contact with the victim a person who the employer knows or should know is likely to commit intentional misconduct. Employers have been found liable for criminal conduct by off-duty or former employees where the conduct was consistent with a propensity the employer knew or should have known of, and where the employee's job occasioned his or her association with the victim. (25)

A plaintiff can also base a cause of action for negligent hiring, retention, or supervision on common law and [section] 317 of the Restatement (Second) of Torts. The section provides that under certain circumstances, an employer has a duty to exercise reasonable care to control an employee while he or she is acting outside the scope of employment. The employer's duty includes preventing the employee from intentionally harming others and from creating an unreasonable risk of bodily harm to others.

In Hutchison v. Luddy, the Pennsylvania Supreme Court sustained such a cause of action in a claim against a bishop and diocese for negligent retention and supervision of a pedophilic priest who they knew had a history of abusing boys. (26)

Discovery

It is imperative to have a focused discovery plan. You will probably find that the defense will try to obstruct full discovery.

Initiate interrogatories and requests for production of documents to ascertain what records or other information was available to put the employing church or diocese on actual notice that the employee might engage in harmful conduct. Alternatively, you can request documents that will allow you to argue that the employer should have known of such conduct.

Some defendants contend that they are fully in compliance with discovery requests when they have excluded records they believe are protected under religious doctrine. In claims involving a Catholic priest or diocese, you should be familiar with certain sections of Roman canon law. For example, Canon 489 specifically provides:

[section] 1. In the diocesan curia there is also to be a secret archive, or at least in the ordinary archive there is to be a safe or cabinet, which is securely closed and bolted and which cannot be removed. In this archive documents which are to be kept under secrecy are to be most carefully guarded.

[section] 2. Each year documents of criminal cases concerning moral matters are to be destroyed whenever the guilty parties have died, or 10 years have elapsed since a condemnatory sentence concluded the affair. A short summary of the facts is to be kept, together with the text of the definitive judgment.

Canon 490 states:

[section] 1. Only the bishop is to have the key of the secret archive.

[section] 2. When the see is vacant, the secret archive or safe is not to be opened except in a case of real necessity, and then by the diocesan administrator personally.

[section] 3. Documents are not to be removed from the secret archive or safe.

It is likely that the bishop or archbishop will place in the secret archives any records dealing with priest pedophilia. Some courts have permitted the discovery of these documents, rejecting the argument that compelling production violates the church's right to free exercise of religion. These courts have held that the burden on the diocese's religious freedom furthers a compelling governmental interest by the least restrictive means available. (27)

The defense will probably argue that communications between the offending priest and his bishop or other supervising clergy are protected under the clergy-communicant privilege and are not subject to discovery. Nearly every U.S. jurisdiction has recognized this privilege, which requires the communication to have been motivated by penitential or spiritual considerations. (28) No jurisdiction has extended the privilege to other communications. It does not protect information acquired by a religious institution through independent investigations not involving penitential or spiritual communications. (29)

When reviewing documents obtained in discovery, especially written communications between clergy members and their supervisors, you probably will not find explicit descriptions of the tortious conduct. For example, the words "sodomized," "sexually molested," and "pedophilia" will not appear. Instead, you will probably see "certain indiscretions," "familiarities," "complaints, the nature of which you are all too familiar with," "delicate matters," "youth involvement," "youth indiscretions," "youth associations," "certain facts and tendencies," and "deeper malaise." Do not let a lack of explicit incriminatory language deceive you.

In a recent series of articles dealing with priest pedophilia, the Boston Globe reported a change in archdiocesan policy: Boston priests must report allegations of sexual abuse to law enforcement authorities. The new policy does not apply to past incidents.

The New York Times recently reported a new Vatican edict made public in January: Dioceses must notify Rome of sexual abuse Cases. (30) The new rules permit the Vatican to hold church disciplinary hearings in Rome rather than in the local diocese, making more secrecy possible in these cases. You must ascertain through discovery whether the diocese has transferred pertinent documents to the Vatican or other venues.

Discovery may reveal that the church referred the abusive clergy member to a psychiatrist or psychiatric facility for "emotional problems." Treatment records may contain helpful information. Typically, psychiatric records are not discoverable because of the physician-patient privilege. If, however, the records have been disclosed to third parties, such as the bishop who ordered the priest to the facility, then, arguably, the privilege no longer applies. (31) The bishop may have placed these records in the diocese's secret archives.

Additional victims

It is not unusual for the defense to move to seal the litigation record to prevent the media from gaining access to pleadings and other documents. These efforts have succeeded in some jurisdictions. (32) You must decide whether it is in your client's interest to oppose sealing the record. If you decide it is, you may find allies in media organizations.

Public dissemination of the story may prompt other victims to step forward. A pedophile will not limit his or her conduct to one child. For example, at least 84 civil lawsuits have been filed in Cambridge, Massachusetts, against a now-defrocked priest who is accused of sexually abusing more than 130 children in various Boston-area parishes over 30 years. On January 18, 2002, he was found guilty of indecent assault and battery for an incident involving a 10-year-old boy at a public swimming pool over 10 years ago. (33)

Other child-abuse victims are potential witnesses. They may provide invaluable information about notice to the clergy member's employer or supervisors. Also, the mere fact of multiple victims helps establish that if the church did not actually know of the priest's conduct, it should have known. Finally, each additional victim adds credibility to your client's claim.

You may find it difficult to encourage other victims to come forward. Embarrassment, humiliation, and feelings of guilt may make victims reluctant to admit they were molested. Some deny that such incidents ever occurred, even after the priest admits to the assaults. You may need to assure them that they will not be called as witnesses and that their identities will not be publicly disclosed.

Recovery of damages

As a practical matter, successfully suing only the perpetrator in a civil action may bring the plaintiff little or no compensation. Most insurance policies exclude coverage for intentional acts, including sexual abuse. (34) Unless the perpetrator has personal assets, the injured party is left without an effective remedy.

It is therefore essential to plead all viable claims against supervisors and the employing church or religious organization, where the facts reveal that they knew or should' have known of the employee's harmful conduct. Base the claim against the employer on negligence.

In Doe v. Shaffer, the Ohio Supreme Court declined, on public policy grounds, to exclude the negligence of a nonmolester from insurance coverage. (35) The court found that since the diocese and bishop who employed the alleged abuser were being sued for negligence, including negligent hiring and retention, the claims against them were distinguishable from those against the perpetrator. The court determined that societal interests would be promoted by its finding that the employer and supervisor were covered by the insurance policy.

Many churches' insurance policies now contain exclusions for employee sexual misconduct or require a substantial deductible. Nevertheless, the employer will probably have substantially more assets than the perpetrator that can be used to satisfy any judgments.

In many cases, the church's or diocese's failure to take action after receiving actual notice that an employee has engaged in sexual misconduct is sufficient to establish a claim for punitive damages. In these cases, you must allege willful, wanton, and reckless conduct to support the claim.

Anticipate preliminary objections to a claim for punitive damages on constitutional grounds. Some courts have concluded that these damages are recoverable against a religious institution. (36) They have found that information used to determine a diocese's net worth can be secured from published information and does not constitute an intrusion on First Amendment rights. (37)

When you undertake a claim of sexual abuse by a member of the clergy, the battle will involve numerous legal issues not encountered in a typical negligence claim. Despite the obstacles, plaintiff lawyers should pursue these claims to ensure that those who have been harmed are fully compensated under the law.

Notes

(1.) See Benton v. Vonnahmen, 679 N.E.2d 1270 (Ill. App. Ct. 1997); 735 ILL. COMP. STAT. ANN. 5/13-202.2 (2001); see also Werre v. David, 913 P.2d 625 (Mont. 1996); C.J.C. v. Corp. of the Cath. Bishop of Yakima, 985 P.2d 262, 267 (Wash. 1999).

(2.) Doe v. Shults-Lewis Child & Fam. Serv., Inc., 718 N.E.2d 738 (Ind. 1999).

(3.) Id. at 744-45 (citing Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993)).

(4.) 966 S.W.2d 286 (Ky. Ct. App. 1998).

(5.) 924 P.2d 196, 202 (Haw. 1996).

(6.) See H.R.B. v. Rigali, 18 S.W.3d 440 (Mo. Ct. App. 2000); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780 (Wis. 1995).

(7.) See Pritzlaff, 533 N.W.2d 780; Ayon v. Gourley, 47 F. Supp. 2d 1246 (D. Colo. 1998); Swanson v. Roman Cath. Bishop of Portland, 692 A.2d 441 (Me. 1997).

(8.) Pritzlaff,, 533 N.W.2d 780, 791; Swanson, 692 A.2d 441, 443-44.

(9.) Smith v. Privette, 495 S.E.2d 395 (N.C. Ct. App. 1998); C.J.C., 985 P. 2d 262; Kenneth R. v. Roman Cath. Diocese of Brook., 654 N.Y.S.2d 791 (N.Y. App. Div. 1997).

(10.) Barquin v. Roman Cath. Church of Burlington, Vt., Inc., 839 F. Supp 275 (D. Vt. 1993); Inter-community Ctr. for Justice & Peace v. I.N.S., 910 F.2d 42, 44 (2d Cir. 1990).

(11.) 839 F. Supp. 275 (D. Vt. 1993).

(12.) 196 F.3d 940, 949 (9th Cir. 1999).

(13.) 980 P.2d 77 (N.M. Ct. App. 1999).

(14.) Destefano v. Grabrian, 763 P.2d 275, 285 (Colo. 1988); R.A. v. First Church of Christ, 748 A.2d 692, 700 (Pa. Super. Ct. 2000); Jones v. Trane, 591 N.Y.S.2d 927 (1992).

(15.) Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000); Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996).

(16.) 977 P.2d 1163 (Or. 1999).

(17.) Id. at 1167.

(18) Id.

(19.) Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457 (3d Cir. 1993).

(20.) Does v. Comp Care, Inc., 763 P.2d 1237, 1241 (Wash. Ct. App. 1988); see also RESTATEMENT (SECOND) OF TORTS [section] 315 (1965).

(21.) 985 P.2d 262, 274.

(22.) 950 P.2d 501 (Wash. Ct. App. 1998).

(23.) C.J.C., 985 P.2d 262, 273; see also L.P. v. Oubre, 547 So. 2d 1320, 1324 (La. Ct. App. 1989).

(24.) C.J.C., 985 P.2d 262, 274.

(25.) See Marquay v. Eno, 662 A.2d 272 (N.H. 1995); Coath v. Jones, 419 A.2d 1249 (Pa. Super. Ct. 1980); see also RESTATEMENT (SECOND) OF TORTS [section] 302B (1965).

(26.) 742 A.2d 1052 (Pa. 1999). This case was remanded to the superior court, which affirmed the cause of action under [section] 317 and compensatory damages against the bishop and diocese but not punitive damages. The issue is on appeal before the Pennsylvania Supreme Court.

(27.) Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. Ct. 1992); Commonwealth v. Stewart, 690 A.2d 195, 201 (Pa. 1997); see also Secter, 966 S.W.2d 286.

(28.) Stewart, 690 A.2d 195, 197.

(29.) Id. at 200.

(30.) Melinda Henneberger, Vatican to Hold Secret Trials of Priests in Pedophilia Cases, N.Y. TIMES, Jan. 9, 2002, at A8.

(31.) C.J.C., 985 P.2d 262, 271.

(32.) Hutchison v. Luddy, 611 A.2d 1280 (Pa. Super. Ct. 1991).

(33.) Kathleen Burge, Geoghan Found Guilty of Sex Abuse, B. GLOBE, Jan. 19, 2001, at A1.

(34.) Gearing v. Nationwide Ins. Co., 665 N.E.2d 1115 (Ohio 1996); Wendy J. Murphy, Keeping Your Client Covered, TRIAL, Mar. 2002, at 48.

(35.) 738 N.E.2d 1243 (Ohio 2000).

(36.) Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806 (Minn. Ct. App. 1992); Secter, 966 S.W.2d 286.

(37.) Mrozka, 482 N.W.2d 806, 812.

Richard Serbin is a partner with Reese, Serbin, Kovacs & Nypaver in Altoona, Pennsylvania.
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