Litigating The Distant Past
Litigating The Distant Past
By Amy Johnson Conner
Plaintiffs' lawyers who take on the church in the present environment face an unusual challenge: They have to be relentless advocates to clear formidable statute of limitations barriers, while simultaneously being careful not to get swept up in a supercharged environment that could easily deteriorate into a witch hunt.
The solution is to screen cases carefully, both for their legal viability and for the reliability of the prospective client's claims. So far, most lawyers seem to be taking these dual tasks very seriously.
"I would say one in 20 cases might have merit to be brought," said Washington solo Tim Kosnoff, who negotiated a $3 million settlement with the Mormon Church in Oregon last year.
Katherine Freberg takes on even fewer cases that come into her Southern California office.
Since her $5.2 million settlement against the Catholic Church in Los Angeles and Orange County in 2001, she has received one or two calls every day from victims.
"However, because the vast majority of them have statute of limitations problems, there's not really a lot I can do for them. I have only two filed and I've got a few down the pipe I think are a possibility," she said.
A state's statute of limitations can be an insurmountable barrier to filing a sexual battery claim for an adult victim. In many states, the clock begins to tick on this type of claim when the injury first occurs or within a few years after the victim reaches the age of majority, and this makes most claims impossible to file.
That's not fair to victims, said Jeff Anderson, a St. Paul, Minn., attorney who has handled hundreds of these cases since 1983. "In sex abuse cases it takes many years for most victims to discover that the abuse was the source of injury," he said.
Years of legislative lobbying, though, has had an impact and now 20 states have relaxed their statutes so that the clock begins ticking when victims realize the abuse is the cause of injuries they've suffered.
"My experience is that in the late 20s at the earliest, typically the mid 30s, you can deal with emotions and you have the life experience and level of maturity to say 'I'm ready to do something, to stand up to my accuser. I don't want to live with this in me anymore,'" said Kosnoff.
Defense lawyer Randal Mathis, who represents the Roman Catholic Diocese of Dallas, said allowing more time under statutes of limitations is unfair to the defense.
"People in the law enforcement community know how difficult it is to investigate child abuse allegations at all. That's how [the abuser] gets away with it, because it's hard to detect, hard to investigate and hard to prove it," he said. "That's when you're doing it promptly. When you wait 20 years and people have died or memories have faded or people have emotional problems...you're never going to be able to legitimately investigate."
Salt Lake City defense attorney Von Keetch agrees.
"For many of the claims that are arising [for] abuse in the '60s and '70s, most of the witnesses have died, most of the people who have allegedly been involved or have notice have died," said Keetch, who has represented the Mormon Church in these matters for 15 years. "It presents an extremely difficult situation to defend those kinds of suits when they are so old."
Anderson counters that it doesn't offend due process because it's the perpetrators themselves who "bury the best evidence deep in the minds and souls and psyches of the victims, just like someone who kills someone buries the body." That shouldn't prevent them from being prosecuted years later, Anderson said.
When the statute of limitations does not block a clergy sex abuse case, lawyers typically sue for sexual battery against the clergy and the church hierarchies behind them. Cases filed after those statutes have run allege anything from racketeering, fraud and conspiracy if there was a cover-up, to violation of mandatory reporting of child abuse laws, if a state has one that covers its clergy.
With years of experience to test their theories, plaintiffs' attorneys have developed ways around statutes of limitations that limit claims for sexual abuse.
One of Kosnoff's cases alleges liability for the failure of the Mormon Church to report that sex abuse was occurring.
Although Oregon has a mandatory reporting law, it exempts clergy if they hear of the abuse in a clergy-penitent situation, such as confession. If clergy hear of the abuse from a third person or outside confession, they have an obligation to report it.
Because the bishop in his case did not hear of the abuse in confession, Kosnoff plans to argue he had a duty to report the incidents and warn anyone who may have been in danger from that pedophile.
The church claims the bishop never knew of the perpetrator's past.
Not all states have mandatory reporting laws that apply to the clergy. According to a recent report in The Christian Science Monitor, 18 states do not specifically require clergy to report sexual abuse of children under their mandatory-reporting laws. Another 19 states mandate that church officials, as well as everyone else, pass on information, with the exception of incidents that come up in "clergy-penitent" conversations, such as confession, the paper reported.
In six states, "all persons" must report, but the clergy's status is unclear; seven states require that churches always relay information, even when it is gleaned in the confessional booth or from a session between Christian Science practitioner and patient, the paper reported.
Freberg looks for claims that might not be obvious on the surface, taking a creative approach to cases that might seem, at first glance, to be dead in the water.
"See if there are other causes of action supported by the facts, for example, harboring a known felon," she said. "I believe the church should have liability if they harbor a known felon. That act may continue until the date they let the priest go."
"There's always different ways of doing these cases," she said. "You've got to be creative. Really get into the facts, do background research in the facts and the law."
Faced with many clients whose cases seemed barred by a statute of limitations, Dallas plaintiffs' attorney Sylvia Demarest searched for evidence of fraud and conspiracy.
What she eventually found was a questionable relationship between the church officials and the local psychologist to whom they referred abuse victims.
The psychologist had treated not only the victims, but also the accused priests, and sometimes, treated the two together in joint sessions. When the church referred victims to this psychologist, he encouraged them not to pursue claims against the church, Demarest explained.
Texas' statute of limitations against the perpetrator of the fraud begins when victims realize or should have realized they were being deceived, so Demarest relied on this when filing suit.
Conspiracy laws in most states require an outside entity - it's not a conspiracy if the organization conspires within itself. She said that in her case, it was the involvement of the psychologist that provided the outside entity needed to bring a conspiracy case.
She was successful at proving this at trial.
Demarest also explored the level of involvement at the highest levels of the church.
She filed suit against the National Conference of Bishops, alleging that the uniform handling of cases across the country could only have come from the bishops and thus the group was liable for the cover-up. However, the case became embroiled in the appellate process for more than two years, so she decided to dismiss it.
One claim that's often hard to prove is respondeat superior, which pins liability on an employer for the actions of an employee during the course of employment. Both Freberg and Kosnoff are doubtful it can be successful because employers are usually only held liable if the employee's actions could help the company. They said it would be awfully difficult to argue that sexual abuse could promote the interests of the church.
These cases "require some kind of active negligence on behalf of the church," Freberg said. "In the Mormon Church, respondeat superior is not going to get you very far," Kosnoff adds. "If the priest was motivated by a desire to impart spiritual guidance to the child and in the course of that, began to groom the child and family for later sexual abuse, then respondeat superior will work, because there's a mixed situation there. It's a weak theory."
He said lawyers should focus on cases of actual knowledge "where they knew, they covered it up and didn't warn the parents and didn't take some other steps to protect the child."
There is always the possibility that someone - whether mentally ill and delusional or just an opportunist - will try to advance a false claim. But plaintiffs' lawyers insist that is highly unlikely.
"I've never seen it. I'm not saying it couldn't happen, but it's one of those things that's hard to fake," Kosnoff said. "I have interviewed so many victims and...they relive it in front of your eyes, it is so real."
Kosnoff said that in prison, he's "interviewed some real bad dudes who have done terrible things who melt into a little 7-year-old child and begin crying in front of you when they recount what happened. It's so profound I don't think it's very easy to fake. The other thing is, there's still so much public shame associated with it."
Some clients who seek Kosnoff's representation or witnesses in his cases have never told anyone about their abuse; they worry their spouses, children, employers or friends will treat them differently if they find out, he said.
"There's a stigma that because you were abused you are probably at a greater likelihood to abuse others. All of this kind of stuff deters people from coming forward," Kosnoff said. "The problem is not that fake charlatans come out, it's that legitimately hurt people still don't feel safe to come out."
Although the credibility of her clients becomes stronger with each additional allegation of abuse, Freberg is still cognizant of her obligations to the profession.
For "every client that comes in the door, you have an obligation to be very careful in questioning them to make sure the story makes sense, to make sure their story can be verified as much as possible," she said.
Kosnoff said he spends a fair amount of time and money investigating potential cases before filing suit.
"I put the money into the front end very quietly, very discreetly. I go to places, meet people, hire investigators, get on the phone and call people. I want it to be a done deal before the complaint even gets drafted so I don't have big questions about liability or statutes of limitations or whatever," he said.
And, the climate doesn't change the fact that plaintiffs still bear the burden of proving their claims.
"The burden of proving it happened still falls on the victim and if the victim comes forward and reports it, and they're not a credible person, the report is not credible, it's not going to be believed and therefore can't be proved," Anderson said. "The only cases that get prosecuted are civil or criminal cases where the victim is credible, the report itself is believable and there is corroboration, other victims or other experiences."
Mathis and Keetch both declined to comment about whether plaintiffs' lawyers have other motives behind courting media attention, but the criticism has surfaced in recent media reports.
That's the only thing both sides can agree on.
Anderson has been inundated with calls from all kinds of media outlets, thanks to the growing attention to sexual abuse by the clergy. And he makes no apology for making time for every inquiry, because he believes that media attention is crucial to both pressuring churches to make changes and bringing forward new victims.
"I don't apologize for making public what I know I can prove known to the public. It's the public's right to know and my need and moral obligation to make it known to them...to warn them, to let them know the Mormon Church is not a safe place for children, that you can't trust a Catholic priest with your children," Anderson said.
Demarest said media attention is crucial to finding out the severity of the problem, particularly in a diocese that's never had a public scandal before.
"Until people can read about what happened to someone else, they're not going to realize what happened to them is part of the pattern to conceal," she said. "Local publicity was very essential in finding out other [victims] and that those people were treated equally badly. Once people understand they weren't alone, it was easier for them to come forward."
Media attention, though, brings out church supporters as well as critics.
"What you see over and over is when a priest is accused of sexual abuse, his defenders come forward and say things like 'Father's a wonderful man, he made mistakes but that was years ago and he's put that behind him,'" Demarest said.
But invariably, the tide turns to the plaintiffs' favor.
"Then the next day, five more victims come forward," she said. "You see that pattern time and time again. Rarely is there one victim and one perpetrator. And if you handle these cases in secret, that is part of perpetuating the secret."
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