New Hope for Suits against the Church

By Robin Topping
February 19, 2003

The scathing Suffolk grand jury report on the alleged sexual abuse by priests in the Diocese of Rockville Centre may provide a way for victims looking for redress to stretch the usual legal limits.

Under the law, the statute of limitations for filing a civil suit that charges sexual assault and battery is one year from the time the incident happened. There is also a provision allowing a child victim to file suit within a year of turning 18.

But lawyers across the country are looking at whether the report contains evidence of what the law calls "fraudulent concealment" on the part of diocesan officials. If attorneys for abuse victims can show the diocese engaged in fraud, they might be able to buy more time for their clients to file new lawsuits.

The 180-page report, released by Suffolk District Attorney Thomas Spota, depicts how the diocese hierarchy concealed the alleged criminal behavior of its priests by moving them from parish to parish and used "deception and intimidation" in dealing with abuse victims.

Within the report were details of how the lawyer for the diocese, former vice chancellor Msgr. Alan Placa, allegedly told victims he was providing pastoral counseling when he was actually trying to short-circuit litigation and keep down legal costs.

The diocese issued a statement saying it "unequivocally rejects the characterization of its actions given by this report."

The law says that if a plaintiff can show a defendant intentionally sought to mislead a victim, then that victim has six years to file a suit from the date the fraud was committed or two years from the date the fraud was discovered - whichever comes later.

"The report is replete with the elements of fraud relating to fundamentally concealing from parishioners ... on the broadest level, the fact that they knew they had a serious problem with sexually abusive priests," said attorney Michael Dowd of Manhattan, who represents about 20 victims from Long Island.

Dowd used the fraudulent concealment argument in a suit he filed in Queens in December on behalf of 42 victims in the metropolitan area. The core of his argument is that the concealment prevented the victims from knowing that they had a legitimate right to sue. Now that the alleged cover-up has been made public, the victims should be able to exercise that right, Dowd contends.

He is arguing that the diocese had a special responsibility, known as a fiduciary duty, to protect parishioners and their children and warn them of any dangers. "Failure to do that constitutes negligence, at a minimum," Dowd said.

The grand jury report could be the basis of a request to file a new lawsuit, experts say. But plaintiffs also have to show that the report provided new information on fraud that, even with "reasonable diligence," they could not have discovered on their own, said Vincent Alexander, who teaches civil law at St. John's Law School in Jamaica.

Proving fraud on the part of the church might also be a way to set aside a prior settlement for the purpose of filing a new suit, experts say.

"Essentially a settlement is a contract and fraud is one way of undoing such a contract, if they have the facts to back it up," Alexander said.

But it is not an easy legal burden to meet. Plaintiffs have to show that the defendant had an intent to deceive, that they made a false representation and that the plaintiff relied upon that falsehood and deserves damages because of it, said David Siegel, a law professor at Albany Law School, who wrote the New York State guide to civil practice.

Other attorneys who have represented abuse victims say they have met with limited success using the fraudulent concealment argument. But they regard the recent grand jury report as compelling evidence that the church had a "pattern and practice" of deception that could be similar to other dioceses.

"This is the most breathtaking, comprehensive description of the problem I have ever seen," said Jeffrey R. Anderson, an attorney in St. Paul, Minn., who, nationwide, has handled more than 700 cases for victims of priest sexual abuse. "We have been making this argument for years but it is usually met with judicial skepticism because the courts refuse to believe the church hierarcy could perpetuate such a fraud. This report gives us new life and new hope."

Melanie Little, a Garden City attorney who represents a dozen victims on Long Island, many of whom testified before the Suffolk grand jury, said she will file a new lawsuit based on the report's findings.

"Any judge would be hard-pressed to overlook what the grand jury has said," Little said. Many of her clients had filed suits for incidents that happened years ago. Usually, the church would ask for dismissal on the basis of the statute of limitations and the court would rule in its favor. And if the suit did go forward, Little said, "It was usually impossible to get any documents" from the church.

"This report is based on the testimony of 97 witnesses and a mountain of documents," Little said. "It's going to be awfully hard for a judge to say the church didn't conceal anything."

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