|Ruling Has Changed the Stakes
By Tim Townsend
St. Louis Post-Dispatch
September 6, 2007
An 11-year-old boy was molested in 1982 by a priest from Little Flower Parish. The victim, now a St. Louis attorney, said he repressed the memory and didn't connect the abuse to his psychological problems until 2004.
The attorney knew the state's statute of limitations had expired in his case. The St. Louis Archdiocese knew the same, offering him only $20,000 in mediation.
After the man rejected the offer, a St. Louis judge refused to dismiss his lawsuit, allowing the case to go to a jury trial.
The judge cited a June 2006 Missouri Supreme Court ruling that added new wording on how the statute of limitations can be applied, essentially allowing a court to consider when a victim not only recalled the abuse, but recognized the harm it inflicted. Facing the possibility of a jury trial, the archdiocese revised its offer to the St. Louis attorney, who agreed to settle in July. The final amount: $300,000.
Attorneys say the ruling, Powel v. Chaminade, provides new hope for the cases of dozens of Missourians abused by priests who, up until now, had little chance of challenging the church in court.
"Powel came down, and the risks shifted," said Susan Carlson, who represented the attorney.
For any church whose clergy have been accused of sexually abusing minors, the ruling is a wake-up call and could represent a loss of millions more in settlements to avoid trials with potentially unsympathetic juries, attorneys say.
In St. Louis, 15 people who say they are victims of clergy abuse are in mediation or negotiation with archdiocese. Their attorneys say the cases represent the beginning of a long line of possible abuse victims who may use the Powel ruling to strengthen their legal position with the church.
"Unfortunately, the phone never stops ringing with new cases," Carlson said.
Attorneys for the church, however, say once the courts have had a chance to grapple with the Powel ruling, the statute of limitations in Missouri will remain relatively unchanged.
"We have confidence courts will interpret Powel accurately," said Bernard Huger, an attorney for the St. Louis Archdiocese. "We don't think the law has changed."
The St. Louis attorney, who asked not to be identified because he is a victim of sexual abuse, said the key to his negotiations was the leverage provided by the ruling. "Hopefully, Powel now means the archdiocese will have to start paying victims more money."
Most settlements with the archdiocese are the result of mediations with victims whose statute of limitations had expired. Before the Powel ruling, victims often would agree to whatever the church offered — usually $15,000 to $40,000.
Since the Powel decision, the St. Louis Archdiocese has settled 16 cases for $1.4 million, Huger said. Excluding the St. Louis attorney's deal, that's $73,000 per case. But Huger said the Powel ruling hasn't slowed the church's ability to avoid a trial, nor has it forced the church to give larger settlements.
"We've made settlements in different ranges, but you cannot put that on Powel," he said. "We have to take all the factors in these cases together."
In the wake of the Catholic clergy abuse scandal that began in 2002, a jury trial is something most religious institutions want to avoid, said David Achtenberg, a law professor at the University of Missouri-Kansas City. The risks to the church "are obviously greater when a case is going to go to a jury."
The St. Louis Archdiocese has settled 94 cases of clergy sexual abuse for $7.8 million since the 1950s, Huger said. Most of those cases have been settled since 2002, including one for $1.7 million.
"We'd far rather settle a case than try a case," Huger said. "Our whole goal is to resolve these cases rather than put anyone through trial."
So far in St. Louis, five lawsuits that may have otherwise been summarily dismissed were defended, in part, under the Powel ruling. Three survived the church's request to dismiss, including the St. Louis attorney's case that was settled. Before Powel, none of the five cases had a chance for trial, Carlson said.
THE POWEL CASE
In Powel v. Chaminade, the state Supreme Court heard how Michael Powel regained memories of abuse in 2000 after being treated for a brain tumor.
Powel said he was sexually molested by two teachers at Chaminade Preparatory College in the mid-1970s, when he was a teenager. He argued that the statute of limitations should have been measured from the time his memory had been recovered, not from the time the abuse allegedly occurred.
Before the ruling, state courts had imposed a more rigid view of the statute of limitations that required filing claims of childhood sexual abuse within five years of turning 21, or by age 31, depending on which law was in effect at the time of the alleged abuse.
The Powel decision "rejected the argument that in every case of childhood sexual abuse the victim would always be immediately aware of the fact that the abuse had occurred, and that they had been injured," Achtenberg said.
A week after the state Supreme Court decided the Powel case last June, the St. Louis attorney sued the archdiocese under the name John Doe AJ.
When John Doe AJ was 11, he attended a picnic for altar boys at Kenrick Seminary, where the Rev. Roger McDonough, an associate pastor at Little Flower Parish in Richmond Heights, molested him in a shower. McDonough died a few years later, and John Doe AJ said he repressed the memory until 1994, when he remembered the abuse and told his sister about it. Attorneys for the archdiocese argued that since John Doe AJ remembered the abuse in 1994, the statute of limitations clock should have started ticking then.
St. Louis County Circuit Court Judge Barbara Wallace ruled that a jury should decide when the suit should have been filed.
Meanwhile, the church has sought the dismissal of several abuse cases in Kansas City, citing statute of limitations. Plaintiffs have defended their suits, citing the Powel ruling. Decisions are expected as early as this week.
"On this side of the state, we don't know what the impact of Powel will be yet," said Jonathan Haden, an attorney for the Kansas City-St. Joseph diocese.
Rebecca Randles, an attorney who represents many clergy victims in Kansas City, said her firm has 14 abuse cases, representing 40 plaintiffs. She said the Powell decision "will impact every one of them."
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