Abuse Victims Group Ordered to Turn over Files to Lawyers Representing Accused Priests

By Mark Morris
Kansas City Star
April 21, 2012

http://www.kansascity.com/2012/04/21/3567796/abuse-victims-group-ordered-to.html

A group that supports sexual abuse victims will have to turn over decades of records to lawyers representing accused Roman Catholic priests, a Jackson County judge said Friday.

The judge agreed, however, to limit the amount of information that the Survivors Network of those Abused by Priests will have to search and disclose.

The broad demand for records going back more than 20 years has drawn national attention to the case, with some accusing the Catholic Church of bullying a victim advocacy group. Others have criticized the advocacy group, known as SNAP, for demanding transparency from the church while explaining little about its own role in holding the church to account.

Among a host of issues at play in the lawsuits, defense lawyers want to know whether SNAP has been coaching victims and potential plaintiffs on the controversial topic of repressed memory.

SNAP has denied doing so. But if defense lawyers can prove that the plaintiffs did not actually repress and later remember decades-old sexual abuse, judges would have to throw out the lawsuits under a five-year statute of limitations that the Missouri Supreme Court reaffirmed in 2006.

Jackson County Circuit Judge Ann Mesle said that a broad request for records suited the long timelines of this case, which alleges clergy sexual abuse of a 13-year-old boy in the 1970s.

“The issues of this case are serious,” Mesle said. “Yes, we’re going back 24 years, but this case goes back 40 years.”

The SNAP material also would be available for use in four other cases pending against the same priest, the Rev. Michael Tierney, and possibly for lawyers defending other priests in the Kansas City area and in Clinton County, Mo., Mesle said.

Mesle said she fully expected that her orders would be appealed by all sides, including the alleged victim, the church and SNAP, which is not a formal party to the case. That’s why the appeals courts are there, Mesle said.

“You can slog it out there,” she said.

Mesle said she anticipated issuing a written order, perhaps by Monday, that would take the original document request and limit it to several broad categories of information within SNAP’s possession related to sexual misconduct by priests in the Catholic Diocese of Kansas City-St. Joseph.

Lawyers representing priests and the diocese also agreed that the names of third parties who contacted SNAP with information about clerical sexual abuse could be removed from documents before they received them.

“One of the allegations in the press is that the lawyers and the diocese is trying to ‘out’ the alleged victims,” said lawyer Brian Madden, who represents Tierney. “Nothing could be further from the truth.”

Attorney Brendan J. Donelon, who recently joined SNAP’s legal defense team, acknowledged that the group’s stormy history with the church had hindered progress on the document request.

“I’m not trying to be obstructionist,” Donelon said. “I’m trying to get us to a point where we can get this resolved so it doesn’t take a lot of time and resources.”

But toward the end of the hearing, when it became clear that his client would be ordered to provide more than relatively easy-to-locate material related to a few priests, Donelon said he would keep his appeals options open.

Friday’s hearing was the latest step in the civil case against Tierney, who has served Kansas City and St. Joseph parishes since the early 1970s. His last posting was at Christ the King in Kansas City, where he worked until diocesan officials removed him in June.

The plaintiff in the case, identified only as John Doe B.P., has alleged that Tierney molested him in the 1970s, when John Doe B.P. was 13.

Tierney has denied any wrongdoing.

Last year Mesle ordered SNAP national director David Clohessy to submit to a deposition and turn over a broad swath of records, including more than two decades of email correspondence with victims, police, journalists and others.

Clohessy, Mesle said, “almost certainly has knowledge concerning issues relevant to this litigation.”

Clohessy and SNAP argued against the broad record disclosures, saying the demand was a thinly veiled attempt by the church to intimidate the group and the sexual abuse victims it serves. SNAP also argued that it was protected by a state privilege governing rape crisis centers.

SNAP appealed the subpoena, unsuccessfully, to the Missouri Supreme Court. Clohessy submitted to the deposition in January at a St. Louis hotel, where he declined to answer many questions or turn over the vast majority of records demanded under the subpoena.

In response, lawyers representing the priests and the local diocese asked Mesle to compel Clohessy to answer the questions and deliver the documents.

Mesle said Friday that she planned to order another deposition for Clohessy and possibly have a retired judge sit in to rule on disputes over whether documents or answers could be properly disclosed and answered.

Mesle acknowledged Friday that the repressed-memory issue was important to the cases.

“I believe they (lawyers for Tierney and the diocese) are entitled to have information on repressed memory,” Mesle said.

The repressed-memory issue came up in the earlier deposition. There Madden asked Clohessy what counseling, if any, SNAP provided to victims on the subject of repressed memory.

“OK,” Clohessy replied, “I’m going to be as polite as I can, but I am deeply offended. … We provide no instructions to anybody about repressed memory.”

In court filings, lawyers have noted that the repressed-memory question is a critical issue to resolve. Madden observed that five lawsuits against Tierney allege repressed memory and that most lawsuits against the diocese contain similar allegations.

“SNAP, through Mr. Clohessy, could be routinely advising plaintiff and others to claim repressed memory to evade the statute of limitations,” Madden wrote. “Defendants are entitled to discovery on that issue.”

Rebecca Randles , attorney for John Doe B.P., argued that he had never had contact with SNAP and that Doe’s psychiatrist had sworn that John Doe B.P. legitimately repressed his memories of Tierney’s alleged abuse.

Should a judge find, however, that a plaintiff did not repress the memories, it would give a priest or diocese a bullet-proof defense against long-ago abuse, whether or not the alleged memory was true or accurate.

Ruling in a priest-abuse case in 2006, the Missouri Supreme Court upheld a five-year statute of limitations on civil sexual abuse allegations, unless the victim could prove that he or she had repressed the memory. In such cases, the statute of limitation would begin to run whenever the victim recovered the memory and was “capable of ascertainment” that damage had been done.

A 2009 study could find no case alleging Catholic clergy abuse had prevailed or even survived an early motion to dismiss since the Supreme Court ruling.

“All subsequent state lawsuits have been time-barred under (the ruling),” the study noted.

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com