Lawyers Have New Tool in Clergy Abuse Cases

By Olivier Uyttebrouck
Albuquerque Journal
September 22, 2016

https://www.abqjournal.com/851427/churchs-liability-in-abuse-debated.html

Copyright © 2016 Albuquerque Journal

Lawyers representing alleged victims of clerical sexual abuse told a judge last week that the Archdiocese of Santa Fe is liable for the actions of its priests because it provides them with “extraordinary power” over parishioners, comparable to that of police and corrections officers.

The legal theory, called “aided-in-agency,” is becoming more common in civil cases and gives attorneys a potent new tool in clerical abuse cases, attorneys in the case said.

Second Judicial District Judge Denise Barela Shepherd agreed and ruled Sept. 14 that a San Miguel County man who alleges he was raped by a Las Vegas priest in the late 1970s can use the aided-in-agency theory in his lawsuit against the archdiocese.

The judge also urged the archdiocese to appeal her ruling to an appellate court. Barela Shepherd said in the hearing that the issue needs the clarity that an appellate court can provide.

The order marks the second time in two months that a District Court judge has ruled against the archdiocese on the issue.

Last month, District Judge Alan Malott rejected a motion from the archdiocese in another clerical abuse lawsuit that had asked Malott to prohibit use of the aided-in-agency theory in that case. In his Aug. 11 order, Malott ruled that “it is undisputed those priests were cloaked with considerable power by their employer,” making the archdiocese liable for the priests’ sexual abuse of children.

The two cases are among more than 60 lawsuits Albuquerque attorney Brad Hall has filed against the archdiocese since 2011. Most of those cases have been settled for undisclosed amounts.

An attorney for the archdiocese told Barela Shepherd that the theory should not apply in clerical abuse cases because a priest’s relationship with parishioners, including children, more closely resembles a doctor-patient relationship than that of a prison guard with an inmate or a police officer with a citizen.

Attorney Luis Stelzner also said that the aided-in-agency argument violates the U.S. Constitution’s First Amendment protection of religion because it requires the court to delve into the church’s relationship with its priests, and that of priests to parishioners.

The New Mexico Supreme Court cited the aided-in-agency theory earlier this year when it ruled that a private prison company was liable for the rapes of three inmates by a former prison guard.

Employers typically are not liable for an employee’s misdeeds if they fall outside the scope of the employee’s usual duties, justices wrote in their March ruling. The aided-in-agency theory extends liability to an employer in cases where the employee has “substantial power or authority to control important elements of a vulnerable victim’s life,” justices wrote.

Lisa Ford, an Albuquerque attorney representing the alleged victim, said in the hearing that the aided-in-agency theory does not violate constitutional religious protections because a jury would be asked only to recognize priests as authority figures.

“Priests in the ’70s and ’80s were regarded as people of substantial power and authority in the community,” Ford said. “It is a sociological statement.”

Stelzner responded that a priest’s relationship with parishioners “goes right to the essence of church authority,” and involves the theology and teachings of the church.