NC judges side with Catholic diocese, say no second chance for child sex abuse lawsuits

Charlotte Observer [Charlotte NC]

May 4, 2022

By Sara Coello

The North Carolina Court of Appeals on Tuesday strengthened the barrier blocking two men from suing the Catholic diocese that they say allowed a former priest to molest them.

Both men filed lawsuits against the Roman Catholic Diocese of Charlotte in 2014, saying that former priest Richard Farwell sexually abused them when they were teenage parishioners in the 1970s and 1980s.

A Charlotte judge dismissed those lawsuits because the men were too old to take the diocese to court. Until a 2019 bill became law, North Carolina only let child sex abuse survivors sue until they turned 21.

Legislators unanimously struck down that rule by passing the SAFE Child Act, which included a two-year period when the statute of limitations didn’t apply. The window removed barriers for dozens of older plaintiffs, who are suing the University of North Carolina School of the Artsthe Boy Scouts, the YMCA and other organizations.

But legislators didn’t include a provision allowing survivors to revive cases that had been dismissed due to the statute of limitations. Without that, three appeals court judges decided Tuesday, plaintiffs who’d already had their cases struck down can’t take advantage of the updated law.

Too late, too early

The issue is a legal principle called res judicata. It effectively prevents people from refiling a lawsuit after a judge dismisses a claim. Plaintiffs generally can’t file another lawsuit about the same issue against the same defendants in hopes of a different outcome.

Under that doctrine, the two-year suspension of the statute of limitations for victims of child sex abuse would only apply to sex abuse survivors who hadn’t previously sued. First-time lawsuits against the diocese are pending, because those plaintiffs didn’t file their cases until the window opened on Jan. 1, 2020.

Sam McGee, the lawyer representing the two men trying to sue the diocese, said he respects the legal precedent. But it’s little comfort to his clients, who’d hoped that the revival window would allow them to demand the accountability they’d chased in 2014.

“These two guys are now in the unique position of having had their case dismissed both for coming to court too late and for coming to court too early,” McGee said. “It’s almost like they’re told that if they had waited a few more years, then they would have maybe had their day in court this time.”

‘Could be tricky’

Attorney General Josh Stein’s office filed amicus briefs to support both the plaintiffs, and has defended the window against other legal challenges. Its attorneys were reviewing the court decision Tuesday, spokeswoman Nazneen Ahmed said, and remain committed to protecting the SAFE Child Act.

McGee hadn’t decided by Tuesday afternoon how to move forward with the case. But his clients have options.

Andrew Hessick, who teaches at the UNC School of Law, said there are three potential paths to try to keep the case alive.

First, the plaintiffs could petition the Supreme Court of North Carolina to hear their case. Because the appellate court panel – judges Jeffery Carpenter, Fred Gore and John Tyson – agreed with a trial court that the lawsuits should be dismissed, the Supreme Court isn’t required to hear the cases. But the justices could choose to do so, and then overrule the lower courts.

Alternatively, the plaintiffs could ask the Mecklenburg County court where they first filed their cases to reopen then.

“Motions like that are at the court’s discretion, and they tend not to be successful because we like the idea of finality,” Hessick said. But the change in law would be solid grounds for a judge to agree with the plaintiffs, he said.

A third option would be to petition legislators to follow up on their 2019 vote with a separate law aimed at erasing the res judicata issue. But that’s not a common tactic.

“It’s rare to get a legislature to extend the statute of limitations like they did in this case,” Hessick said. “It’s really rare to get the legislature to enact a law like dispensing with res judicata or saying it doesn’t apply to revived actions.

But the SAFE Child Act, born of an elusive unanimous vote in both the house and senate, has already garnered more support than most legislation.

Skye David, a staff attorney at North Carolina Coalition Against Sexual Assault who lobbied for the bill, said she didn’t recall any legislators discussing how to handle dismissed claims. But the window was so important to the sex abuse survivors who rallied around the bill that any legal interpretation that could chip away at it would be a blow.

“I think it is an oversight, and I think it can be corrected,” David said. “(But) the route to doing so could be tricky.”

The allegations

Both men suing the Charlotte diocese filed their lawsuits anonymously. The Charlotte Observer doesn’t name people alleging sexual abuse without their permission.

The plaintiffs met Farwell years apart, but their stories are similar.

One said in his complaint that Farwell abused him in 1978 and 1979, when he was an underage teen. Farwell regularly had him come to his church and rectory, where he sexually assaulted him once then apologized repeatedly, according to his complaint.

The second plaintiff accused Farwell of sexually assaulting him in 1984.

He was about 10 years old when his family joined St. Ann’s Catholic Church in Charlotte and enrolled their son in the parish’s school. He served as an altar boy during services and also got spiritual counseling from Farwell, he wrote in his complaint.

So when he struggled to overcome shame and emotional turmoil when he was sexually assaulted at 14, it made sense for him to confide in Farwell.

But their relationship changed after the confession, he wrote in the lawsuit. Farwell began hugging him inappropriately in the church and rectory, the plaintiff alleged, and recommended he move from his family home to a residential facility where Farwell could visit him.

The plaintiff said his father drove him to stay at the rectory with Farwell for Thanksgiving break. There, the priest sexually assaulted the boy and apologized profusely, he wrote in his complaint.

When the men came forward in 2002, the diocese removed Farwell from ministry and reported the claims to police. Two years later, Farwell pleaded no contest to contributing to the delinquency of a minor. In 2005, the Lay Review Board found the allegations credible.

Farwell has since died. His former diocese, like many Roman Catholic organizations, has publicly bolstered its child protection policies and advertises resources for sex abuse survivors.

“The Charlotte diocese has zero tolerance for child sexual abuse and we encourage anyone who has been the victim of abuse to seek help and report to authorities,” the diocese said in a written statement in response to a previous lawsuit. “We also pray for peace and healing for abuse victims and their families and communities.”

In addition to the two dismissed lawsuits, the diocese faces pending litigation from more accusers. They say that former diocese staff including Rev. Francis Gillespieministry leader Al Behm and defrocked former priest Robert Yurgel sexually abused them while working as spiritual guides.