Memo a 'Smoking Gun' in Church Sex Abuse Case

By Gregory D. Kesich
Portland Press Herald [Maine]
July 16, 2004

A Roman Catholic Church official acknowledged having "serious concerns" about the Rev. Raymond Melville even before the priest was accused in 1990 of sexually abusing a teenager in Maine.

But church officials kept those concerns quiet for fear of "liability and . . . scandal," transferring Melville to two new parishes in three years, according to records recently uncovered by a lawsuit.

Lawyers for a Sidney man who has sued Melville and the church call the memo the "smoking gun" that shows that church officials are partly responsible for the behavior of an abusive priest.

But such claims have been blocked in Maine by a 1997 state Supreme Court decision that considers the supervisory relationship between a bishop and priest protected from legal scrutiny by the constitutional guarantee of free exercise of religion.

The memo is the centerpiece of an appeal pending before the court that seeks to overturn that decision, and if successful, could open Maine's religious institutions to lawsuits from victims in sex abuse cases.

The church is scheduled to respond to the appeal next month, and both sides could argue their positions before the court in the fall. A lawyer representing the church and the spokeswoman for the diocese had no comment on the pending case.

The lawsuit was filed in 2000 by Michael Fortin, who claims that Melville, a priest assigned to St. Mary's Church in Augusta, sexually abused him for seven years beginning in 1985, when Fortin was 13.

In 1990, a Baltimore, Md., man wrote Bishop Joseph Gerry reporting that Melville had abused him "emotionally, sexually and physically" when Melville was a seminary student during the 1980s.

"The possible tragedy of another young boy being a victim compels me to write this letter," wrote the man, whose name has been concealed in court records.

Gerry wrote back on March 19, 1990, promising to "address the matter vigorously and expeditiously."

But before that letter was sent, a memo dated March 18 was sent from Monsignor Joseph Ford to Auxiliary Bishop Amadee W. Proulx.

"Attached is another draft of a letter to (name redacted). I respectfully suggest that you avoid reference to no earlier complaints (about Melville).

"While we did not have any substantive or factual allegations of improper conduct, we did have serious concerns about his conduct placed before us, i.e., those of Msgr. Fitz sometime ago and the complaint last fall. There could be liability and at least scandal if those concerns were presented. The letter of (name redacted) confirms the validity of the concerns."

The documents do not explain the nature of the concerns or the complaint referred to in the memo. It was not clear who "Msgr. Fitz" was. No other draft of the letter was turned over in the lawsuit

According to court records, Melville went to a Golden Valley, Minn., treatment facility that spring. He returned to Maine in August and was reassigned to St. Joseph's Church in Lewiston. In 1992 he was transferred to Holy Name Church in Machias. He left the active priesthood in 1997.

Church officials say they did not know about Fortin's claim until he filed his suit in 2000. But in his brief to the Supreme Court, Fortin's lawyer, Sumner Lipman, said some of Fortin's abuse could have been stopped if Gerry had removed Melville from ministry and informed the people in his parishes about the charges in 1990.

Fortin was awarded $500,000 from Melville in Superior Court, but the case against the bishop was dismissed because of the precedent set in a 1997 case known as Swanson v. Roman Catholic Bishop of Portland.

In that decision, a majority of the court agreed that the bishop could not be held responsible for the actions of a priest accused of having an affair with a woman who went to him for marriage counseling.

Writing for the majority, then-Chief Justice Daniel Wathen wrote that examining the relationship between the bishop and priest would involve the examination of church teachings on sin, penance and reconciliation. "Because of the existence of these constitutionally protected beliefs governing ecclesiastical relationships, clergy members cannot be treated in the law as though they were common-law employees," Wathen wrote.

In his brief, Lipman said the Swanson decision was "wrongly decided."

"(It) has created blanket tort immunity for all actions of the diocese related to claims of sexual abuse by its clergy. Such blanket immunity prevents any judicial review of the actions of the diocese in placing a known pedophile in an unsupervised position of contact with children," Lipman's brief said.

The precedent was challenged in 2002 by a woman who sued a Protestant church after claiming she was sexually assaulted by her pastor on church property.

In its ruling in Napieralski v. Unity Church of Greater Portland, a majority of the court decided the issue without addressing the constitutional question, saying that Maine courts have never recognized negligent supervision as a valid legal claim.

The diocese has challenged Fortin's claims on the same grounds. It has also argued that the abuse that occurred when Fortin was a child doesn't fall within the statute of limitations.


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