Employers Not Liable for Abuse, Courts Say
Va. Rulings Concern Lawsuits Filed Years Later by Adults Allegedly Victimized As Children

By Caryle Murphy
Washington Post [Virginia]
June 29, 2005

Two Virginia Circuit Court judges have ruled that victims of child sexual abuse cannot sue the employers of their abusers when the victims file civil lawsuits years later as adults.

The June 8 rulings came in two separate cases in Richmond and Norfolk and were victories for the Roman Catholic Diocese of Richmond, a defendant in both lawsuits.

Practically speaking, the rulings mean that churches, schools, corporations and other institutions cannot be held financially liable for abuse by an employee when a victim seeks damages years later. The judges cited a 1994 state constitutional amendment in issuing their opinions, the plaintiffs' attorneys said.

"Unless the individual perpetrator has significant assets, [abuse victims] have no realistic expectation of being compensated," said James C. Lewis, an attorney for the plaintiff in the Norfolk case.

The judges' decisions, which coincidentally came on the same day, arose from unusual language in the 1994 constitutional amendment that extended the time during which child abuse victims can file lawsuits.

For years, Virginia's personal injury law allowed people to file a lawsuit only within two years of an incident. The same standard was used in childhood sexual abuse cases. For minors who had suffered sexual abuse, the two-year clock began ticking when the victim turned 18.

Recognizing that many victims of child sexual abuse repress those experiences and recall them later, the Virginia legislature enacted a 1991 law that allowed adults to file suit within two years of becoming aware of their abuse through the diagnosis of a mental health professional.

The Virginia Supreme Court, however, struck down that law, calling it an unconstitutional extension of the time period for filing civil damage lawsuits.

The legislature countered with the 1994 constitutional amendment permitting such extensions. However, the amendment stated that such lawsuits could be filed only against a "natural person."

Richmond Circuit Court Judge Walter W. Stout III and Norfolk Circuit Court Judge Joseph A. Leafe both concluded that this phrase means an individual human being, or the actual perpetrator of the abuse, and not corporate entities, according to attorneys in both cases.

"The resounding effect this could have, if it's allowed to stand, is that the church can never be held liable in these cases," said Edward L. Weiner, attorney for the plaintiff in the Richmond case.

William F. Etherington, who represented the Catholic diocese in that case, said the ruling was fair and noted that "the constitutional amendment uses the phrase 'natural person' twice," signaling that legislators "meant to make a distinction between corporations and individuals."

Legal experts said the phrase "natural person" is not common in similar legislation in other states.

Marci Hamilton, a law professor at New York's Cardozo Law School and author of a newly published book, "God vs. the Gavel," said many states have passed legislation allowing adults to seek damages for childhood abuse that took place years earlier.

But, Hamilton added, "I don't know of any state that uses 'natural person' as part of the statute. . . . It doesn't make any sense to have that language in there unless they were trying to protect institutional wealth."

The wording "doesn't reflect reality, particularly in the case of abuse in the church," said Mark Serrano, regional representative of the victim advocacy group Survivors Network of Those Abused by Priests. "The reality is that perpetrators wouldn't have been so successful at luring victims had their bishop, their church place, their employer not enabled them to continue . . . in ministry serving around children."

Leafe ruled in the case of a man who filed a $5.3 million suit against a former nun, the Richmond diocese and the nun's order, seeking damages for being sexually abused by the nun 35 years ago when he was in fifth grade at a Catholic school in Virginia Beach.

The former nun was convicted last year of molesting the man and served about 90 days of a six-month sentence, Lewis said.

Stout's decision came in a Richmond lawsuit filed against the diocese by Stephen Kopalchick, 52, of Chester, Va., who alleged that two priests abused him 40 years ago. One of the priests is dead; the other has Alzheimer's disease and lives in Spain.

Weiner, who represents Kopalchick, said Stout's ruling came after months of expensive preparation for a trial set to start in September. Kopalchick, he added, has "poured a lot of money into this" and has not decided whether to appeal.

Kopalchick, noting that corporations are widely regarded as "persons" in U.S. law, said he did not see why putting "natural" in front of "person" should change that.

"If I have a ball and if I put the word 'green' in front of it doesn't mean it's not a ball," Kopalchick said. "Defining 'person' that way bothers me, and it bothers me a lot."