NY Diocese Appeals Vermont Ruling in Priest Sex Abuse Case

By Sam Hemingway
Burlington Free Press
September 23, 2013

The Albany, N.Y., Roman Catholic Diocese is disputing a Vermont federal judge’s decision to allow a case to proceed involving claims a New York priest abused a youth during trips to Vermont in the 1980s.

In papers filed at U.S. District Court in Burlington earlier this month, the New York diocese claims that federal court in Vermont lacks authority to preside over the case.

The lawsuit was filed in 2011 by a New York man who claims he was molested repeatedly as a young boy by the Rev. Gary J. Mercure of Albany, N.Y., during visits to Vermont.

The Burlington Free Press does not publish the names of victims of alleged sex crimes without their permission.

Mercure is serving a 20-year sentence in Massachusetts for sexually assaulting two former altar boys, including the victim in the Vermont case, during ski trips. He has been banished from priestly duties by the diocese but has not been defrocked.

U.S. District Court Judge William K. Sessions III, in a Sept. 3 decision, wrote that there was enough overlap between Vermont parishioners and priests from Albany who provided religious services in Vermont to rule that the court had jurisdiction in the current lawsuit.

“When a priest travels outside of the Albany diocese to perform a service, he remains an officer of the diocese and is ultimately responsible to it,” Sessions ruled.

The diocese has requested permission from Sessions to appeal the ruling. Church lawyers contend the diocese was not responsible for Mercure’s alleged conduct, and federal court in Vermont was the wrong place for the case to be heard.

“The diocese of Albany lacks knowledge as to whether Mercure traveled to Vermont with plaintiff,” lawyers for the diocese wrote. “Mercure’s trip is not alleged to have been sanctioned, sponsored or authorized by the diocese.”

In his ruling, Sessions acknowledged his decision represented a “close call,” and the diocese seized on that point in its appeal request.

“There is ‘substantial ground for difference of opinion’ on the permissibility of general jurisdiction here,” the diocese’s filing stated, quoting a portion of Sessions’ decision.

The diocese’s request, called an interlocutory appeal, requires the judge to decide if an appeal is warranted. If Sessions rejects the request, the diocese can ask the 2nd U.S. Circuit Court of Appeals in New York City to overrule him.

According to a report in the Albany Times Union newspaper, the victim testified at Mercure’s trial in Massachusetts that Mercure raped him during a swimming trip to Lake St. Catherine in Poultney, at a rectory in New York, and at a ski lodge in Massachusetts in the 1980s.

The rapes began when the victim was 8 or 9 years old, the newspaper reported.

The victim filed his lawsuit in Vermont because the state’s laws about pursuing such claims are less restrictive than New York’s, according to the newspaper.

If the diocese fails in its appeal of Sessions’ ruling, that could lead to the Albany diocese having to release its priest sexual abuse records for the first time.

The victim’s lawyer is Jerome O’Neill, who represented scores of priest sexual abuse victims in Vermont. One of the diocese’s lawyers is Thomas McCormick, who defended the Vermont diocese in the Vermont clergy abuse lawsuits.








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