Diocese Wins Ruling on Abuse Records
By Brendan J. Lyons
Albany Times Union
February 7, 2014
|Gary Mercure, the New York
priest accused of raping two altar boys in the 1980s, is
sentenced in Berkshire County Superior Court.
The Albany Roman
Catholic Diocese will not have to turn over nearly 40 years'
worth of sexual abuse records after a federal appeals court on
Friday ordered the dismissal of a lawsuit filed against the
diocese in Vermont by a Warren County man who was taken across
state lines and raped by an Albany priest.
The ruling by the U.S.
Court of Appeals for the Second Circuit found that a
Vermont-based U.S. District Court judge, William
K. Sessions III, erred when he ruled the Albany diocese had
strong enough business ties to Vermont to be sued in that state,
where the victim's claim was not time-barred under the statute of
limitations. The federal lawsuit, filed in Burlington, remains
standing against the priest, Gary
Mercure, who is in prison for raping two altar boys.
A three-judge panel that issued the decision also noted
that had the diocese been forced release decades worth of
internal sexual abuse files, that disclosure could not be undone
if another court overturned the case on appeal following
"There is no evidence that this information has
previously been disclosed. The cat is still in the bag, and the
ensuing litigation will inevitably let it out," the judges wrote.
"Moreover, unlike a run-of-the-mill tort case, this litigation
implicates significant confidentiality interests for the diocese,
its priests, and (more alarmingly) other victims (and their
families) who would likely be subjected to distressing
depositions, revisiting pasts that would not otherwise be
revisited in a case solely against Mercure."
The judges compared their decision to dismiss the
lawsuit to a 2010 ruling by the same court that barred pretrial
disclosure of "confidential reports of undercover New York City
police officers protected by the law-enforcement privilege." They
cited wording in the earlier ruling that "once the cat is out of
the bag, the right against disclosure cannot later
The 37-year-old man who filed the lawsuit was raped by
Mercure in New York, Vermont and Massachusetts, beginning in the
late 1980s when he was an 8-year-old altar boy in Queensbury,
according to court records.
Vermont attorney Jerome
F. O'Neill said his client sought access to the Albany diocese's
internal sexual-abuse files dating to 1975, which the federal
judge in Vermont had granted. Those records have never been made
public or disclosed in litigation.
"We will continue to pursue the case against the
diocese's priest and we expect that to go forward," O'Neill said.
"The diocese will spend any amount of money it needs to prevent
the truth from coming out; that's evident by the efforts they
went to in connection with this case."
Although the diocese has confirmed allegations of rape
or sexual abuse by numerous priests through the years and removed
them from ministry, Mercure is the only Albany priest convicted
of sexual abuse of a minor. In 2011, he was sentenced to up to 25
years in prison in Massachusetts for raping two altar boys,
including the victim in the Vermont case, during skiing trips in
Berkshire County, Mass.
Rape allegations against Mercure became public in 2008
during an investigation by Warren County District Attorney Kathleen
Hogan, who determined New York's statute of limitations
prohibited prosecution and referred it to Massachusetts, where
Mercure could still be prosecuted.
Albany diocese spokesman Kenneth
Goldfarb said the decision "speaks for itself. ... The diocese
of Albany sought relief based on what it believed to be a
different interpretation of law as it applied to jurisdiction in
"We would only wish to again stress that sexual abuse of
a minor is a crime and an egregious sin, and that this Catholic
community is deeply concerned about the well-being of anyone who
has suffered abuse at anytime or anywhere," Goldfarb added. "The
Albany diocese long ago embraced its moral obligation to assist
individuals abused at any time by Albany diocese clergy, and we
again would welcome the opportunity to offer assistance in
Friday's ruling was prompted by a writ of mandamus filed
by the diocese. It argued the district court's ruling on
jurisdiction and the release of 40 years' worth of abuse records
was so egregious that it warranted an immediate, pretrial review
by the appeals panel. The appellate court, after reviewing the
ruling, agreed with the diocese.
The appellate panel said Sessions' analysis was
"Subjecting the diocese to suit and the resultant foray
into sensitive documents — investigations into allegations of
sexual abuse by its employees — when the case would be
time-barred if brought in New York ... constitutes 'exceptional
circumstances' warranting the 'extraordinary remedy' of a writ of
mandamus," the panel said.
The Albany diocese argued it has no legal ties to the
Burlington, Vt., diocese, and therefore cannot be sued in that
state for the actions of a rogue priest.
O'Neill argued the diocese's business records showed
ties between the neighboring dioceses, including documentation
that priests from Albany occasionally ministered at parishes in
Vermont under authorization from Bishop Howard
More than 560 pages of Mercure's personnel files were
turned over last year to the victim's attorney. Mercure has been
accused of raping, sexually abusing or exposing himself to at
least seven boys beginning in the early 1980s.