Lawsuit against Diocese Allowed for Boy Who Says Priest Molested Him
By John Spano
Los Angeles Times
October 10, 1987
Extending the legal liability of California churches for the misdeeds of clergymen, an Orange County judge Friday allowed a trial for a 12-year-old boy who claims he was sexually molested by his Catholic priest.
The boy, 8 years old at the time, had been invited on an overnight Boy Scout outing by the priest, who sodomized him and told him to keep quiet or the devil would get him, the lawsuit alleged.
Father Robert Foley allegedly molested the boy, but the Roman Catholic Diocese of Orange is the main target in the lawsuit, in which more than $1.5 million in damages are sought to compensate the boy, named Michael, for debilitating psychological damage.
No criminal charges have been filed against Foley, and the priest is now thought to be out of the country.
"The decision represents a major step forward in holding professional clergy and their employers responsible for their wrongful acts," said Robert M. Aran, the boy's Sherman Oaks lawyer. "The potential liability of ecclesiastical employers is now a fact in California."
A rehearing will be requested, and an appeal is possible, according to diocese lawyer Daniel H. Clifford. Clifford said that Foley's alleged actions could not have been predicted by the church and that the diocese should not be held responsible.
Clifford also said the decision violates the First Amendment prohibition of church-state entanglements and suggested the court lacks the power "to tell the church what to do" in hiring its priests.
The decision by Orange County Superior Court Commissioner Eleanor M. Palk cited a celebrated Los Angeles "clergy malpractice" case last month that allowed the parents of a young man who committed suicide to sue his church counselors for negligence.
Palk found a legal claim in the alleged failure of the diocese to conduct "a reasonable inquiry into Foley's fitness to work closely with young parishioners." The diocese should have reviewed Foley's "psychological attitudes and emotional stability but did not do so," Palk ruled.
The opinion held that the church may be liable because Foley was supposed to be the moral adviser to children, he created a "close personal relationship" with the victim and hepersonally invited the child on the outing.
Foley, whom Aran described as in his mid-30s, was an associate pastor at St. Justin Martyr Catholic Church in Anaheim in 1983.
Among his other duties, Foley ran a Scout troop made up mostly of boys from the parish. The alleged incident occurred on an overnight outing at the church.
After subjecting the boy to an act of oral copulation, Foley allegedly ordered him to tell no one. Foley told the boy that if he did not obey, "the devil would get him," according to the lawsuit.
Michael's mother said the boy tried to tell her what happened. But she did not realize what he was saying.
"He told me he dreamt it," she said in an interview Friday. "I have since found out that that is the classic way for a child to tell, short of coming out and saying, 'This is what happened.' "
She said she thought it was a dream until Michael began changing. He stayed indoors and went through periods of depression and silent withdrawal.
She went to a school principal, then to local police. But because of her upbringing -- she described herself as devoutly religious -- she chose to deal only with the church. No criminal charges were filed. That was "very stupid, very very stupid of me," she said.
$2,400 in Counseling
Diocesan officials provided counseling for Michael, costing $2,400, and promised to remove Foley, according to the mother. But when Foley remained at the church, she decided to file the lawsuit, she said.
Msgr. Michael P. Driscoll of the diocese referred calls to church lawyers Friday.
In an earlier deposition in the case, Driscoll said Foley admitted the act.
"I believe that he admitted this accusation as true," Driscoll said in the deposition. "That he had done it. That he was very sorry. That it would never happen again."
Foley also is a defendant in the lawsuit, but Aran said he has not succeeded in finding him. Foley left the Diocese of Orange about six months after the incident. Aran believes that he may have returned to England, where he began in the priesthood.
Based on Negligence
Palk's decision suggests that any liability the church has must be based on negligence in screening candidates for positions of priests. She relied on the malpractice case, in which the suicide of Kenneth Nally allegedly occurred because of incompetent church counselors.
Clifford, lawyer for the diocese, said he doesn't believe that the Nally case should be related.
"In Nally, the counselors were acting within the course and scope of their employment when they negligently gave counsel to a suicidal young man," Clifford said.
"It has been our position that Foley was not acting within the course and scope of his employment when he molested Michael."
In allowing claims that the diocese failed to do enough in psychologically evaluating Foley as a potential employee working with youth, the opinion unfairly singles out the Catholic church, Clifford said.
It was the second time Aran had rewritten the lawsuit in an attempt to pass legal muster.
In April, Palk threw an earlier version out. At the time, she relied on an earlier appellate court decision holding the Diocese of Los Angeles blameless for the alleged misconduct of seven priests.
The case involved Rita Miller, who claimed that starting at age 16, she had sex repeatedly with the priests, became pregnant, and was sent secretly to the Philippines to give birth. The case held that there was no basis for holding the church responsible because the alleged misdeeds of the priests could not have been foreseen.
Palk, ruling only that the lawsuit is legally sufficient, made no decisions on the evidence in the case.
Michael remains in treatment, his mother said. "I can kind of see the changes," she said."He just withdraws. His whole mood changes. There's lots of self-doubt."
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