Sexual Misconduct by Clergy, Lay Employees, and Volunteers – Part 6

An Arizona appeals court refused to allow an adult who had been sexually molested as a child by his pastor to sue his church after the statute of limitations expired.

Church Law and Tax2004-03-01

Sexual misconduct by clergy, lay employees, and volunteers – Part 6

Key point 10-16.4. The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s 18th birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.
Negligence as a Basis for Liability

* An Arizona appeals court refused to allow an adult who had been sexually molested as a child by his pastor to sue his church after the statute of limitations expired, and rejected the victim’s defense that the statute of limitations should be suspended because he was suffering from “cognitive avoidance.” A Catholic priest was in charge of activities involving young people. He invited a 12-year-old boy (“Eric”) to visit a place in the desert where he often took children on unsupervised trips. The priest took youngsters there ostensibly to help him improve the property so that handicapped children could use it for recreation. Eric’s parents were happy to have him accompany the priest on these trips. The priest liked to walk around in the nude on these trips, and go “skinny dipping,” and Eric reported this to his parents at the time. Eric’s parents discussed the priest’s behavior and concluded that he was just a “rugged outdoorsman” and that his nudity was harmless. On Eric’s last trip with the priest he was accompanied by a friend. The priest took Eric and his friend to a pond and induced them to take their clothes off to go swimming. Under the pretext of finding out whether Eric was circumcised, the priest persuaded Eric to take down his shorts. He then “inspected” him. Late that night, after all three had gone to bed in sleeping bags, the priest sexually molested Eric. Eric did not report these incidents to anyone. Five years later, when Eric was 17, the priest was arrested for sexually molesting two other boys. Concerned for their son, his parents asked Eric whether the priest had molested him. Eric said no.

Eric claimed that he had “repressed” all memory of the priest’s acts of molestation, and that his memory was “recovered” while sitting in a bar watching news coverage of the verdict in the O.J. Simpson murder trial. The conviction that “a bad guy got off” triggered the recollection that he himself had been grievously wronged and that the bad guy had somehow gotten away. He “blurted out” that he had been sexually molested by a priest. Following his recollection of the molestation, Eric became a severe drug abuser, and on one occasion almost killed himself with an overdose. He did not reveal the molestation to his family until nearly two years after the purported recovery of his memory.

Eric sued the priest, and his former church. A trial court threw out the case on the ground that it had been filed after the statute of limitations for such claims had expired. The court rejected Eric’s defense that the statute of limitations should have been “suspended” because of his “cognitive avoidance” of the priest’s molestation. The trial court distinguished cognitive avoidance from “dissociative amnesia.” Dissociative amnesia is an inability to remember based on an involuntary blocking of memory so that the memory remains stored but inaccessible to the conscious mind. By contrast, a conscious and voluntary effort to avoid thinking about a remembered event is “cognitive avoidance.” With cognitive avoidance, a person may avoid talking about a memory because he is uncomfortable doing so. But, “choosing not to think about an event is not an unconscious psychological process but a deliberate thought process.” The trial court concluded that Eric’s memories were not inaccessible, or lost, and either were or could have been retrieved before the expiration of the statute of limitations. Eric appealed.

A state appeals court affirmed the trial court’s dismissal of the case. On appeal, Eric argued that a pedophile should not be rewarded by the protection of the statute of limitations when he did something so outrageous that Eric did not want to remember it. The court countered, “Fundamental policy behind statutes of limitation does not, however, equate a plaintiff who deliberately avoids a memory to a plaintiff who is in a blamelessly uninformed state. Our supreme court has determined that tolling the statute of limitations is an appropriate policy for those whose memories are inaccessible but not for those who can remember. Having found, as a matter of fact, that Eric was in the latter category, the trial court was legally compelled to find that the statute had not been tolled.”

The court pointed to the testimony of a psychologist who testified at trial that the best predictors for developing amnesia for incidents of abuse are “(1) young age of onset, (2) multiple incidents of abuse, and (3) severity of abuse.” The psychologist concluded that Eric did not fit this profile. She also testified that only 15% to 20% of victims have full amnesia after childhood sexual abuse and that, in general, the majority of people retain their memories for traumatic events. Thus, the statistical likelihood that Eric had experienced dissociative amnesia was not high.

Application. This case demonstrates the difficulty that child abuse victims have in “tolling” (suspending) the statute of limitations because of allegedly “repressed memories.” Victims like Eric who voluntarily avoid thinking about incidents of abuse are not entitled to file lawsuits after the statute of limitations has expired. On the other hand, the statute of limitations may be suspended for child abuse victims who experience dissociative amnesia, which is an involuntary loss of memory regarding the abuse. However, as the court pointed out, dissociative amnesia is rare, and when it does occur it generally is associated with victims who were young children at the time of the abuse and who experienced severe and repeated acts of abuse. Watson v. Roman Catholic Church, 64 P.3d 195 (Ariz. App. 2003).

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