CODE WORDS CASES

Setting aside the inflammatory nature of sexual child abuse cases, many of the cases considered by courts in the current era are old. Some are regarding claims that exceed even generous statutes of limitations by decades. Statutes of limitations were generally good policy because cases become stale, not just because of the passage of time, but because of the passage of lives and memories. To circumvent the loss of lives-in-being that could have been witnesses in an earlier time, as well sometimes the loss of memories of third parties, in child sexual abuse cases against churches there is often a search for conspiracy and cover up.

In John Doe 122 v Marianist Province, Opinion (Mo. App. 2019), the trial court granted summary judgment to the religious order and church school. The appellate court affirmed. The sexual abuse was alleged to have occurred in 1971. The victim’s memory was refreshed in 2012 by a letter from the religious order during an investigation of sexual abuse allegations. The trial court granted summary judgment on a negligent supervision claim because the claim required the court to engage in interpretation of religious doctrine, policy and church administration contrary to the Ecclesiastical Abstention Doctrine. The trial court granted summary judgment on the allegation the religious order was on notice of their member’s sexual child abuse prior to the abuse of the Plaintiff. The Plaintiff’s only proof after so many decades that the religious order was on notice was that “code words” in the member’s personnel file, which did not directly mention sexual conduct, revealed there was notice. The alleged “code words” were “observance of vows,” deficiencies in “religious life,” and issues regarding attendance at worship services and prayer. Plaintiff’s expert witness, upon review of thousands of personnel files in the same denomination over thirty years, concluded “code words” were the common method of revealing sexual misconduct without making any direct statement. However, the expert admitted the opinion was a belief and that in any particular case the words might not have been code at all. The expert could not state that these particular words were, in fact, “code words.” The court held the opinion was too speculative to prove the allegation. The dissent thought the expert’s experience was sufficient to require that a trier of fact, such as a jury, determine whether the belief was reasonable or speculative that the words constituted “code words.” Apparently, the writer(s) of the words were no longer available. The trial court declined to rule whether the claim was barred by the statute of limitations.

It is simply a fact that the some injustices will not be addressed by temporal courts because cases do become stale. Reliance on opinions that otherwise innocent words actually mean something sinister is dangerous unless there is evidence other than the opinion. In prosecutions of gang members, for example, lexicons of “code words” are developed. No similar device seems to have been available in this case. The reason, too, that even innocent words may be viewed with suspicion is no doubt because of a “conspiracy of silence.” Churches and denominations should take heed.

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