Tag: Public Lists

PUBLIC SEX OFFENDER LISTS – PART 2

Because the Texas Civil Appeals Court issued two separate opinions from the same case, and because the case may generate some interest, two reports on the same case seemed most efficient.

Texas by statute limits lawsuits that may involve “exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. §27.003(a). In order to present a claim of defamation allowable under the statute, a plaintiff must present evidence that supports the elements of their claim sufficient to present a viable claim.

In Diocese of Lubbock v Guerrero, Slip Op. (Tex. Civ. App. 7th, 2019), in order to present a defamation claim sufficient to overcome the protection of a free speech claim, the Claimant Guerrero had to prove there was an exercise of free speech. Naming him on the publicly disseminated list of sex offenders “credibly accused” by the diocese qualified as free speech. The list was a “communication.” The list addressed a matter of “public concern.” The elements and proof of the defamation claim was summarized in our prior post on this case and the appellate court deemed it sufficient to state a cause of action. The diocese admitted it had no evidence the Claimant sexually assaulted someone under the age of 18 even though the Claimant was listed among those who allegedly had done so. The allegation against Claimant was that he engaged in sexual misconduct with an adult. The reason the adult was classified as a victim, such as inability to consent or other possible claims, was not recited in the opinion. While Claimant was allowed to pursue his defamation claim at the trial court level, the appellate court also dismissed the claim of intentional infliction of emotional distress. Claimant had no evidence the diocese intended to emotionally harm him. The diocese defined “minor” as anyone not capable of giving consent. Sanctions and attorney fees might be awarded against Claimant on the emotional distress claim on remand to the trial court.

While the cost of the conspiracy of silence, and possibly tolerance, was high, that does not automatically mean that transparency would not also be costly. Most likely, churches will chose to settle with credible victims and litigate with alleged perpetrators. A few such trials might be the next step, and cost, of transparency.

PUBLIC LISTS OF SEXUAL OFFENDERS – Pt. 1

The Roman Catholic Church set off on a bold path when it decided to publicly list by name the persons it determined where “credibly” accused of sexual misconduct while holding church office. Such public accusations needed to be right and true in order to avoid defamation claims by alleged perpetrators.  Those lawsuits have started.

In the case of In Re Diocese of Lubbock, Slip Op. (Tex. Civ. App. 7th, 2019), the trial court refused to dismiss the defamation claim by a former deacon listed publicly by the diocese as a sex offender. However, while lumped in with others accused of sexual misconduct with children, the claim against the former deacon was sexual misconduct with an adult. The appellate court, considering an extra-ordinary writ challenging the action of the trial court, affirmed the trial court. The appellate court at length recited that internal accusation by a church of a member in accord with the church disciplinary religious doctrine could not be considered by a court because it was shielded by the Ecclesiastical Abstention Doctrine. But, once the accusation was made public by the church, and not merely leaked inadvertently or without authorization, the Ecclesiastical Abstention Doctrine no longer applied. The case was remanded for further proceedings.

It would be interesting to know if denominations or churches that have decided to use publicly disclosed lists of “credibly accused” sexual offenders did so calculating the potential for additional claims. If so, the risk analysis may have led to them to believe the risk was less than the cost of lack of transparency. Truth is a defense in a defamation case but “credibly accused” may or may not be enough. Most denominations and churches issuing such lists have done so only after qualified counsel consumed many hours of billable time to assess the claims. The reported case may put that to the test.