The statutes of limitations are intended to prevent stale claims from being litigated. The idea is that stale claims are unfair to litigants because memories fade, witnesses die, and standards change. Such statutes are good policy. However, if a wrongdoer decides to hide the wrongdoing, and especially if the wrongdoer succeeds, then the statute of limitations does not begin to run until the victim or injured party knows or should have known through reasonable efforts. This is also a reasonable policy because the wrongdoing has not ended until the conspiracy of silence ends.
In Rice v Diocese of Altoona – Johnstown, 2019 PA Super 186, (PA Supp. 2019), the trial court reluctantly dismissed claims of fraud, constructive fraud and civil conspiracy because the alleged child molestation occurred in the 1970s and 1980s. The appellate court reversed holding that whether an alleged effort to hide the wrongdoing occurred, and thus prevented tolling of the statute of limitations, was a question of fact for the jury. The plaintiff alleged she discovered the alleged conspiracy to hide the molestation in grand jury testimony made public in 2016 and immediately filed suit. The plaintiff alleged the last act of the conspiracy was in 2016 revealed or further perpetuated in the grand jury testimony of 2016.
Limitations discovery rules are not new and the response to these types of rulings has been a more aggressive public disclosure of “credible accusations” by various denominations and churches. The risk of a defamation claim has been deemed less than further untolled limitations as to molestation claims. Confession may be both good for the soul and good litigation risk management.
Private internal investigations and hearings held by churches in governance of the conduct of their members that are not made public, although the outcome in some limited respect might be made public, have historically been shielded by the Ecclesiastical Abstention Doctrine. State law tort claims and state and federal employment laws have been restricted from intrusion in church governance. The manner in which the hearing or investigation is conducted, as long as its internal, is usually unknown by anyone other than the participants.
In Williams v Kingdom Hall of Jehovah’s Witnesses, Slip Op., (Utah App. 2019), the alleged victim of sexual misconduct sued the church alleging that the hearing conducted about her conduct was tortious because of the manner in which it was conducted. The hearing was conducted to determine if she was a consenting participant in the sexual event. At the time of the event she was a minor. She attended the hearing with her parents. She alleged a recording (apparently audio only) of several hours duration, surreptitiously made and then produced to the church leadership by the alleged wrongdoer, was played at the hearing. During the church hearing, though she admitted she was free to leave, the Plaintiff alleged she cried and protested the playing of the recording. She claimed she could not leave the hearing because she feared she would be summarily “disfellowshipped.” At various points in the recording, playback was paused so she could be questioned about her consent. She claimed during the church hearing she was “crying and physically quivering.” The trial court dismissed the lawsuit and the appellate court affirmed.
The Utah appellate court seemed to rely on the Lemon test. Lemon v Kurtzman, 403 US 602, 612 (1971). “This test requires the government action “(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.” Id. (quotation simplified).” The third element of the test was dispositive to the Utah appellate court. The Utah appellate court characterized the Plaintiff’s claim as asking “the factfinder to interpret the “outrageousness” of the Church’s conduct in investigating her alleged sins.”
If the Plaintiff was required to be a witness against the alleged wrongdoer in a criminal or civil proceeding, the Plaintiff would have been cross–examined. The recording would probably have been made part of the public record even if the Plaintiff was not directly confronted with the contents of the recording. In a civil tort proceeding, there is less doubt about whether the victim would have been cross–examined using the recording. The recording was reportedly several hours in length. Thus, while the conduct of the internal church hearing might seem harsh, it might be no different than either a criminal court or civil court proceeding had there been either or both.
Internal church investigations will not typically be reviewed by courts under any theory as long as there is no public revelation of the hearing or investigation. The outcome should be carefully reported to congregations. Church leaders are typically unpaid non-professionals that need to be educated about such matters in advance. This may include their spouses. A church may wish to engage counsel to help make decisions about public disclosures. Public disclosures are those made available to non-members. Churches that do not have non-public worship services, for example, should not be reporting such things at worship services.
Someday, a qualified sociologist will study the last 60 years and explain the reluctance of the church to see and deal with sexual misconduct. Possibly a clinical, and secular, autopsy of the phenomenon will disclose cause and lead to a cure or prevention for future generations. Part of the problem such a study will have to overcome will be the bias of hindsight. Of course, the problem was not just in the church, as the case below makes clear. But, the church was the place the blindness was least expected.
In John Does v Boy Scouts of America and Church of Jesus Christ of Latter Day Saints, Memorandum and Order, (D. Idaho, 2019), the federal trial court as trial loomed ruled upon motions in limine. Such motions were filed by the Boy Scouts and the church to exclude the files of the Boy Scouts regarding volunteers and employees against which charges of sexual misconduct were considered during the last several decades. Some of the charges were investigated by the Boy Scouts but the lawsuit may hinge on whether the response to the charges was adequate or appropriate. The Boy Scouts urged the files should be excluded from evidence because they contained hearsay and were not official governmental investigations. The church argued the files should be excluded because the church did not know of the existence of the files. Of course, the ignorance defense of the church, a type of innocence defense, aids the Plaintiffs in their quest to prove the Boy Scouts obscured or hid the problem of sexual predators in their midst for decades. Also, the files may arguably by their numbers indicate the church had to know, too. The trial court overruled the motions. While that does not mean each file or document within each will be admitted in evidence, it does mean more will be admitted than excluded all things being equal.
Mandatory child sexual misconduct reporting laws will be enforced, even if the enforcement is many years after the events alleged. Churches, schools, and youth services providers must train out of existence the idea that they get to decide internally or privately the issue of credibility, guilty, fault, or punishment. Pastors, especially, and church leaders that try to exercise discretion about whether to report or not because they are uncertain if allegations are “true” are inviting public censure at the least and jail time at the worst. In the middle are substantial money damages for which most churches do not have sufficient insurance coverage. If the question of reporting is really unclear, the church should immediately engage counsel to render an opinion about the necessity of reporting and risks of failing to do so.