CHARLOTTE — Legal cases involving decades-old allegations of child sexual abuse against defendants including the Diocese of Charlotte moved forward in court in recent weeks, as North Carolina’s two-year “revival” period for historical abuse claims comes to an end on Dec. 31.
On Dec. 20, a panel of Superior Court judges declared unconstitutional part of a new law that temporarily suspended the state’s statute of limitations to allow adults who allege they were sexually abused as children to sue in civil court.
The provision is part of the 2019 SAFE Child Act and allowed for the filing of certain claims of abuse in 2020 or 2021, even if the statute of limitations had already expired. Claimants across North Carolina used the revival provision to file claims against alleged abusers and their employers, including the diocese and other churches, schools, YMCA, Boy Scouts, and a volunteer fire department.
But in lawsuits filed against a wrestling coach and a firefighter – and their employers – the panel of judges ruled 2-1 that the revival provision violates the state constitution’s “Law of the Land Clause.” The judges wrote that previous case law recognizes that the North Carolina Constitution gives defendants the right not to be sued after a certain period of time, and that the constitution bars the General Assembly from reopening the statute of limitations, even for “meritorious causes of action.”
The defendants’ attorneys argued it is unreasonable to try to mount a defense after a lengthy period when relevant evidence has been lost or destroyed over time, people and witnesses involved have died or otherwise become unavailable, and the memories of witnesses who are around have faded.
It is unclear what impact the ruling might have on other claims still pending in state courts, including those against the Charlotte diocese, because an appeal is expected.
In separate rulings earlier this year, judges dismissed three historical abuse cases filed against the diocese in Mecklenburg County Superior Court, after legal arguments cited a variety of flaws in the cases, in addition to the constitutionality question. All are now on appeal.
In total, seven lawsuits involving historical abuse claims have been filed against the Charlotte diocese during the two-year revival period, from January 2020 through Dec. 28, 2021. That includes the three cases now dismissed and four still in early stages.
The lawsuits accuse six clergy members of abuse ranging from 20 to 40 years ago. They also allege the diocese was negligent in its supervision of the clergy at the time. All of the accused clergy were long ago removed permanently from ministry, except one: Jesuit Father Francis P. Gillespie. Allegations against Gillespie of abuse in the late 1990s at Our Lady of the Assumption Parish were made known by the claimant only recently, and Gillespie – who was most recently assigned to the Diocese of Raleigh – was immediately placed on administrative leave pending investigation. Details are available online at www.bit.ly/32od5NT.
The other five accused in the revival lawsuits include Charlotte diocesan priests Donald Baker, Richard Farwell and Joseph Kelleher (deceased), and two others assigned to work here by their supervising religious orders: Father Robert Yurgel (New Jersey-based Capuchin Franciscans) and lay missionary Al Behm (Ohio-based Glenmary Home Missioners).
All five were included on the diocese’s accountability website published in 2019. The known allegations against them also were reported to police – and to the public. Farwell pleaded no contest to related criminal charges, while Yurgel pleaded guilty and served time in prison. Criminal charges were dropped in 2014 against Kelleher, who was ailing and died soon afterwards. Criminal charges were not filed in the other cases.
“We continue to pray for victims of child sexual abuse and their families and have zero tolerance for abuse in the Charlotte diocese,” said Monsignor Patrick Winslow, vicar general and chancellor of the diocese. “It is also important to understand that we’re dealing with abuse allegations from many years ago. We have strict child protections in place today to guard against abuse in all of the diocese’s churches, schools and facilities.”
“At the same time,’’ Winslow said, “it is critical that we hear from people who were abused by clergy – no matter when it may have occurred. It is equally important that appropriate resolutions are determined under the law so there can be healing for victims and for the Church.”
Winslow stressed that the diocese reports allegations of child sexual abuse to local law enforcement, and immediately removes from ministry any active clergy pending investigation. Since the U.S. bishops’ Charter for the Protection of Children and Young People was adopted in 2002, the diocese has spent more than $293,000 for counseling and medical treatment for victims of sexual abuse by clergy. It also has invested nearly $1.7 million in its Safe Environment training and background checks – required for all employees and volunteers to help them recognize signs of abuse and follow best practices in protecting children.
To promote healing and demonstrate transparency, the Diocese of Charlotte in 2019 commissioned an independent review of its personnel and other historical files to search for and publish credible allegations of sex abuse by clergy. The diocese published its accountability website, www.accountability.charlottediocese.org, with abuse statistics, timetables and resources – as well as a list of clergy members who had been credibly accused of child sexual abuse since the diocese was founded in 1972.
The website also included a separate list of clergy who had served in the Charlotte diocese without reported incident but were later accused of abuse elsewhere.
Monsignor Winslow said the diocese is researching allegations made in the lawsuits and will update its accountability website where appropriate. For example, he said, lay missionary Al Behm is included on the list of clergy accused of abuse elsewhere but would be moved to the Charlotte list if local allegations made known in a February 2021 lawsuit are found to be credible.
North Carolina was the first state in the South to pass a revival provision, also known as a “lookback window.” A number of states have adopted similar legislation, in some cases prompting dozens or hundreds of lawsuits.
North Carolina’s SAFE Child Act aims to better protect children from sexual abuse in communities and online. Its provisions include changes to North Carolina mandatory reporting requirements, new criminal penalties for abusers, prohibitions from predatory online behavior, and extended timeframes under which victims can bring criminal and civil claims for sexual abuse.
But it is the legislation’s revival provision that is at issue in most cases filed during the two-year revival period.
“Statutes of limitation are deeply embedded in our legal system to help ensure claims are brought in a timely way and that the best evidence can be presented to a jury,” said Josh Davey, an attorney representing the diocese. “It is really difficult for any employer to go back decades to interpret records, if any exist, and in many cases there are no witnesses available to help pull together a picture of what happened and whether the employer was involved at all.”
Beyond the constitutional question, a judge in October dismissed one of the lawsuits against the diocese for negligence related to alleged abuse in the early 1980s by Behm, the lay missionary assigned to work in western North Carolina by his religious order.
Mecklenburg County Superior Court Judge Daniel Kuehnert found the revival provision allows for claims against alleged abusers, but does not open the door to claims of negligence against abusers’ employers.
In his ruling, Kuehnert wrote the SAFE Child Act “appears to this court to be narrow and limited to claims against perpetrators of child sexual abuse,” and that claims against the diocese for negligent supervision “do not fall within the scope” of the law. The case is on appeal.
The other two suits dismissed against the diocese, in January 2021, also were cases in Mecklenburg County Superior Court. Both claims of negligence by the diocese – for alleged abuse by priests Farwell and Kelleher – had been previously decided in court. Both were dismissed in 2014 because the statute of limitations had expired, but the cases were refiled under the revival provision. In January, attorney Davey argued the revival provision does not extend to cases in which a final judgment had previously been rendered in court. Those cases are also on appeal.
— Catholic News Herald