PROVIDENCE (RI)
Providence Journal [Providence RI]
February 2, 2023
By Tom Mooney
The state Supreme Court heard oral arguments Wednesday on whether the Diocese of Providence as an institution can be defined as a “perpetrator” of child sexual abuse under a relatively new state law, and thus possibly sued by alleged victims of accused pedophile priests from decades ago.
Rhode Island lawmakers in 2019 extended the deadline for victims of childhood sexual abuse to file lawsuits against those who abused them, even if the abuse took place outside of the statute of limitations.
The new law extended the deadline from seven years to 35 years after the victim’s 18th birthday. But it allowed a retroactive extension of that deadline only if they were suing a “perpetrator” — not a “non-perpetrator.”
In a test case of the new law, Superior Court Judge Netti C. Vogel in 2020 dismissed three priest-abuse lawsuits against the diocese and its leaders, finding that the law defined “perpetrator” as the person who committed the abuse.
“Non-perpetrators” were those who may have caused or contributed to the abuse – maybe even committed a crime in doing so – but they couldn’t be sued retroactively under the law, Vogel determined.
Victims claim previous ruling was too ambiguous
The three alleged victims appealed to the high court, where their lawyer, Timothy Conlon, faced tough questions by the justices Wednesday.
(Justice Erin Lynch Prata, a former state senator who joined the bench in 2021, recused herself from the discussion.)
Asked to explain where Vogel had erred in her previous ruling, Conlon said she had erroneously ruled that the terms perpetrator and non-perpetrator “were unambiguous,” ignored a previous state Supreme Court ruling (Kelly vs. Marcantonio) that found those who aided and abetted child sexual abuse could be defined as perpetrators, and disregarded the “legislative intent” of the law, which was ”to expand access to the court for victims,” not narrow it.
“Kelly was extremely clear,” Conlon argued.
“No, it was not,” fired back Justice Maureen McKenna Goldberg, who repeatedly challenged Conlon’s definition of aiding and abetting.
The aiding and abetting charge requires the person in question to be present at the time of the assault and to “actually assist in the actual criminal act,” she said.
Noting she had been a state judge for more than 30 years, Goldberg said she was well versed in the definition and “aiding and abetting is a specific criminal act. And you have to know it’s happening.”
“When you aid a perpetrator by providing that perpetrator access to a child, I would submit … you know full well what the consequences are,” replied Conlon. “You are feeding someone a child.”
Howard Merten, a lawyer for the diocese and the bishops named in the lawsuits, took only a few minutes to make his case, which went largely unchallenged by the four justices.
He said Vogel’s decision was the correct reading of the law, which clearly defines a perpetrator and a non-perpetrator.
“I don’t think the statute is ambiguous,” he said. “I think it’s pretty clear.” And that interpretation “makes clear the defendants here are not perpetrators.”
If the law was meant to be ambiguous, as Conlon seemed to be arguing, it could lead to “absurd results” with perpetrator and non-perpetrator being defined randomly, said Merten.
Asked by Chief Justice Paul A. Suttell how he would explain how perpetrator was defined in the previous Kelly case, Merten said whatever its previous interpretation, “this statute now applies.”
The court isn’t expected to rule on the appeal for several months.
Original bill was meant to hold church leaders accountable
Rep. Carol McEntee, D-South Kingstown, a lead sponsor of the 2019 state law, listened with concern to the hour-long debate from the courtroom gallery.
McEntee said it was her intention when she sponsored the 2019 legislation that church leaders “be treated as criminals” and be subject to civil lawsuits.
“When you have a known perpetrator and you ship him to another parish, knowing that he has a desire for children, and you send him to an unknowing parish where there are children, how can you not know this is going to happen again?”
The legislation was amended to make a distinction between perpetrator and non-perpetrator after heavy lobbying from the diocese, she said.
McEntee said she plans to submit new legislation this session. “That’s why I’m here, to see what the problems are, so I can fix them.”
Contact Tom Mooney at: tmooney@providencejournal.com