Legal loophole allows Texas diocese to escape liability for abuse: The Church of England Newspaper, June 25, 2010 p 7.

The Rev James Tucker, circa 1968

First published in The Church of England Newspaper.

The Episcopal Diocese of Texas has escaped legal and financial liability for the child abuse committed by a former priest after the US Court of Appeal held that the state’s five year statute of limitations on sexual assault shielded the diocese from culpability.

As of 2009, the Roman Catholic Church in the United States has paid out more than $2.6 billion in abuse-related costs since 1950 the US Conference of Roman Catholic Bishops reported last year.  At least six catholic US dioceses have been forced into bankruptcy by judgments or the threat of judgments from abuse victims.

The Episcopal Church has so far escaped the massive financial and legal liability stemming from clergy abuse cases, however, lawyers in Texas had hoped to breach the church’s defences in the case of John Doe v. St Stephens Episcopal School and the Diocese of Texas.

On June 18, the Fifth US Circuit Court of Appeals upheld a lower court ruling dismissing a lawsuit filed by three men that charged the church-affiliated boy’s boarding school and the diocese with breach of fiduciary duty, civil conspiracy, fraud and fraud concealment, negligence and negligent misrepresentation, and vicarious liability as time-barred.

The appeals court held that the three men, former school boys designated as John Doe I, John Doe II and John Doe III, could not hold the school and the diocese responsible for the actions of the school chaplain as more than five years had passed since the abuse took place.

The court stated that the Rev. James Lydell Tucker “sexually abused Plaintiffs between 1964 and 1968 while they were students at St. Stephen’s. At the time, Tucker was the chaplain and a member of the faculty at the school.”

The court further stated that in 1968 two of the boys “notified then-headmaster Dr. Allen Becker of the abuse. He instructed them not to tell anyone, including their parents.”

In 2006 the Diocese of Texas began an investigation into Tucker’s actions after the plaintiffs made their story known to classmates at a school reunion.  In 2008 the three men filed lawsuits seeking damages against the school and the diocese for the trauma they suffered at the hands of Fr. Tucker.

Under Texas law the statute of limitations for personal injury in sexual assault cases is five years after the crime takes place.  However, if the victim is a child, the five year period begins when the child turns eighteen.

In its defence, the Diocese argued that all of the plaintiffs had turned 18 by 1969 and the statute of limitations prevented suit after 1974.  The three plaintiffs responded that the state’s delayed discovery rule should apply.  It holds that the statute of limitations should not begin to run when “the alleged wrongful act and resulting injury are inherently undiscoverable at the time they occurred” but only begin when the abuse “may be objectively verified” should apply in this case.

The three plaintiffs argued that this rule should apply because their “suppression and repression” of their ordeal prevented them from understanding the extent and ramifications of the abuse.

However, the court found that all three men had mentioned to other people at least five years prior to their filing of a lawsuit that they had been “molested and that they have been aware, at least periodically, of the molestation since they turned eighteen.”

“Although Plaintiffs present affidavits from a psychiatrist asserting they have suppressed and repressed the abuse, we find the facts of this case insufficient to show that the sexual abuse was inherently undiscoverable,” the courts held, adding that while the three men did “engage in psychological coping mechanisms,” these mechanisms did not completely “block all memory of the abuse, as demonstrated by Plaintiffs’ comments about the abuse to others.”

The appeals court upheld the lower court’s judgment order dismissing the lawsuit against the diocese and school.