Burden of Proof Now Falls on Victims in Sex Abuse Civil Suits

Without criminal convictions, the work of lawyers representing hundreds of people who claim they are the victims of childhood sexual abuse by Roman Catholic priests just got a little tougher.

“That is going to increase the burden on the [victims] because they, not the state, are going to be the ones who will have to actually prove” that the molestations occurred, said Georgene Vairo, a Loyola Law School professor.

The U.S. Supreme Court on Thursday barred criminal prosecutions in many older sexual abuse cases, forcing prosecutors to reevaluate and throw out as many as 800 past and current cases statewide. In Los Angeles County, at least 10 of 11 pending criminal prosecutions involving priests will be dismissed.

Although the decision has no direct impact on civil cases, it limits the legal recourse of victims to monetary damages. Lawyers have estimated they will file more than 500 claims this year in California courts alleging sexual abuse by priests.

“The war will move to the civil courts,” said Irvine attorney Katherine K. Freberg, who represents more than 100 clients allegedly molested by priests.

The responsibility “falls on us as the sole remaining road to justice for the survivors,” said Larry Drivon, a Stockton lawyer representing more than 300 alleged victims. He predicted the ruling could ultimately increase the amount of money awarded by juries if the church does not settle cases before trial.

“I would think when we get to the issue of really talking about settlement, the church is going to have to deal with a public that has been outraged yet again, and these cases may have an enhanced value in front of a jury,” Drivon said.

Drivon said the cases are “not that different than what happened in the O.J. Simpson case.” A Santa Monica jury ordered Simpson to pay $33.5 million in civil damages after he was acquitted of murder.

Yet a criminal conviction makes a civil case “infinitely easier” for plaintiffs to win, said Daniel M. Petrocelli, who represented the family of Simpson’s slain ex-wife in the civil trial.

“We would have monitored all the criminal trials to learn of new evidence and other victims. We would have had the satisfaction of deposing priests while in prison,” Freberg said.

Civil lawyers have always had a bigger burden than criminal prosecutors, Freberg said. “We are going after not only the abuse, but what the church knew about the abuse,” she said.

Although the Supreme Court’s ruling on criminal cases does not technically apply, Vairo said defense lawyers may use it to urge trial judges to throw out civil cases.

“They could argue that similar reasoning should apply,” the professor said. In fact, attorney J. Michael Hennigan, who represents the Archdiocese of Los Angeles, said Thursday that he may do just that.

Lawyers suing the church have lost a powerful ally in law enforcement. Police and prosecutors had conducted parallel investigations of many of the same allegations.

Los Angeles County Dist. Atty. Steve Cooley led the fight to gain access to personnel files maintained by the church on accused priests, documents that plaintiffs’ lawyers also are seeking through the civil process.

After months of litigation, a retired judge, Thomas Nuss, has said he will rule next month on whether the Archdiocese of Los Angeles must open its confidential files to prosecutors.

Lawyers for the archdiocese have argued that any communications between bishops and priests -- sought by criminal prosecutors and plaintiffs’ lawyers -- are privileged and that their surrender would violate the 1st Amendment.

But in the plus column for civil lawyers is the fact that with the possibility of criminal prosecution eliminated, accused priests can no longer assert their right against self-incrimination in civil depositions.

“We can force them to answer questions but we cannot force them to tell the truth,” Drivon said. “I would certainly expect those with a sanctified set of morals, as those ordained as priests, to tell the truth.”

Proving to a jury that an accused priest lied under oath could significantly increase the amount of money awarded to plaintiffs, Drivon said, citing a $30-million jury verdict he won in a priest molestation case in Stockton in 1998. A judge later reduced the verdict to $13 million.

Many lawyers say their clients were devastated by Thursday’s ruling, especially because of the prospective return of hundreds of child molesters to their communities without any warning system for others.

“The perception is that they are getting off scot-free,” said Venus Soltan, who has filed 30 suits alleging sexual abuse by priests and expects to file at least 20 more. “They don’t have to be reported as pedophiles. They can live anywhere. They can work anywhere.... Without convictions, there is no way to track these people.”

Raymond P. Boucher, who works with Drivon, said he believes Thursday’s ruling may encourage more victims to come forward and file civil lawsuits.

“Even if we can’t put them in prison,” he said, “we can follow them and make sure they never do it again.”