by F. Robert Radel, II., Esq. & Andrew A Labbe, Esq.
Will I know him when I see him? The answer has proved to be a resounding “no.” Until recently, the words “sexual predator” evoked the image of a dirty old man, dressed in a trench coat, lurking around an elementary school. Today, with ever increasing frequency, reality has demonstrated the fallacy of that image.
In reality, sexual predators occupy various positions within our local communities. They have been identified as youth ministers, day care workers, Boy Scout leaders, babysitters, camp counselors, photographers, social workers, Big Brothers, school bus drivers, and foster parents. Society has welcomed these individuals into its homes and trusted them with its children – since sexual predators occupy both genders as well.
In the media, sexual predators are commonly referred to as child molesters and pedophiles. However, not all child molesters are pedophiles and not all pedophiles are child molesters. A pedophile is an individual who prefers to have sex with children. If this person does not act out his or her sexual preference, the person is not characterized as a child molester.
Unlike pedophiles, a child molester may prefer to have sex with an adult, but for some reason determines to have sex with a child. Such reasons might include victim availability, curiosity, or an intent to hurt the loved one of a molested child.
The incidence of lawsuits filed against churches, schools, and youth groups by sexually molested victims in response to abuse perpetrated by sexual predators has increased dramatically over the past several years. Given this situation, it has become increasingly important for individuals involved in church, charitable, and educational endeavors, as well as attorneys and claims handlers (not to mention parents) to become familiar with the profile of a pedophile or sexual predator.
To that end, this article generally will identify common tendencies in their profile. More specifically, it will discuss their patterns of behavior and illustrate demonstrated techniques for gaining access to child victims. This information comprises the initial sections of the article and is derived from a behavioral analysis report prepared by Kenneth V. Lanning, formerly with the Federal Bureau of Investigations (FBI) Behavioral Sciences Unit. The article then addresses two important cases decided by the Florida Supreme Court regarding clergy sexual misconduct in conjunction with Church/State issues under the First Amendment. Finally, the article discusses recent developments regarding the applicability of statutes of limitation to claims of childhood sexual abuse.
PREDOMINANT CHARACTERISTICS OF A PEDOPHILE
In the behavioral analysis report referenced at the outset of this article, Kenneth Lanning describes four predominant characteristics of a pedophile. These consist of: (1) a long-term and persistent pattern of behavior; (2) having children as preferred sexual objects; (3) combined with well-developed techniques in obtaining victims; and (4) sexual fantasies focusing on children. Lanning points out that, although each indicator holds little significance standing alone, “their significance and weight comes as they are accumulated and come to form a pattern of behavior.”
- Long-Term and Persistent Pattern of Behavior
- Sexual Abuse in Background
Although most victims of child sexual abuse do not become offenders, research indicates that many offenders are themselves former victims. Therefore, it is important to investigate a person’s background by interviewing family members, friends, and acquaintances to determine if the individual has ever been the victim of sexual abuse and to ascertain the nature of the abuse as well, including the age of occurrence, relationship with the offender, acts performed, etc. Unfortunately, such in-depth background investigation is rarely possible when screening potential candidates for employment.
- Limited Social Contact as Teenagers
A deviant’s sexual preference for children usually begins in early adolescence. For that reason, during the teenage years, a pedophile may have exhibited little sexual interest in people of like age. Of course, as with several other indicators, that fact alone means little.
- Prior Arrests
In many cases, predators have been previously arrested for child molestation or sexual abuse. Such an arrest record holds major relevance if the arrest goes back many years or is repeated. Interestingly, however, Lanning notes that pedophiles may have arrest records that do not appear to involve sexual abuse. These arrests might include impersonating a police officer, writing bad checks, violating child labor laws, or other indications of an interest in children and, therefore, the need for further investigation. A thorough criminal background check is necessary to elicit such prior arrests and/or convictions.
- Frequent and Unexpected Moves
When a pedophile is identified, he or she is often “asked” to leave town by someone in authority, the parent of a victim, or an employer. This was, and still is, a common way to deal with the problem. Accordingly, pedophiles often demonstrate a pattern of living in one place for several years while gainfully employed, followed by a sudden move and change in jobs, with no apparent explanation. The pedophile usually will suggest a justification for the move but that justification is not likely to reflect the true circumstances. Most of the time, investigators will locate no “official record” to document what happened. Therefore, if possible, an investigator should attempt to contact neighbors, co-workers, and acquaintances located in the person’s prior city of residence. The individual’s pattern of relocation can sometimes be determined by examining a driver’s license record or searching the internet.
- Premature Military Separation
At times, records indicate that a pedophile was dishonorably discharged from the military for molesting children. However, it is far more common for such an individual to be prematurely separated from the military with no specific reasons given or available for the separation. Like most organizations, the military frequently was interested in eliminating the presence of pedophiles rather than prosecuting them.
- Multiple Victims
Most of the time, pedophiles have victimized more than one child. Therefore, if only one victim is known and there is reason to believe that the sexual predator is a pedophile, it is more than likely that other victims exist who will come forward on their own or after questioning by law enforcement or investigating authorities.
- Planned, Repeated, or High-Risk Attempts
According to Lanning, “[b]old and repeated attempts to obtain children that have been carried out in a cunning and skillful manner” is a strong indicator that an individual is a pedophile. Oftentimes, the danger of being apprehended excites the pedophile, and as that individual becomes more successful at gaining access to children in different ways, he or she gains greater confidence in this skill and makes attempts of higher risk.
- Children as Preferred Sexual Objects
- “Over 25, Single, Never Married, Does Not Date”
Although these indicators mean nothing when considered alone, they bear significance when combined with other characteristics generated by the pedophile. Pedophiles often do not marry and have trouble performing sexually with adults, given their sexual preference for children. They also may have very little dating experience. Despite these limitations, a pedophile is still capable of engaging in sexual relations with an adult. For example, a pedophile may marry in order to gain continuous access to stepchildren and friends or acquaintances of children in the home.
- Lives Alone or with Parents
Obviously, the fact that a man or woman lives alone does not indicate that he or she is a pedophile. However, an individual who lives alone and possesses many of the other characteristics indicated by the Lanning study should raise suspicions.
- If Married, “Special” Relationship Exists with the Spouse
According to Lanning, male pedophiles who do marry often marry either “a strong, domineering woman or a weak, passive woman-child.” Either way, male pedophiles
most often marry women who do not have high sexual expectations or needs.
- Excessive Interest in Children
Although it is difficult to determine if substantial interest shown to a child or children is excessive, Lanning states that the old adage, “If it sounds too good to be true, maybe it is,” may apply to these subjects. Of course, this may be difficult to ascertain if the pedophile is employed in a position which primarily involves interaction with children, such as a youth counselor or child-care worker. Evidence that the individual spends a great deal of time with children outside of work may be more indicative of a problem.
- Young Friends and Associates
Many pedophiles frequently socialize with children and become involved in activities that interest or are directed at young people. They often spend substantial time at schools, arcades, malls, and other places that children frequent. Depending on the age and gender preference of the pedophile, their friends often number teenagers or those who are very young.
- Limited Peer Relationships
Most pedophiles have few close adult friends because they are unable to share the most important part of their lives (their sexual interest in children) with other adults. Frequently, however, if a pedophile maintains a close adult friendship, that friend may also be a pedophile since, as Lanning states, “[o]nly other pedophiles will validate their sexual behavior.” Again, speaking with neighbors, co-workers, and acquaintances may elicit important information about the pedophile’s social relationships.
- Age and Gender Preferences
According to the findings articulated in Lanning’s study, most pedophiles prefer children of a certain sex in a certain age range. Lanning explains that pedophiles attracted to toddlers are more likely to molest boys and girls, indiscriminately, while pedophiles attracted to teenagers are more likely to molest either boys or girls exclusively. Notwithstanding that tendency, how old a child looks and acts is more important than the child’s actual age in most cases. Therefore, a pedophile who prefers children eight to ten years of age may target a thirteen-year-old child who looks and acts like a ten-year- old child. Nevertheless, most pedophiles do not molest or attempt to molest children who have gone through puberty.
- Refers to Children as “Clean,” “Pure,” or “Innocent”
Since pedophiles often have an idealistic view of children, it is common for a pedophile to refer to children by the adjectives noted above. On the other hand, some pedophiles refer to children as if they were “objects, projects, or possessions.” According to Lanning, relevant comments by pedophiles may include, “[t]his kid has low mileage” and “I’ve been working on this project for six months.”
- Well-Developed Techniques in Obtaining Victims
- Skilled at Identifying Vulnerable Victims
Although some pedophiles will observe a group of children for a short period of time and choose a target, many develop their skills in selecting victims through practice and experience. Most of the time, child victims come from a broken home or have been emotionally or physically neglected. Children who exhibit signs of loneliness and seek adult attention are frequent victims. Often, pedophiles target children of low-income families in which there may be only one parent present in the home, especially if there is no male figure present in the child’s life.
The internet provides another vehicle by which a predator can describe himself as a juvenile to another juvenile on the computer. The predator may then lure children to meet him via the internet.
- Identifies with Children
Most pedophiles identify with children better than they do with adults. Typically, they also know how to listen to children better than most other adults. As Lanning states, many pedophiles are described as “pied pipers” who attract children.
- Access to Children
In order to gain access to children, most pedophiles place themselves in situations where they can find the company of young people. Pedophiles may not only marry to gain access to children, as mentioned above, they may befriend a woman for the sole purpose of obtaining closer contact with her children as well. In addition, a pedophile may become employed in a position that is attended by the presence of many children (e.g., teacher, camp counselor, photographer, babysitter). The pedophile even may obtain a position where he or she can eventually specialize in dealing with children (minister, doctor, dentist, police officer, social worker). As Lanning observes, “the pedophile may also become a scout leader, Little League coach, and so on.” The incidence of sexual abuse by many pedophiles in these positions has generated a proliferation of lawsuits against institutions such as churches, schools, and charitable organizations that employ or sponsor these individuals.
- Activities with Children, Often Excluding Other Adults
Another characteristic commonly found among pedophiles is that they will attempt to place children in situations where no adults are present. For example, Lanning posits that on a scouting hike, a pedophile might suggest that the fathers go into town for a beer, while he “sacrifices” the social opportunity to stay behind with the boys. Equally common, a pedophile may “volunteer” to stay home and babysit or take the children to a Disney movie.
- Seduces Children with Attention, Affection, and Gifts
Lanning states that seducing children with attention, affection and gifts is the most common technique utilized by pedophiles. They seek to develop closeness and trust by paying attention, listening, and talking to children when others will not. Buying gifts such as toys, video games, and candy is also part of this “child seduction.” This process is often referred to as “grooming.” As noted above, children from single-parent, low-income families are often “easy” targets for pedophiles. Many of them have never owned significant material possessions and are easily swayed by gifts or trips to fun places they have never been. Like most children, they crave attention and enjoy fun-filled activities.
- Skilled at Manipulating Children
Most pedophiles are very skilled at manipulating people, especially children. As Lanning states, pedophiles use “seduction techniques, competition, peer pressure, child and group psychology, motivation techniques, threats and blackmail.” Once a pedophile succeeds in lowering the inhibitions of a child, he or she can more easily take advantage of that child. Frequently, a pedophile will offer children the opportunity to sleep over with the prospect that they will change their clothing at night, subjecting them to greater exposure. Sexual molestation at these “sleepovers” may take place with other children, or even the pedophile’s wife, situated close by. The presence of others not only provides the pedophile with cover (i.e., How could anything have happened when there were so many others present?), but also adds an element of danger to the seduction and abuse.
- Engages in Hobbies and Interests Appealing to Children
According to Lanning, this indicator must be “considered for evaluation only in connection with other indicators.” A pedophile may collect toys, have a strong interest in video games or perform as a clown to attract children. The pedophile also may pretend to be interested in activities, toys or games in which the target child shows interest.
- Shows Sexually Explicit Material to Children
It is common for pedophiles to present children with sexually explicit material in order to lower their inhibitions. As part of this seduction process, for example, a pedophile may send a sexually explicit picture to a child via the internet, allow the child to view pornographic magazines, or encourage the child to phone a dial-a-porn service.
- Sexual Fantasies Focusing on Children
- Youth-Oriented Decorations in House or Room
In Lanning’s findings, “[t]he homes of some pedophiles have been described as shrines to children or as miniature amusement parks.” Oftentimes, a pedophile’s house will contain games, toys, posters, and other objects to which children are attracted in the hopes of engaging children for significant amounts of time. The pedophile thereby conveys an image that he or she “is just a big kid.”
- Photographing Children
Although it is commonly thought that pedophiles are only interested in photographs of undressed or nude children, Lanning indicates that it is common for pedophiles to enjoy viewing photographs of children fully dressed as well. He cites the case of a pedophile who bragged that he attended a rock concert, taking thirty or forty rolls of film along in order to photograph young boys. After developing the film, the pedophile fantasized about having sex with them. It is not unusual for pedophiles to frequent playgrounds, child beauty pageants, or athletic contests involving young children in order to photograph the children. With the invention of digital cameras, it is now possible for a pedophile to store and view those pictures on a home computer.
- Collecting Child Pornography
According to Lanning, it is very common for pedophiles to own extensive collections of books, photographs, movies, magazines, toys, games, and other items that relate to children in a “sexual, scientific or social way.” While most child pornography is used by pedophiles outside the presence of children, the pedophile also will present that pornography to a child in order to lower the child’s inhibitions. Lanning explains that a child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having “fun” while participating in that very activity. Pedophiles frequently collect and organize much of their pornography on the computer. Lanning describes them as “compulsive record keepers” who will store and retrieve names and addresses of victims and other pedophiles. Computers are also used to communicate with other pedophiles so as to exchange child pornography or locate others (including children) who have similar interests.
REDUCING THE RISK AT A CHURCH, SCHOOL,
OR OTHER YOUTH ORGANIZATION
Sexual misconduct is not restricted to paid employees. Child predators can be volunteers as well. Given this commonality, current and future employees, as well as volunteers, should be required to complete an application. At a minimum, this application should include the following information: the applicant’s full name; the applicant’s full address; area of youth work sought or desired by the applicant; training/education in youth-related fields; description of youth work at churches or other organizations during the immediate past five years; description of church membership for the past five years; description of church/youth volunteer work for the last five years; prior felony convictions; prior criminal convictions for sexual abuse and molestation; and names and addresses of two or three references.
If the applicant is unknown by the church, school, or youth organization, the institution should confirm the person’s identity by obtaining photographic identification. Each organization in which the applicant listed prior experience should be contacted and the conversation memorialized. Further, each reference listed should be contacted and the conversation documented. When obtaining the application and collecting information, materials and communications received by the institution should remain strictly confidential. Child abuse reporting requirements should be provided to every staff member, whether the employee is compensated or not. Finally, a mandatory child sexual abuse prevention program for employees and volunteers should be offered.
Unfortunately, churches, schools, and youth organizations have become targets for child molesters, since they provide individuals with direct access to children. Therefore, the business or entity should consider implementing a policy that restricts eligibility for positions involving supervision of minors to employees, volunteers, or church members who have remained in good standing for a minimum period of time. If possible, married couples should be selected as youth leaders since this arrangement reduces the risk of sexual misconduct while providing children with positive role models.
Obviously, the organization should follow common sense guidelines as well. Adult males who work with youth should never be alone with a female member of the youth group. It is also advisable to have two adults present with any child or group of children.
The organization should be alert as well to “warning signs” or “complaints” that may indicate child molestation. Physical signs include irritation, pain, injury to the genital area, difficulty in urination, discomfort in a sitting position, torn or bloody undergarments, cuts or bruises, and nightmares. Behavioral signs include acting out, withdrawal from church activities and friends, sexual self-consciousness, anxiety when approaching a church playground or nursery area, nervous or hostile behavior toward an adult employee/volunteer, marked personality change, or an aloof or withdrawn appearance. Verbal signs may include expressed dislike or a particular youth worker, dislike for being alone with a certain youth worker, an indication that a youth worker plays too roughly with a child, and an indication that a particular youth worker likes to play alone with a child.
When an allegation of sexual misconduct is lodged, it should be investigated immediately. One person from the organization or congregation should be designated as spokesperson for the media, and a statement regarding the alleged sexual abuse should be prepared on behalf of the organization. The organization’s policies and established safeguards should then be explained. The statement should advise that the allegation is taken seriously and that the organization is responding in a timely and appropriate manner. The organization should never respond with “no comment.” Finally, the organization should never blame the alleged victim, minimize or deny the allegation; instead, the organization must react with concern and compassion by making counseling services available. Taking the proper safeguards to reduce the risk of sexual misconduct at a church, school, or other organization serves to protect both the innocence of the child and the reputation of the institution.
IMPORTANT RECENT DEVELOPMENTS IN THE AREA
OF CLERGY SEXUAL MISCONDUCT
- Separation of Church and State
Recent history has demonstrated a marked increase in the number of civil lawsuits filed against churches and other organizations as a result of sexual abuse. Often, the claims are premised on negligent hiring, retention, and supervision by the church, charity, or youth organization. Defense attorneys typically have moved to dismiss such claims based on the Free Exercise and Establishment Clauses of the First Amendment. Two such cases, each decided by the Florida Supreme Court, have resolved applicability of the contentious separation of Church and State question in the Sunshine State. They may be indicative of evolving case law in other jurisdictions as well. Both cases are summarized below.
- Malicki v. Doe
Jane Doe I and Jane Doe II (parishioners) jointly commenced an eight-count lawsuit against Father Jan Malicki (“Father Malicki”), St. David Catholic Church, and the Archdiocese of Miami (“Church Defendants”). In their complaint, the parishioners alleged that Father Malicki “fondled, molested, touched, abused, sexually assaulted and/or battered” the parishioners on the premises of St. David. Jane Doe I, who was a minor at the time of the incident, worked at St. David in exchange for her tuition to attend St. Thomas Catholic High School, while Jane Doe II was an adult parishioner who worked at the same parish. Both parishioners further alleged that they were employed under the direct control and supervision of Father Malicki and the Church Defendants.
The complaint delineated claims of negligent hiring, retention and supervision against the Church Defendants, based on Father Malicki’s conduct. Specifically, the complaint alleged that the Church Defendants “knew, or in the exercise of reasonable care, should have known, [that Malicki) was unsuited for teaching, counseling, spiritually guiding, supervising and leading employees and parishioners.” The parishioners also asserted that the Church Defendants negligently failed to make inquiries into Father Malicki’s background, qualifications, reputation, work history or criminal history, prior to employing him. Finally, the parishioners averred that the Church Defendants were negligent in placing them under Father Malicki’s supervision because they knew or should have known that Father Malicki had the propensity to commit sexual assaults and molestations.
The Church Defendants filed a motion to dismiss on grounds that resolution of these issues would “involve the internal ecclesiastical decision of the Roman Catholic Church required by Canon Law.” As such they were barred by the First Amendment. The trial court entered a order granting the Church Defendants’ motion to dismiss with prejudice, concluding that the First Amendment barred consideration of the parishioners’ claims. On appeal, the Third District reversed the lower court’s decision and remanded the case. On March 14, 2002, the state supreme court approved the appellate court’s decision, noting that the “First Amendment does not provide a shield behind which a church may avoid liability for harm caused to an adult and a child parishioner arising from the alleged sexual assault or battery by one of its clergy.”
The principal issue in the case was whether the First Amendment barred consideration of the parishioners’ claims of negligent hiring and supervision against the Church Defendants by a secular court. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Included in that language are two clauses regarding religion: the Free Exercise Clause and the Establishment Clause.
The Florida Supreme Court explained that the Free Exercise Clause guarantees “first and foremost, the right to believe and profess whatever religious doctrine one desires.” This right, however, is not absolute. Conduct remains subject to regulation for the protection of society. In order to survive a free exercise challenge, the conduct at issue must be “rooted in religious belief.”
The court went on to note the particular prohibition of the Establishment Clause, that the government “shall make no law respecting an establishment of religion.” This provision of the First Amendment involves the separation of Church and State and prevents the government from passing laws that aid one religion or prefer one religion over another. In other words, the government must avoid excessive entanglement with religion.
The court reasoned that an analysis of both clauses as they pertained to the present case was intertwined. The First Amendment would prevent the courts from resolving internal church disputes that required adjudicating questions of religious doctrine. However, intra-church disputes would be distinguished from disputes between churches and third parties.
The Church Defendants asserted that the First Amendment barred the parishioners’ claims because evaluating the “reasonableness” of church decisions regarding the hiring or supervision of Father Malicki would excessively entangle the civil courts in the internal workings of the church. The Florida Supreme Court disagreed, however, reasoning that the Church Defendants did not claim that they failed to exercise control over Father Malicki or that the priest’s underlying acts of sexual assault and battery were governed by sincerely held religious beliefs or practices. In other words, the Church Defendants’ alleged negligence in hiring and supervising Father Malicki was not “rooted in religious belief.”
The Florida Supreme Court concluded that the Establishment Clause did not bar the parishioners’ claims because the imposition of tort liability held a secular purpose whose primary effect neither advanced nor inhibited religion. Though allowing the parishioners’ claims to survive constitutional scrutiny, the supreme court cautioned that it was not deciding the merits of the underlying case. Even so, the First Amendment could not be used to “shut the courthouse door” on plaintiffs whose claims were founded on a religious institution’s alleged negligence in failing to prevent harm by one of its clergy who sexually assaulted parishioners.”
- Doe v. Evans
In this case, Jane Doe brought a lawsuit against the Reverend William Dunbar Evans, III, (“Reverend Evans”), the Church of the Holy Redeemer, Inc., the Diocese of Southeast Florida, Inc.” and Calvin O. Schofield, Jr., a bishop of the diocese (“Church Defendants”). Jane Doe alleged in her complaint that while she was a parishioner at Holy Redeemer Church, Reverend Evans approached her during her marital difficulties and asked if he could counsel her. In the course of their counseling relationship, which lasted several months, Reverend Evans “instituted a personal relationship and became involved with Jane Doe in a romantic manner.” Jane Doe alleged that all of the Church Defendants were aware of prior incidents involving sexual misconduct by Reverend Evans while he was counseling at Holy Redeemer and while counseling at another church; his misconduct was further known within the Diocese itself. Doe claimed that the Church Defendants had a right to exercise control over a “sexually exploitive pastoral counselor” and, in fact, had exercised such control in the past. Doe also alleged that none of the Church Defendants’ conduct was “motivated by any Sincerely held religious belief.”
Count I of Doe’s complaint set forth a cause of action for breach of fiduciary duty as to all the defendants. Doe claimed that Reverend Evans and the Church Defendants assumed a fiduciary duty to her by directly soliciting her trust and confidence. Doe alleged that Reverend Evans breached that fiduciary duty by becoming romantically involved with her and failing to adequately keep her interests paramount. The Church Defendants allegedly breached their fiduciary duty because they failed to protect Doe, though aware early on in the counseling process that Reverend Evans was abusing his position of trust. Count II of Doe’s complaint alleged another cause of action against the Church Defendants for negligent hiring and supervision based upon their collective knowledge of Reverend Evans’ prior sexual misconduct in similar circumstances.
The Church Defendants filed a motion to dismiss both counts claiming that Doe’s tort claims were barred by the First Amendment and involved practices and procedures “beyond the purview of secular courts.” The trial court granted the Church Defendants’ motion to dismiss and, after Doe appealed, the Fourth District affirmed the lower court’s decision.
In a March 14, 2002 decision, the Supreme Court of Florida quashed the decisions of the trial court and the Fourth District Court of Appeals. In doing so, the Florida high court disapproved the Fourth District’s rationale, which “apparently would have allowed a tort claim against a church defendant only if the underlying sexual misconduct involved criminal activity.” The court stated that:
[W]hether the priest’s tortious conduct in this case involved improper sexual relations with an adult parishioner or sexual assault and battery of a minor, the necessary inquiry in the claim against the Church Defendants is similarly framed: whether the Church Defendants had reason to know of the tortious conduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon the plaintiffs.
In its discussion of the negligent hiring and supervision claim, the Florida Supreme Court referred to its Malicki decision, in which it had ruled that the First Amendment did not bar claims for negligent hiring and supervision because the claims constituted neutral principles of tort law that did not violate either the Free Exercise Clause or the Establishment Clause. Therefore, Doe’s right to bring negligent hiring and supervision claims was not barred by the First Amendment.
With regard to the breach of fiduciary duty claim, the court noted that a counselor-counselee relationship had been characterized as fiduciary in nature by prior case law. As a result, the court reasoned that when a church, through its clergy, holds itself out as qualified to engage in marital counseling, and a counseling relationship arises, the relationship between the church and the counselee is one that may be characterized as fiduciary in nature. However, in ruling that Doe’s breach of fiduciary duty claim articulated a cognizable cause of action, the court emphasized that the existence of a fiduciary relationship was a question for the jury. The nature of that relationship, and whether there was a breach of the Church Defendants’ fiduciary duty to Doe as a result of their conduct, were likewise issues left for jury determination.
As in the Malicki case, the court addressed whether either the Free Exercise or the Establishment Clause would bar Doe’s claim for breach of fiduciary duty. With regard to the Free Exercise clause of the First Amendment, the court similarly reasoned that evaluating whether a fiduciary relationship arose and whether a religious organization breached this duty did not require an adjudication of religious doctrine or beliefs. Thus, allowing Doe’s claim to be decided in a secular court neither infringed upon nor restricted the religious practices of the Church Defendants and did not constitute a Free Exercise Clause violation.
With regard to the Establishment Clause, the court also refused to find a violation. The court concluded that the imposition of liability based on a breach of fiduciary duty has a secular purpose. Moreover, the primary effect of imposing liability under the circumstances of the present case neither advanced nor inhibited religion. In other words, the court could find no excessive entanglement between the courts and religion based on Doe’s allegations in her amended complaint.
Similar to its decision in Malicki, the court held that “by holding that the First Amendment does not bar the court’s consideration of the parishioners’ allegations, we expressly do not pass on the merits of the underlying case.” The court quashed the decision of the lower courts and remanded the case for further proceedings consistent with its opinion.
- How long is too long? The Statute of Limitations and Childhood Abuse Claims.
As recent case law in Florida has allowed claims to proceed against churches and other organizations as a result of sexual abuse, the issue has become when such claims are time-barred. When dealing with actions alleging intentional torts based on abuse, section 95.11(7), Florida Statutes (2010), provides that the victim may bring suit within seven years of reaching the age of majority, four years after leaving the dependency of the abuser, or four years of discovering the injury and the causal connection between the injury and abuse. Similarly, section 95.11(9), Florida Statutes (2010), provides that an action related to an act of sexual battery involving a victim under the age of sixteen at the time of the act may be commenced at any time.
Clearly Florida has extended the statute of limitations when dealing with claims for intentional torts of sexual abuse. However, it is rarely, if ever, possible to assert an intentional tort against a church or other organization based on the sexual abuse of an employee or other individual under the organization’s control. Rather, such lawsuits are invariably grounded in negligence or breach of fiduciary duty, both of which have four-year statutes of limitation. The issue becomes whether the above statutes of limitation can apply to a negligence or breach of fiduciary duty action when such action is based on the intentional sexual abuse of another. If not, is there a basis for delaying accrual of the statute of limitations or estopping the defendant from asserting same as a defense? The answers to these questions are vital to the ability of churches, schools and other organizations, as well as their attorneys, to properly evaluate their potential exposure to liability, both in the past and moving forward.
- Applicability of Sections 95.11(7) and 95.11(9) to Non-Intentional Torts.
The first step when evaluating potential liability for a claim is to determine which statute of limitations applies to the cause of action. If either section 95.11(7) or 95.11(9) apply, it will be exceedingly difficult to assert the statute of limitations as a defense, particularly by dispositive motion.
As to section 95.11(7), it is well-established that this provision applies only to causes of action for intentional torts based on abuse, and is therefore inapplicable to negligence actions, even if the underlying basis for those lawsuits is the intentional abuse of another. In Roof v. Wiley, the plaintiff brought suit against her uncle, father and grandmother, alleging that they had knowledge of her grandfather’s sexual abuse but failed to report it. The plaintiff also alleged that they prevented her from reporting the abuse through threats and refused her medical treatment. The court held that based on the plain language of section 95.11(7), it did not apply to plaintiff’s claims because they were not based on intentional torts. The Fourth District Court of Appeals reached a similar conclusion in Doe v. Sinrod, where it declined to apply section 95.11(7) to plaintiff’s negligence action against the school board based on alleged sexual abuse by a school board employee.
Application of section 95.11(9) to non-intentional torts is less settled. In fact, its application has not been addressed by any of the Florida District Courts of Appeal. However, it was briefly addressed by the Eleventh Circuit in Lewis v. Broward County School Board.
In Lewis, the plaintiff brought suit against the school board based on alleged sexual abuse he had suffered at the hands of a teacher from 1988-1989. The plaintiff brought asserted a civil rights action pursuant to 42 U.S.C. § 1983. The lower court dismissed plaintiff’s claim, finding that it was time-barred by the applicable statute of limitations. The court, in affirming the dismissal, held that 95.11(9) did not apply because plaintiff’s claim would have been time-barred in 2004. However, in so holding, the court stated ”[w]e recognize that Florida law was revised to allow an action such as Lewis’s to be commenced at any time.”
Although clearly dicta, the court’s statement that 95.11(9) is intended to allow an action such as that alleged in Lewis to be brought at any time should give pause. At first glance, it appears 95.11(9), like 95.11(7), is intended to apply only to actions for sexual battery when the victim was under the age of sixteen. By its plain language, the statute applies to “an act constituting a violation of s. 794.011.” Section 794.011, Florida Statutes, (2010) addresses the offense of sexual battery; it does not provide for any “negligent” sexual battery, nor does it apply to any individual other than the offender.
However, a single phrase in the statute may make all the difference. Unlike 95.11(7), which applies to actions “founded on” alleged abuse, 95.11(9) applies to actions “related to” sexual battery offenses. Arguably, this change evidences the Legislature’s intent not to limit application of 95.11(9) only to actions for sexual battery. For example, while an action for negligent retention, supervision and employment is clearly not “founded on” an intentional tort based on abuse, such an action could arguably be “related to” a sexual battery offense, if such an offense forms the basis of the negligence claims. One could also argue that had the Legislature intended to so limit 95.11(9), it would have simply used the same “founded on” language found in 95.11(7), which Florida courts have routinely held applies only to intentional torts. It appears, at least, that the Eleventh Circuit would take this position if confronted with the issue. While the issue is far from settled, churches, schools and other interested parties would do well to remain cognizant of these potential arguments and keep informed of any further developments.
- The “Delayed Discovery” Doctrine
If neither 95.11(7) nor 95.11(9) apply, plaintiff’s attorneys will be left searching for a way to justify bringing suit after the four-year statute of limitations has expired. Until recently, their first stop typically would have been the “delayed discovery” doctrine. However, recent case law in Florida has all but done away with this argument when dealing with negligence claims against an individual or organization who is not the alleged perpetrator.
The delayed discovery doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action. Thus, a plaintiff arguing for application of this doctrine will typically argue that he or she suffered from amnesia or repressed memory, therefore delaying accrual of the cause of action.
The landmark case in this regard is the Florida Supreme Court’s decision in Hearndon v. Graham. In Hearndon, the plaintiff brought suit against her stepfather for injuries stemming from sexual abuse suffered between the ages of 8 and 15. The district court affirmed the trial court’s dismissal of plaintiff’s complaint with prejudice, finding it was barred by the statute of limitations. The plaintiff argued that the “delayed discovery” doctrine should apply to delay accrual of the statute of limitations because she suffered from “traumatic amnesia” caused by the abuse. The court, in reversing the decision of the lower court, held that “application of the delayed discovery doctrine to childhood sexual abuse claims is fair given the nature of the alleged tortious conduct and its effect on victims, and is consistent with our application of the doctrine to tort cases generally.” It noted the “uniquely sinister form of abuse” and the “shock and confusion” which results as justification for applying the delayed discovery doctrine. The court concluded that “the delayed discovery doctrine applies to the accrual of the instant cause of action based on a claim of childhood sexual abuse accompanied by traumatic amnesia.”
The Hearndon decision led to uncertainty amongst the district courts as to what causes of action could support application of the delayed discovery doctrine. This led the Florida Supreme Court to clarify the Hearndon decision in Davis v. Monahan. In Davis, the court considered whether the delayed discovery doctrine applied to causes of action for breach of fiduciary duty, conversion, civil conspiracy and unjust enrichment. The court addressed its holding in Hearndon, stating that it applied the delayed discovery doctrine “to intentional torts arising from childhood sexual abuse of the plaintiff.” The court noted that Hearndon was limited to the “narrow circumstance of lack of memory in childhood sexual abuse cases” based, at least in part, on the statutory endorsement found in section 95.11(7).
Based on the Davis decision it is clear that Hearndon is limited both to the specific cause of action brought in that case (a claim of an intentional tort against the abuser) and the specific facts of the case (lack of memory of the abuse caused by the abuser). This was confirmed by the recent case out of the Third District Court of Appeals, Cisko v. Diocese of Steubenville. In Cisko, the plaintiff brought suit against the diocese for negligence related to sexual abuse suffered by two priests. The plaintiffs alleged traumatic amnesia that blocked their memory of the abuse until May 2005. The defendant moved for summary judgment based on the four-year statute of limitations, while the plaintiffs argued the action was permissible under the delayed discovery doctrine, as applied in Hearndon. In holding that the delayed discovery doctrine did not apply, the Third District Court of Appeals reiterated the Florida Supreme Court’s statements in Hearndon and Davis that the Hearndon decision was narrowly applied based not only to the unique facts of that case, but also the unique cause of action, to wit, “a suit for intentional tort against the perpetrator.” The court reasoned that, unlike Hearndon, there was no “statutory endorsement” justifying application of the delayed discovery doctrine to the plaintiffs’ cause of action, and therefore it did not apply.
Based on the holding in Cisko the law in Florida is settled, at least for now. Unless and until there is a contrary holding by another district court, or the Florida Supreme Court disapproves of Cisko, the delayed discovery doctrine cannot be applied to negligence actions founded on alleged sexual abuse.
- Equitable Estoppel
The other argument typically asserted by plaintiffs in these situations is equitable estoppel. The doctrine of equitable estoppel typically applies where the injured party “recognized the basis for the suit but the party that caused the injury induced the injured party to forbear from filing suit during the limitations period.” Two recent district court decisions have clarified when equitable estoppel can be applied in the context of childhood sexual abuse.
In John Doe 23 v. Archdiocese of Miami, Inc., the plaintiff brought suit against the archdiocese stemming from alleged sexual abuse by a priest. The plaintiff waited more than thirty years to file suit, and the trial court dismissed the complaint as time-barred by the statute of limitations. On appeal, the plaintiff argued that his delay in bringing a cause of action was based on the defendant’s concealment of its knowledge that the employees had abused other children, and therefore the defendant should be equitably estopped from relying on the statute of limitations. In rejecting this argument, the Fourth District Court of Appeals noted that the plaintiff “failed to allege any wrongful conduct or specific acts of fraud or fraudulent concealment by defendants at any point after the acts alleged in his amended complaint to justify applying the theory of equitable estoppel.” The court went on to state that even assuming the defendant breached its fiduciary duty to the plaintiff or violated its duty to report the abuse, this could not justify application of equitable estoppel.
Similarly, in Rubio v. Archdiocese of Miami, Inc., the plaintiff brought suit against the defendant for sexual abuse by a priest while he was an altar boy. The plaintiff alleged that the defendant knew of the priest’s history of molesting underage boys, but failed to disclose such knowledge and transferred the priest to different parishes in an effort to conceal his criminal behavior. The complaint was not filed until approximately thirty-five years after the alleged abuse, leading the trial court to dismiss the complaint with prejudice based on the statute of limitations. The plaintiff argued that based on the Florida Supreme Court’s holding in Florida Department of Health & Rehabilitative Services v. S.A.P., the defendant should be equitably estopped from asserting the statute of limitations. The Third District Court of Appeals, in rejecting plaintiff’s equitable estoppel argument, held that “equitable estoppel does not apply in this case because [the plaintiff] has not alleged any facts indicating the Archdiocese caused or induced him to refrain from filing suit within the limitations period.” The court noted that the plaintiff “knew the abuse had occurred, knew the identity of the abuser, and knew the abuser worked for the Archdiocese,” yet the complaint failed to allege any acts of the defendant that caused him to delay filing his claim within the limitations period. The court distinguished S.A.P. based on the special relationship between the plaintiff and the Department (plaintiff was a ward of the state), the Department’s violation of laws and falsification of government records to conceal its negligence, the age of the victim and lack of memory of the events, and the timeliness of filing the complaint after the internal investigation was released.
Based on John Doe 23 and Rubio, a plaintiff seeking to assert equitable estoppel must allege specific acts of the defendant which caused him or her to refrain from filing suit within the limitations period. The failure to disclose knowledge of the abuse, standing alone, is not enough.
It can be expected that claims for negligent hiring and supervision against the employers of individuals who are guilty of sexual misconduct will continue to proliferate. Given that eventuality, it is important that churches, schools and charitable organizations, as well as the attorneys who represent them, understand predominant pedophilic characteristics in order to forestall attendant litigation from the outset. Claims handlers should likewise familiarize themselves with the behaviors of the alleged perpetrator who exists at the center of a sexual misconduct lawsuit.
Given their First Amendment pronouncements, the two Florida Supreme Court cases discussed above are likely to enhance the claims options for plaintiffs who have suffered clergy abuse. Similar judicial findings have or will likely follow in other states. These findings should cause churches, schools, and youth organizations to re-evaluate their protocol regarding clergy and other employees whom they hire and retain – especially if accusations or suspicions of sexual misconduct have surfaced in the past.
However, the case law discussed above will make the bringing of such claims more difficult, requiring that they actually be brought within the limitations period, or that the plaintiff prove he was actually induced to refrain from filing suit based on active conduct of the defendant.
^Submitted by the authors on behalf of the FOCC Healthcare Practice Section.
 Kenneth Lanning, Child Molesters: A Behavioral Analysis (3d ed. 1992).
 Id. at 16.
 Id. at 17.
 Id. at 18.
 Id. at 19.
 Id. at 20.
 Id. at 28.
 Id. at 30.
 814 So. 2d 347 (Fla. 2002).
 Id. at 352.
 Id. at 353.
 Id. at 351.
 Id. at 367, n.20.
 Id. at 354.
 Id. at 361.
 Id. at 354.
 Id. at 361.
 Id. at 365.
 814 So. 2d 370 (Fla. 2002).
 Id. at 372.
 Id. at 373.
 See Eckhardt v. Charter Hasp., 953 P.2d 722, 727 (N.M. Ct. App. 1997) (citing MacDonald v. Clinger, 446
N.Y.S. 2d 801, 805 (App. Div. 1982)).
 Evans, 814 So. 2d at 377.
 § 95.11(9) applies only to actions which would not have been time-barred on or before July 1, 2010.
 See Goss v. Human Servs. Assocs., Inc., 79 So. 3d 127, 132 (Fla. 5th DCA 2012) (holding that “despite the fact that at least one of the sexual assaults occurred at [the employee’s] place of work, the sexual assault was not within the course and scope of her employment because it was not in furtherance of her employment . . .”); Iglesia Cristiana La Casa Del Senor v. L.M., 783 So. 2d 353, 357-358 (Fla. 3d DCA 2001) (holding, as a matter of law, that church was not vicariously liable for pastor’s rape of a minor because it did not occur within the scope of his employment and was not in furtherance of the church’s interests.) .
 § 95.11(3)(a), Fla. Stat. (2006); 95.11(3)(o), Fla. Stat. (2006).
 622 So. 2d 1018 (Fla. 2d DCA 1993), rev’d on other grounds, Wiley v. Roof, 641 So. 2d 66 (Fla. 1994).
 Id. at 1020.
 90 So. 3d 852 (Fla. 4th DCA 2012).
 489 Fed. Appx. 297 (per curiam).
 Id. at 298.
 Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000).
 Some plaintiff attorneys take it a step further, arguing that although the plaintiff was aware of the abuse, he or she failed to make the causal connection between the abuse and injury, thus justifying application of the “delayed discovery” doctrine.
 767 So. 2d 1179.
 Id. at 1181.
 Id. at 1186.
 832 So. 2d 708 (Fla. 2002).
 Id. at 709.
 Id. at 710.
 Cisko v. Diocese of Steubenville, 38 Fla. L. Weekly D 1902 (Fla. 3d DCA September 4, 2013), reh’g denied, Case No. 3d12-1496 (Fla. 3d DCA October 23, 2013)
 Id. ay *2.
 Id. at *3.
 See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (holding that in the absence of interdistrict conflict, “the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.”)
 Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 281 (Fla. 3d DCA 2013) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1078 (Fla. 2001)).
 965 So. 2d 1186, 1187 (Fla. 4th DCA 2007).
 Id. at 1188.
 114 So. 3d at 280.
 Id. at 281.
 835 So. 2d 1091 (Fla. 2002).
 Rubio, 114 So. 3d at 283.
 Id. at 281.
 Id. at 282.