Diocese challenges law allowing more time to file suit

The Roman Catholic Diocese of Providence argued in a legal filing that the state’s new deadline to sue over childhood sexual abuse is, in part, unconstitutional.

The legal wrangling comes in the first test case after a new state law extended — in some cases retroactively — the deadline to sue over child sexual abuse. A man sued the diocese in September, saying he was abused hundreds of times when he was a child by a North Providence priest in the 1970s and 1980s.

Now, though, the diocese is asking the Superior Court to dismiss the case. Until then, the diocese argued in a separate filing, it shouldn't have to turn over records to the man who said he was abused.

Among the diocese’s legal positions: The state can't extend the deadline to file lawsuits over child sex abuse if the deadline had already run out under the old law. That's exactly what the legislation, signed over the summer, tried to do for certain cases.

“The Rhode Island Supreme Court has held unequivocally that retroactive legislative changes to statutes of limitations that revive already time-barred claims are unconstitutional,” the diocese’s lawyers said. “This is not a close question.”

The diocese’s lawyers are also trying to halt what’s called legal discovery in the case, describing the requests for internal documents and information as burdensome.

The motion to dismiss the case is not unexpected, said Timothy J. Conlon, the lawyer for the man suing the diocese. But the description of his discovery requests as a burden was “totally ridiculous,” Conlon said. It came just after Pope Francis lifted the highest levels of church secrecy on child sex abuse cases.

“I don’t know whether they didn’t get the memo from Pope Francis about openness, but clearly, at least at this point, they’re not forthcoming with information,” Conlon said.

The diocese and its lawyers did not immediately respond to a request for comment Friday. Earlier this year the diocese reached an agreement with the attorney general to turn over decades worth of diocesan records as part of a state investigation into clergy abuse.

A month ago, Conlon requested the diocese's response to a number of questions, including whether the diocese funded legal defense for any accused priests, whether it arranged for surveillance of victims and their lawyers, or whether it tried to thwart any criminal investigation.

Philip Edwardo, who now lives in Florida, has sued the diocese, as well as Bishop Thomas Tobin and former Bishop Louis Gelineau. Edwardo said he was abused for years by Philip Magaldi, a now-deceased Rhode Island priest. Magaldi’s name is included in the diocese’s list of clergy who were “credibly accused” of sexually abusing minors.

Edwardo was the first to file a priest abuse lawsuit after the state over the summer extended the statute of limitations to file civil claims for child sexual abuse. A second man, also represented by Conlon, has filed suit too. Peter Cummings, also 53, alleges that he was sexually abused by the Rev. John Petrocelli while a student at the Bishop McVinney Regional School in Providence.

That both plaintiffs are 53 is no coincidence: The deadline to sue over childhood sexual abuse was extended in the summer from seven years to 35 years after a victim’s 18th birthday.

The law extending the deadline said that even if people’s claims had already expired under an older deadline, they could use the new 35-year one — so long as the suit was against a “perpetrator defendant.”

Edwardo’s suit lays out the legal argument that the diocese and its leaders were so implicated in the sexual abuse by their priests, their misconduct so extreme, that they were themselves perpetrators under the law.

The diocese, Edwardo’s latest complaint said, actively thwarted criminal prosecutions into predator priests and pressured law enforcement to protect offenders.

That sort of conduct is akin to acting as the getaway driver for a bank robbery, Edwardo’s attorney has argued. Under criminal law, a getaway driver can be charged with murder if his confederate opens fire during the robbery, even if the driver didn’t actually pull the trigger.

Much of the diocese’s 21-page motion to dismiss, filed on Dec. 19, seeks to rebut the argument that it could be sued as a "perpetrator." The General Assembly and long-established court precedent have established that it cannot, the church argued. The lawsuit is an attempt to do an end-run around the legislation, the diocese argued.

“Allowing this case to proceed would sweep aside two decades of work and attention by our courts and General Assembly,” the church’s lawyers said.

The perpetrator, the diocese said, is the person who actually abuses the child, not an institution that may have failed to properly supervise them. Edwardo’s claims expired under an even older statute of limitations, in 1990, the diocese said.

Even if the court agrees that it could be held liable as a perpetrator, though, the diocese had a backup argument: The entire attempt by the legislature to retroactively apply a new statute of limitations for already-expired claims, like Edwardo's, is unconstitutional.

Conlon, meanwhile, points to the same 1996 state Supreme Court case as the diocese to support his argument that the diocese can be a perpetrator. “Perpetrators” of childhood sexual abuse under the law are those who could be held criminally liable as principals. And in the years since 1996, when it may have seemed far fetched, it’s now become clear: That applies to the diocese and its leaders, Conlon said.

“I think people today understand that’s exactly what was going on,” Conlon said.