KELLY WIESE, KC Star, Associated Press
JEFFERSON CITY, Mo. – A man who claims to have recalled childhood sexual abuse by clergy decades after it occurred can move forward with a lawsuit, the Missouri Supreme Court ruled Tuesday.
The case, which is being watched closely by advocates for sexual abuse victims, turns on the state deadline for filing lawsuits, which is triggered not by when a wrongdoing is committed, but by when victims are capable of realizing the damage they suffered.
Michael Powel contends he was sexually abused by two instructors while attending Chaminade College Preparatory School, a Catholic boarding school in St. Louis County, from 1973 to 1975. But Powel claims he did not recall the abuse until 2000, when he began receiving treatment for brain cancer.
A St. Louis attorney who handled the case for Chaminade did not immediately return a call seeking comment Tuesday.
Powel sued the school and the Marianist Province that sponsors it in June 2002, claiming the school had intentionally failed to supervise the staff members who repeatedly abused him.
Advocates for abuse victims praised the ruling and said it opens the door to more people who have been abused.
“We’re convinced this will enable more victims to expose more predators and protect more kids,” said David Clohessy, national director of the St. Louis-based Survivors Network of Those Abused by Priests. “Essentially the judges are saying, `Let the jury decide whether a kid is capable of knowing he or she was hurt.’ For years an arbitrary rigid time limit denied child sex victims any justice. And now that’s no longer true.”
He said the ruling could help 15 to 30 clergy sex abuse victims in the St. Louis area alone.
Missouri law in place when Powel sued required lawsuits to be filed within five years of when the damage from a wrongdoing “is sustained and capable of ascertainment.” For victims who are minors, that clock did not start ticking until they turned 21.
A lower judge had dismissed Powel’s case, finding he was capable of realizing damage of the abuse when it allegedly occurred, and thus his timeline to sue long ago expired.
But the state Supreme Court sided with Powel, finding a difference between being aware of abuse and realizing the harm it had caused, regardless of whether the memories of the abuse are suppressed, and ordered the court process to proceed.
“It is not appropriate for this court to make credibility determinations on summary judgment,” the court majority said in an opinion written by Judge Laura Denvir Stith. “Further, it is premature to determine whether Michael can meet this standard.”.
But other judges offered a word of caution.
Chief Justice Michael Wolff agreed in a separate opinion that the lawsuit should continue but questioned whether Powel can proceed once both sides complete the discovery process.
“Whether Powel repressed his memory is irrelevant because his injuries were capable of ascertainment when the abuses occurred,” Wolff wrote.
Wolff also wrote that court precedent has found that a person’s inconsistent testimony does not create a factual dispute for which a case should be allowed to proceed to trial.
“Powel in his affidavit says he repressed memory of the alleged sexual abuse, but Powel also testified in his deposition that he always remembered the alleged abuse,” Wolff wrote.
Case is Michael Powel v. Marianist Province of the United States, SC86875.