Church liability at issue in abuse suit

State Supreme Court considers responsibility for congregants' actions

The Las Vegas Sun/January 13, 2010

A national debate over the extent to which a religious group can be held liable for sexual misconduct by its clergy or its volunteers has made its way to the doorstep of the Nevada Supreme Court.

Because lawsuits alleging sexual abuse by clerics have typically been settled before trials could take place, the state's courts have not delved very far into the issue of religious groups' liability for sexual abuse. That's about to change as the high court considers a case involving a Las Vegas woman who claims she was sexually assaulted nine years ago by a man she described as a cantor at a synagogue.

The Church of Jesus Christ of Latter-day Saints and the Roman Catholic bishops of Las Vegas and Reno have lined up with the synagogue to argue that the First Amendment shields religions from lawsuits of this type.

But groups including the Jewish Board of Advocates for Children, Survivors Network of those Abused by Priests, and the National Association to Prevent Sexual Abuse of Children accuse the churches of attempting to "twist the First Amendment into a refuge for harmful behavior."

Marci Hamilton, a professor at Yeshiva University's Cardozo School of Law in New York City who wrote the counterpoint for the advocacy groups in the Nevada case, says religious groups want to eliminate costly litigation and keep misconduct out of the public eye.

In most states, courts have ruled that the First Amendment can't be used as a defense in these types of cases, Hamilton says.

In failed attempts to "hide behind the First Amendment," churches have lost similar cases or paid cash settlements in just about every state except Utah, Wisconsin and Missouri, where courts have been more supportive of church positions, Hamilton says.

Victims advocacy groups have chipped away at the church positions in Wisconsin and Missouri - and could be helped even more by a victory in Nevada, Hamilton says.

At the center of the Nevada case is Theressa Ramani, who filed a lawsuit in District Court in Clark County in 2003 against Chabad of Southern Nevada, Chabad of Summerlin, two rabbis and other individuals she said were affiliated with the two Orthodox synagogues. She alleged that Michael Segelstein was a Chabad cantor when he assaulted her in 2001 in the parking lot of another synagogue.

Ramani alleged that a Chabad rabbi refused to believe her when she told him what Segelstein had done and that the synagogue retaliated against her and her then-teenage son. She alleged that the synagogues, as well as Segelstein, were liable for the assault.

Segelstein pleaded guilty in 2002 to open or gross lewdness. His sentence of one year in jail was suspended under the condition that he successfully completed three years of probation.

Ramani lost her lawsuit, however. District Judge Timothy Williams ruled there was no direct connection between Chabad and the assault. Ramani also failed to prove that Segelstein was a Chabad employee, Williams found.

She filed an appeal in 2007 with the Supreme Court, where, during the past several months, the additional churches and the national victims advocacy groups joined the fray and made the case more significant.

Las Vegas attorney David Frederick, who is representing Chabad and the other defendants, did not return the Sun's calls seeking comment. In court filings, he argues that the First Amendment offers protections of religion that apply in this case. For one, Ramani's claims of retaliation and harassment by Chabad are outweighed by a religious entity's right to decide church membership and discipline, Frederick writes in his court briefs. He contends that a religion's rights extend to decisions regarding its spiritual personnel.

Expanding on arguments made by Frederick, the Mormon church, in a court brief filed in October - and later joined by the Roman Catholic bishops of Las Vegas and Reno - argued that churches' liability for sexual assault claims and other disputes involving clergy misconduct is limited because of religious freedoms protected by the First Amendment.

The Mormon church is telling the Supreme Court that it needs to avoid a conclusion that would "burden the exercise of religion, excessively entangle civil courts in religious affairs."

The Catholic Church added that its ability to provide social services through its charities could be impeded if it can be held liable for a volunteer's misconduct. It argues that its charities "could fold if burdened with the expense of litigation and liability" due to the random acts of volunteers.

The Diocese of Las Vegas declined to comment for this story.

Kim Farah, a Salt Lake City-based spokeswoman for the Church of Jesus Christ of Latter-day Saints, said the overall argument is not that churches should be completely immune from civil or criminal liability. But a contention in the Las Vegas case is that Segelstein was, at most, a congregant, and one of the Mormon church's points is that churches should not be held liable when one congregant harms another.

"To apply such responsibility would infringe on First Amendment rights, impose almost limitless liability on churches, and turn religious institutions and their leadership into instruments of law enforcement," she says.

Her church is arguing that religious groups should be held liable only in cases where they disregarded "a known risk of harm," in cases where they were negligent in the supervision of a clergy member or volunteer - allowing a known pedophile to operate a youth program, for example.

As did Frederick on behalf of Chabad, the Mormon church cited a Nevada Supreme Court ruling from 2005 in which it was determined that a janitorial company was not liable for the sexual assault of a mentally disabled woman by one of its employees.

But Ramani's attorney, Michael Reitzell of Truckee, Calif., and the victims advocacy groups say that was a very different case from Ramani's. They say that limiting the civil liability of churches would have numerous negative repercussions for Nevadans.

Reitzell contends, for example, that a ruling in favor of the religious groups' arguments could "deter the reporting of actual criminal conduct, particularly sexual conduct," and that would be particularly ill-advised "in an era rife with reports of clergy molestation and similar abuses."

Hamilton says religious organizations have shown themselves to be incapable of ending cycles of abuse by themselves, leaving civil and criminal laws as the only effective way to protect vulnerable individuals, she says.

When the state's highest court will rule remains unknown, however, because both sides are continuing to file briefs, and the court has not yet scheduled oral arguments.

To see more documents/articles regarding this group/organization/subject click here.