Parochial day school students have no protection under New Jersey’s Child Sexual Abuse Act, since the institutions, unlike boarding schools, don’t constitute households, a federal judge says.
Without “a relationship more analogous to that of a parent or more evocative of home life,” the institution “does not fit a reasonable definition of ‘within the household,’” as the the term is used in the statute, U.S. Chief District Judge Jerome Simandle said Wednesday in Bryson v. Diocese of Camden, 12-cv-499.
The plaintiff, Mark Bryson, claims he was molested by Father Joseph Shannon while a student at St. Anthony of Padua Catholic School in Camden in the 1960s.
During first grade, Shannon regularly took care of Bryson after school until his mother came to pick him up, according to the suit.
At some point, Shannon allegedly brought Bryson to the basement under the guise of doing chores, hugged him, removed his pants and fondled his genitals.
Bryson kept the incident a secret, as Shannon requested, and thereafter was repeatedly molested by the priest until he was transferred to a public school the next year, according to the suit.
Bryson claims he repressed all memories of the abuse until a triggering event on Feb. 10, 2010.
Bryson, now an Ohio resident, filed suit last January, claiming the Diocese of Camden knew or should have known about Shannon’s misconduct and continued to allow contact with children, kept sex abuse allegations under wraps and destroyed documents.
Bryson contended that St. Anthony was a “passive abuser” under the CSAA. The statute covers active abusers but also provides that parents, guardians and anyone “standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse.”
The diocese moved for dismissal, arguing that St. Anthony didn’t qualify as a passive abuser.
Though the state Supreme Court in Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), held a boarding school was “within the household” for purposes of the CSAA, Bryson’s case is distinguishable because he didn’t live at St. Anthony, the diocese contended.
On Wednesday, Simandle agreed and dismissed the CSAA count.
Bryson “urges the Court to extend the holding of Hardwicke and find a private day school to be ‘within the household’ … but the Court declines to do so,” said Simandle, sitting in Camden.
“‘Household’ is a flexible term, but it is not infinitely malleable,” Simandle wrote.
“The Hardwicke court stated that ‘household’ need not imply residency under a single roof or a familial relationship, but all of the cases the court cited in defining the term involved parties that shared at least one of those two characteristics,” he continued.
The Hardwicke court “suggests that a closely analogous, intimate relationship is required” when it noted that plaintiffs were full-time boarders who received basic necessities like food and shelter from the school, Simandle said.
Bryson lived with his parents, and St. Anthony, even when caring for him after school hours, “provided services and amenities normally associated with those of a typical after-school program of a school or a church, not those of a home,” Simandle wrote.
The words “within the household” are limiting because the Legislature could have excluded them, and “extended potential liability to all persons who stood in loco parentis of the victim,” but did not, the judge said.
Simandle added that state courts have not held day schools “within the household” for purposes of the CSAA, citing D.M. v. River Dell Regional High School, 862 A.2d 1226 (N.J. Super. Ct. App. Div. 2004).
The Supreme Court, six weeks after issuing Hardwicke, declined to review the Appellate Division’s ruling in River Dell, Simandle noted.
Simandle denied the diocese’s motion to dismiss as time-barred Bryson’s common-law claims, including negligent retention and supervision of Shannon. Bryson “has pled a plausible explanation for his delay,” Simandle said, citing the discovery rule.
Simandle ordered a hearing within 90 days on whether the two-year statute of limitations should be tolled until February 2010, when Bryson claims he recovered memories of his abuse.
Bryson is represented by Adam Horowitz and Stuart Mermelstein of Herman Mermelstein & Horowitz in Miami.
Horowitz says the distinction between day schools and boarding schools is not settled law. “The courts in New Jersey have gone both ways on that issue. I don’t know, until the New Jersey Supreme Court rules on that precise issue, whether we’ll have any clear guidance.”
They will focus on an upcoming hearing on the statute of limitations issue, Horowitz says.
“Courts are leaning favorably to [concepts of] repressed memory and traumatic amnesia,” says Horowitz, whose firm exclusively represents child sex-abuse victims.
Bryson’s local counsel, Jeffrey Fritz of Soloff & Zervanos in Cherry Hill, did not return a call.
Neither did the diocese’s lawyer, William DeSantis of Ballard Spahr in Cherry Hill.