Court Denies Abuse Claim for 'Surreptitious' Sex Act

The Oregon Court of Appeals has ruled that a priest did not sexually abuse a high school student by masturbating in his presence, but a dissenting judge said the majority had disregarded the priest's “evil intent.”

David Schmidt sued the Archdiocese of Portland in 2002 under a law that extends the statute of limitations for child abuse claims. ORS 12.117, he argued, applied to his case even though Louis Charvet, a priest at the Mt. Angel Abbey seminary, had no physical contact with him during the alleged masturbation incident in 1958.

A 2-1 majority of the appeals court disagreed, saying in a March 19 opinion that “even assuming that Charvet was masturbating during the encounter, that conduct was not 'child abuse' within the definition of ORS 12.117.”

That definition includes, among other things, intentional conduct by an adult that results in mental injury to a child “caused by cruelty to the child” and sexual exploitation of a child. “[T]he conduct alleged here was essentially surreptitious and, although plaintiff was present, it did not directly involve him,” Presiding Judge Darleen Ortega wrote.

But Judge Walter I. Edmonds took a far more nuanced and sympathetic approach than the majority. “[A] jury could reasonably infer from the evidence that Charvet masturbated in plaintiff's presence in order to induce him to participate in future sexual conduct with Charvet,” he said in his dissent.

He also argued that at the time ORS 12.117 was enacted, the term “cruelty” was understood to include "acts that by their very nature were of such wanton disregard for the welfare of a child that they evidenced an evil intent on the part of the actor."

“As a matter of common sense, I would conclude that masturbating in front of a child is conduct” that meets that standard, Edmonds said.

Schmidt remembered the masturbation incident some time after he began seeing a mental health counselor in 1999. ORS 12.117 tolls the statute of limitations if an abuse claim is filed “not more than three years from the date the injured person discovers ... the injury or the causal connection between the child abuse and the injury.”

According to Schmidt's deposition, Charvet began to masturbate after summoning him to his office, instructing him to stand in front of the desk and asking whether he had ever masturbated.

“I could see that there was a lot of motion going on under [Charvet's] cassock and I assumed what I was seeing was he was masturbating and it became frightening to me,” Schmidt testified.

Judge Ortega found there was “no evidence from which a jury could find or infer that Charvet directed any action toward plaintiff” and made much of the fact that Schmidt “testified that, during the incident, Charvet 'became very distracted in what he was doing to himself.'"

But no matter how “distracted” Charvet may have been, he exploited the vulnerability of a minor for his own sexual gratification while, as Judge Edmonds put it, “exercising his authority over him by virtue of their faculty-student relationship.”

Earlier this month, the Oregon Supreme Court reversed the Court of Appeals in a sex abuse case, finding the statute of limitations on an abuse claim against a government employee begins to run when the victim realizes the government was involved, not when the actual abuse occurred. T.R. v. Boy Scouts of America.

By Matthew Heller
3/23/08