Filing suit anonymously, John Doe 122 sued Chaminade College Preparatory and the Marianist Province of the United States for clergy abuse. The key issue in the case was whether the school knew that a counselor had abused other students and disregarded that knowledge when it failed to protect Doe from abuse.

Doe offered the testimony of an expert witness who inferred the school’s knowledge from documents in the counselor’s personnel file that made coded references to the counselor’s misconduct. The trial judge concluded that the expert testimony was inadmissible and granted summary judgment in the school’s favor. On appeal, the Missouri Supreme Court held that the trial court erred by excluding the expert testimony.

Facts of the Case

Doe alleged that he was sexually abused by his counselor, Brother John Woulfe, during his senior year at Chaminade. Doe alleged that he put the abuse behind him and didn’t think about it again until he received a letter from Chaminade, almost forty years after his graduation.

The letter advised Doe that allegations of sexual abuse had been made against Woulfe. Doe alleged that the letter brought back memories of his own abuse. Three years later, Doe sued Chaminade on several theories, including alternative counts of negligent and intentional failure to supervise Woulfe.

The trial court held that the negligent supervision claim was barred by Missouri precedent. A decision of the Missouri Supreme Court held that religious organizations have a First Amendment right to hire and retain clergy without government interference. In the court’s view, holding a religious organization liable for making negligent decisions to retain employees would violate the First Amendment.

For similar reasons, the court held that religious organizations cannot be held accountable for negligent supervision of its employees. The court drew the non-obvious conclusion that inquiring into what a church “should have known” about its employee’s conduct would “require inquiry into religious doctrine.” The court therefore held that the well-recognized claim of negligent supervision, while applying to all other employers, cannot be applied to religious organizations because doing so would create an “excessive entanglement” of church and state.

Courts in most states disagree with Missouri’s analysis of the First Amendment. Missouri precedent nevertheless foreclosed Doe’s claim for negligent supervision However, Missouri precedent allows abuse victims to sue for an intentional failure to supervise when a religious employer knows that an employee is engaged in acts of abuse and fails to take action to prevent the abuse from reoccurring.

Documents Addressing Woulfe’s Employment Issues

Doe had no direct evidence that the school or the Marianist Province knew Woulfe was abusing students in 1971, when he allegedly abused Doe. Since the school removed Woulfe in 1977 because of sexual abuse allegations, the school clearly had that knowledge six years later. The question was whether the school knew that Woulfe posed a risk to children in 1971 and disregarded that known risk.

To prove his claim of intentional failure to supervise, Doe relied on a 1968 letter that Brother Gray wrote to Woulfe in 1968. Referring to Woulfe’s departure from St. Boniface, the letter stated that “the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.”

The letter does not describe the “unusual situation” or the potentially serious “problem” to which it refers. A 1970 letter from Gray to Woulfe notifies Woulfe that he would be retained at the school despite the Provincial Council’s “considerable misgivings and reservations.” The letter does not explain the Council’s “misgivings and reservations.”

Expert Testimony

Father Doyle was proffered as an expert witness to decode the meaning of the unexplained words and phrases. Father Doyle spent more than 30 years investigating the problem of sexual abuse within the church. He has reviewed the personnel files of thousands of priests. Based on that experience, he has developed an understanding of how the church encodes specific information about sexual abuse in personnel documents.

Based on his experience, Father Doyle was qualified to determine “what will (and will not) appear in personnel records when a priest has committed acts of sexual abuse and, if reference to such conduct is made, the form such references will take.” He is therefore an expert in how the church encodes information about a priest’s sexual abuse in personnel documents.

In Father Doyle’s experience, personnel documents address most performance issues directly. When a priest has a problem with alcohol, consensual relationships with adult women, or the failure to perform his duties, personnel materials address those issues directly.

Father Doyle noted that the church uses indirect language when a priest has engaged in improper relationships with minors. In his 30 years of experience, including his review of hundreds of personnel files of priests who were accused of engaging in sexual abuse of minors, Father Doyle never saw an explicit reference to sexual abuse. Instead, the files routinely use “coded or euphemistic language” to discuss the priest’s misconduct.

Father Doyle identified references in Woulfe’s file to the “unusual situation” and to his untended “problem” as coded references to his sexual abuse of minors. In Father Doyle’s experience, the church routinely uses language of that nature to describe sexual misconduct with minors.

Father Doyle also concluded that the provincial considered removing Woulfe from the school in 1970 because of sexual abuse allegations. Its reference to retaining him “with considerable misgivings and reservations” fueled Father Doyle’s opinion that the school knew about Woulfe’s history of sexual abuse and chose to retain him.

Father Doyle also concluded that the personnel file’s failure to refer to sexual abuse before 1971 was consistent with a similar failure to refer to sexual abuse when Woulfe was removed from the school in 1977. The priest who made the decision to remove Woulfe testified in a deposition that the removal was based on sexual abuse. The school’s failure to document that reason in Woulfe’s personnel file is consistent with its failure to document its awareness of earlier instances of sexual abuse in plain language.

Court Decision

Father Doyle forthrightly acknowledged the possibility that he was wrong. He did not claim to have “metaphysical certainty” about the meaning of the terms he decoded. But he rested his opinion on the church’s decades-long practice of using similar euphemistic language to avoid making a direct reference to sexual abuse of minors.

The supreme court concluded that Father Doyle’s opinion was admissible evidence. Courts routinely admit the expert opinions of police officers who testify about the “coded language” used by drug dealers. Father Doyle’s expert opinion is no different.

The court also rejected the argument that Father Doyle’s opinion invaded the province of the jury. Father Doyle expressed no opinion as to whether Woulfe sexually abused Doe. He simply explained the meaning of terms that would allow the jury to infer the school’s knowledge of Woulfe’s sexual abuse of students prior to and during the time when Woulf was a student.

Since a jury could believe Father Doyle’s testimony and could conclude from that testimony that the school knew about Woulfe’s sexual abuse of children before he allegedly abused Doe, the jury could find that the school ignored a known danger to students by disregarding its duty to supervise Woulfe. The trial court erred by excluding Father Doyle’s expert opinion and by basing summary judgment on the absence of evidence that the school knew about Woulfe’s sexual abuse of students.