By PAMELA SCHAEFFER
NCR Staff

In a historic award in a clergy sex abuse trial, a jury awarded 11 plaintiffs $118 million, finding the Dallas diocese guilty of "gross negligence," fraud and reckless disregard for the safety of others.

Averaging $10.8 million per plaintiff, the award far exceeds any so far in a case of clergy sex abuse.

A former priest accused of molesting minors over a period of 12 years in three parishes, Fr. Rudolph "Rudy" Kos, had been judged liable before the trial began because he failed to respond to the suits.

Included in the $118 million award is $11 million awarded to Nancy and Pat Lemberger, parents of Jay Lemberger, who committed suicide in 1992 after years of alleged abuse by Kos.

Plaintiffs were awarded a total of $101.6 million in actual damages and $16.5 in punitive damages, allowable in the case because of the finding that the diocese was guilty of gross negligence. Plaintiffs had asked for $146.5 million in all.

The actual damages, apart from $11 million for the Lembergers for loss of companionship and other losses related to the death of their son, were to cover medical and legal costs and loss of past and future income for young men who testified that their lives had been destroyed because of their encounters with Kos, which began when they agreed to serve as altar boys.

Persons following the trial say that, even before the verdict was announced, it could be considered a landmark case in its public revelations of the effects of the abuse on victims, most of them now in their 20s or early 30s. Plaintiffs' attorneys allege that the trial has also been highly unusual in its revelations of how diocesan officials for years ignored "red flags" in efforts to protect the church from scandal.

So far, in a dozen or so trials related to clergy sex abuse over the last decade, jury awards to individual plaintiffs have averaged about a million dollars, according to Jason Berry of New Orleans, an expert on clergy sex abuse. Berry, author of a book on clergy sex abuse, Lead Us Not Into Temptation, told NCR the church has paid out $650 million so far in medical and legal costs related to clergy sex abuse, according to the most recent estimate. Church officials insist the figure is far lower.

Wrenching stories

After the verdict was announced in Dallas, Nancy and Pat Lemberger told a reporter for NCR that they were surprised by the size of the award. "I hope it's a signal to the Dallas diocese to clean up its act," Pat Lemberger said.

"I feel our son is looking down on what's happening today," Nancy Lemberger said. The couple said they had not given up on the church.

Berry said the Dallas case is "striking" because of the number of plaintiffs and the weight of the evidence. "Usually when attorneys have the weight of the evidence in their favor, the defense typically will pull out all the stops to settle" to avoid the public bleeding of a trial, Berry said.

No one in the trial has disputed that the abuse occurred. Criminal charges are pending against Kos, who has admitted to some of the abuse.

During 11 tension-filled weeks since the trial began, jurors have heard wrenching stories from victims, as well as testimony of diocesan officials and expert witnesses.

In closing arguments, the church's attorney, Randal Mathis, said Kos was a "sociopath ... a smart, manipulative person" who could have fooled anyone. According to The Dallas Morning News, which has covered the case daily since it began, Mathis told jurors, "The diocese clearly was wrong but at the time it was making what it thought were appropriate, fair and reasonable judgments. They've tried to react and make changes so this will never possibly happen again."

The plaintiffs' attorneys, Sylvia Demarest and Windle Turley, argued that church officials, fearing scandal, had dismissed "a mountain of evidence" that Kos represented a danger to young boys. The attorneys contended that church officials not only ignored warnings but also lied before and during the trial and destroyed evidence as part of an ongoing cover-up.

Kos was removed from ministry in 1992, years after complaints from other priests began, but after the first complaint from a victim. He is now living in San Diego and working as a free-lance paralegal.

Other recent events in Dallas related to the trial include:

• A highly unusual speech from state District Judge Anne Ashby to all involved in the case after the jury left the courtroom on July 22 to begin its deliberations. According to a report in The Dallas Morning News, she told plaintiffs, "I've been so close to your tragedy, it just breaks my heart." To all, she said, "If anything like this can ever be positive, then let there be healing and let there be hope." She urged plaintiffs to retain their faith in themselves and in their church.
• A controversial public apology to Kos' victims by Bishop Charles Grahmann of Dallas in a speech to 300 people at a Catholic fundraiser as the trial was winding down in early July.
• Appointment of a nine-member crisis management team to help the diocese deal with outcome of the trial.
• Action on the part of the diocese in early July to strip a retired priest, the Rev. Patrick Lynch, of his faculties when he refused to cooperate in an investigation of new reports that he had sexually molested minors.

According to The Dallas Morning News, Grahmann said in his public apology, "Sometimes we are not alert, not on guard. ... We know now that child abuse is an exceedingly scarring event that has long-term consequences. We need to identify victims of child abuse. We need to show those victims our deepest compassion. We need to give them medical and psychological counseling." Grahmann assured donors that their money would not be used to pay expenses in the court case.

Some applauded Grahmann's statement as helpful and sincere. Others said it seemed phony in the context of revelations at the trial and, in any case, was too little, too late.

During the trial, plaintiffs and some of their parents testified that young boys were often invited to spend the night in the rectory with Kos and plied with gifts, alcohol and drugs. Plaintiffs said Kos had a foot fetish, using the feet of young boys to masturbate himself and, with some of his victims, moving on to oral or anal sex.

Kos had been married in the 1960s before he decided to become a priest. His marriage, which according to news reports had never been consummated, was annulled by the Dallas diocese. According to The Dallas Morning News, his former wife, Kathleen Hetzel Winkler, testified in her deposition that she had told a diocesan official at the time that Kos was gay and attracted to boys.

The official, Fr. Leon Duesman, testified at the trial that he had neither asked Kos directly about the problems nor questioned an Air Force chaplain whom Winkler had named as a source who could talk about her ex-husband's problems.

Witnesses said Kos molested boys at three parishes from 1981 to 1992 -- much of it during the tenure of Bishop Thomas Tschoepe -- before Kos was finally removed by Grahmann in 1992. Grahmann became bishop of Dallas in 1990 when Tschoepe retired.

Faith destroyed

Plaintiffs testified that the abuse had destroyed their faith in themselves, in authority figures and in the church. They described problems with drugs and alcohol, poor academic records, erratic employment histories, troubled relationships, depression and suicidal thoughts. Most said they had been taught to trust and respect priests and, as a result, were left confused and deeply ashamed by the abuse -- and in some cases didn't recognize it as such for years.

One plaintiff, expressing the depth of his denial, said, "I still have strange dreams that Rudy will show up and act like nothing happened, like we're best friends."

Demarest and Turley asked the jury to award each of the plaintiffs $582,000 for therapeutic care and up to $3.4 million in lost earnings. They also asked for at least $1 million for past mental anguish for each plaintiff and $1.5 million for future mental anguish.

Mathis told NCR that the amount of money demanded in the suit had precluded settling out of court.

Plaintiffs' attorneys have cited numerous red flags, including repeated complaints from other priests. The attorneys have also alleged that Ray K. McNamara, a therapist hired by the diocese, counseled victims of sex abuse by priests and served diocesan interests by persuading victims it would be in their best interest psychologically to refrain from testifying against the priests.

Sex abuse suits against two other priests, Fr. William K. Hughes and Fr. Robert R. Peebles, are still pending as is a suit against McNamara for his allegedly unprofessional behavior in connection with the cases.

In an interview in Dallas during the trial, one of the plaintiffs told NCR, "This whole trial has escalated my recovery a thousandfold. I feel as if I'm being heard. It has helped knowing I wasn't singled out [by Kos] and that the problem is widespread. I've never tapped into my emotions the way I did when I took the stand" to testify, he said. "I can't tell you what it did for my soul."

Mathis, the attorney for the diocese, told NCR that he expected the case to be appealed "all the way to the Supreme Court," regardless of who won or lost. Mathis said he feels the "constitutional issues" have yet to be heard, and the statute of limitations still looms in some of the cases.

Mathis said only two of the plaintiffs had filed in time to be within guidelines of the statute in Texas. Suits charging sexual abuse of minors are supposed to be filed within two years after a victim turns 18.

Plaintiffs' attorneys argued successfully that the case should proceed to trial because of evidence of a cover-up by the diocese. Another factor, Turley noted in an interview, is that in three cases the abuse continued after the young men turned 18, making it a "continuing tort" under Texas law.

Jurors in the Dallas case -- 10 women and two men -- included no Catholics, but one former Catholic.

Demarest, one of the plaintiffs' attorneys, said that a policy developed by the National Conference of Catholic Bishops to deal with clergy sex abuse and another developed recently by the Dallas diocese would not have stopped the abuse by Kos.

"Even after all of this, the policy says nothing about friendships, overnights, trips -- behaviors that are highly correlative with sex abuse," she said. "There is no code of conduct to help parents decide what is right and wrong, what the diocese approves of and what it doesn't. Nothing has changed," she said.

Lynch, the priest recently stripped of faculties, is living in retirement in England and Ireland. The diocesan action came just days after The Dallas Morning News wrote a story about the priest. He had been removed from a Dallas parish in 1995 for "health problems" after officials, faced with allegations of sexual abuse, found a memo in his personnel file saying he'd become sexually involved with a high school student in 1966.

Helen Parmley, former religion writer for The Dallas Morning News, covered the announcement of the verdict for NCR in Dallas.

National Catholic Reporter, August 1, 1997

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