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IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI

BRYAN BACON,

)

)

Plaintiff,

)

vs.

)

)

Cause No. 05CC-005015

BROTHER WILLIAM MUELLER,

)

Div. No. 13

ST. JOHN VIANNEY HIGH SCHOOL,

)

and MARIANIST PROVINCE OF THE

)

UNITED STATES,

)

)

Defendants.

)

)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT ST. JOHN VIANNEY HIGH SCHOOL, INC. AND DEFENDANT MARIANIST PROVINCE OF THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff’s claims are timely brought because Plaintiff did not ascertain, nor would a

reasonable person have ascertained, the damage from the sexual abuse until between September

20, 2004 and November 2, 2004. In Missouri the applicable statute of limitations does not begin

to run until the damage or injury from the sexual abuse is capable of ascertainment. Plaintiff

filed the Petition in this matter, only one year after his damages were capable of ascertainment.

The applicable statute of limitations in this matter are two, three and and five years.

Consequently, Plaintiff’s claims are timely.

BACKGROUND FACTS

Bryan Bacon filed the Petition in the current case as a result of an incident of physical and

sexual abuse perpetrated upon him by Defendant Brother William Mueller. The incident in

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question here occurred when Bryan Bacon was a sophomore at St. John Vianney High School in

St. Louis, Missouri. Exhibit C, 37:8-9 Attached to Defendants’ Motion for Summary Judgment. 1

In November 1985 and during a study period, Bro. Mueller asked Bryan Bacon to participate in

an experiment that Mueller claimed that he was conducting related to a class he was taking in

graduate school. Ex. C, 37:1-7; Ex. B, p. 10. While there, Bro. Mueller told Bryan that Mueller

was working on a special project for graduate school. Id. Bro. Mueller then told Bryan to come

to his office the next day and to not tell anyone about it. Id.

Plaintiff came to Bro. Mueller’s office the next day during his Physical Education period.

Id. When Plaintiff arrived, Bro. Mueller instructed Plaintiff to lock the door to Mueller’s office.

Id. Again, Mueller emphasized that the project had to be kept secret. Id. Bro. Mueller then had

Bryan sit in a chair in the center of the office and then asked Bryan a number of questions. Bro.

Mueller then walked up behind Bryan and began to touch Bryan’s neck, upper back and chest,

including rubbing Bryan’s nipples. Id.; Ex. C, 97:8 - 15.

Bro. Mueller then began asking Bryan

if he was frightened. Ex. B, p. 10. At that point, Bryan was asked to stand up where Br. Mueller

began to rub Bryan’s neck, back, chest and nipples. Id.

Bro. Mueller then went to his desk and found a black blindfold and secured it over

Bryan’s eyes. Id. The entire time, Bro. Mueller continued to ask Bryan if he was scared. Id.

Next, Bro. Mueller pulled Bryan very close to him and began breathing hard and began to kiss

Bryan’s neck and ear. Id. Next, Bro. Mueller went to his desk and removed something from the

desk and then Br. Mueller pressed a knife against Bryan’s throat. Id. Again, Bro. Mueller asked

1 Plaintiff does not attach copies of exhibits that have already been filed with the Court by Defendants. Plaintiff will refer to these exhibits by the Exhibit No. marked by Defendants.

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Bryan if he was scared. Id. At that point, Bro. Mueller began to breathe hard, kiss Bryan and

began to press his penis against Bryan’s back, simulating intercourse on Bryan’s buttocks

through his clothing. Id. The entire time, Bro. Mueller continued to press the knife against

Bryan’s throat. Id. After a short period, Bro. Mueller was interrupted by a telephone call. Id.

Bro. Mueller then removed the blindfold and rather harshly, reminded Bryan to not tell anyone

about the “experiment.” Id.

A few weeks after the incident described above, Bro. Mueller was

removed from his position at St. John Vianney because of stress and personal matters. Exhibit E,

p. 7.

This was not the first time that Bro. Mueller had engaged a St. John Vianney student in

“experiments” he allegedly conducted for a graduate class. In 1965 - 66, Brother Mueller, under

the guise of performing an experiment for his Masters degree in psychology, convinced a

fourteen through fifteen year old Vianney student to participate in a series of “experiments.”

(Deposition of Harold L. Suda in the Visnaw v. Marianist Province of the United States 06CC-

000008, Div. 15, pp. 20:13 - 31:10. Attached hereto and marked as Exhibit 1.) During these

“experiments,” Brother Mueller used ether to render the boy unconscious and in the last

experiment, the boy woke up to Mueller loosening his pants. Id. The student reported this

“experiment” to the principal at St. John Vianney at the time, Brother Fred Wisebrook,

approximately ten days after the last “experiment.” Id. at 32: 15 - 34:6. Shortly after that report,

Brother Mueller disappeared from St. John Vianney. Id. 39:13 - 23.

In the Bacon case, Bryan learned that Bro. Mueller was removed from St. John Vianney

because Bro. Mueller had sexually abused yet another St. John Vianney student. Shortly after

Bro. Mueller left, Bryan Bacon had a conversation with another student at St. John Vianney

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named Tony Del Percio. Ex. C, 177:5 - 21.

During that conversation, Tony Del Percio told

Bryan Bacon that Bro. Mueller had not left St. John Vianney because of stress, personal or

medical reasons, it was because Bro. Mueller had molested Tony. Id. Bryan Bacon did not

mention the incident that he had with Bro. Mueller during that meeting. Id. at 177:22 - 24.

After that conversation with Tony Del Percio when Bryan was approximately 15 years

old, Bryan Bacon did not think about the incident with Bro. Mueller again until September 2004.

On September 20, 2004, Bryan Bacon attended a therapy session with his wife and he was asked

whether he had ever experienced a traumatic event. Ex. C, 237:4 - 9. Bryan responded that he

had not. Sometime between September 20, 2004 and November 2, 2004, Bryan told his wife,

Suzette Bacon, about the incident with Bro. Mueller and asked her whether she thought that this

event would be considered traumatic. Ex. C, 234:19 - 235:16; Deposition of Suzette Bacon, 98:2

- 101:1, attached as Exhibit 2. Suzette Bacon replied that she thought that it was a traumatic

event and that Bryan should go and see her therapist to get some treatment. Ex. 2, 98:2 - 101:1.

In fact, Bryan Bacon did go to his wife’s therapist beginning on November 2, 2004. Therapy

Notes of Julie Reid, p. 10 attached as Exhibit 3. According to the notes of the therapist, they

discussed the trauma Bryan had experienced while he was in High School. Id.

Finally, Bryan Bacon filed his Petition in this Court on September 20, 2005. Exhibit A.

In Bryan Bacon’s Petition, he makes a number of legal claims. Specifically, Mr. Bacon makes

the following claims in his Petition against the Marianist Defendants:

Count I

Child Sexual Abuse and/or Battery

Count II

Intentional Infliction of Emotional Distress

Count IV

Negligence

Count V

Negligent Supervision, Retention and Failure to Warn

Count VI

Intentional Failure to Supervise Clergy

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Count VII

Breach of Fiduciary Duty

Ultimately, the St. John Vianney High School and the Marianist Province of the United

States (hereafter the “Marianist Defendants”) filed this Motion for Summary Judgment claiming

that the statute of limitations expired on Bryan Bacon’s claims prior to him filing his Petition and

this Opposition to Summary Judgment is filed in response.

In addition, Defendant Bro. Mueller has filed a Motion to Join the Marianist Defendants

in their Motion for Summary Judgment. Simply stated, Bro. Mueller’s motion is meritless. In

addition to the above, Bro. Mueller, in his deposition, asserted his right against self-incrimination

to critical questions that conflict his Motion for Summary Judgment. For example, Bro. Mueller

refused to answer questions about how many boys he assaulted and the role that the Marianist

Defendants played in his crimes:

Q.

Isn’t it true that you’ve been – that you’ve sexually assaulted over three dozed boys?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

Isn’t it true that your supervisors within the Society of Mary learned as early as 1965 that you were sexually assaulting children who were your students?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

Isn’t it true that - you sexually abused children while you were a staff or faculty at St. John Vianney High School in St. Louis, Missouri?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

Isn’t it true that in response to learning about you sexually assaulting children who were your students, the Society of Mary and St. John Vianney High School simply transferred you to another school?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Deposition of Brother William Mueller, p. 7:9 - 8:2, attached as Exhibit 4.

In addition, Bro. Mueller refused to answer questions about the incident with Bryan

Bacon:

Q. Did you have Bryan Bacon, a student at St. John Vianney, come to your office in

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approximately 1985?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

When he was in your office, did you tell Bryan Bacon that you were working on your master’s degree?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

Did you tell Bryan Bacon that you needed some assistance with a paper that you were writing in your master’s program on the subject of fear.

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While Bryan Bacon was in your office, did you touch his neck?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

Did you touch his shoulders?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While Bryan Bacon was in your office, did he - - did you touch his chest?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While Bryan Bacon was in your office, did you touch his back?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While Bryan Bacon was in your office did you blindfold him?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While Bryan Bacon was in your office, did you have a knife and hold it against Bryan Bacon’s throat?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

In 19 - - October 1985, while Bryan Bacon was in your office at St. John Vianney High School, did you ever touch the front of your body to the backside of Bryan Bacon’s body and move your hips and simulate sexual intercourse?

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Q.

While you were in your office in October of 1985 at St. John Vianney high School, did you ever kiss Bryan Bacon?

A.

I respectfully refuse to answer on the ground my answer may incriminate me. ***

Q.

After you rubbed your genitals against Bryan Bacon in the simulated intercourse and held a knife to his throat, you told Bryan not to tell anybody what happened, didn’t you.

A.

I respectfully refuse to answer on the ground my answer may incriminate me.

Ex. 4, p. 9:8 - 11:9; 12:16-19.

This Memorandum also applies to Bro. Mueller’s claims.

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LAW AND ARGUMENT

A. All of Plaintiff’s Claims Are Timely

1. Sexual Battery

A common law claim for battery must be brought within two years from the date

when the damage resulting therefrom is sustained and is capable of ascertainment. R.S.Mo. §

516.140; R.S.Mo § 516.100; K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996) citing to

Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995).

2. Intentional Infliction of Emotional Distress, Negligence, Negligent Supervision, Retention and Failure to Warn, Intentional Failure to Supervise Clergy, Breach of Fiduciary Duty

Plaintiff’s common law claims for Intentional Infliction of Emotional Distress,

Negligence, Negligent Supervision, Retention and Failure to Warn, Intentional Failure to

Supervise Clergy and Breach of Fiduciary Duty must be brought within five years from the date

when the damage resulting therefrom is sustained and is capable of ascertainment. R.S.Mo §

516.120; R.S.Mo. § 516.100.

3. Capable of Ascertainment

As discussed above, the statute of limitations for Plaintiff’s claims is either two years

(battery) or five year from the date when the damage resulting therefrom is sustained and is

capable of ascertainment. The issue of when damage is capable of ascertainment was recently

considered by the Missouri Supreme Court. In Powel v. Chaminade College Preparatory, Inc.,

197 S.W.3d 576, 580 (Mo. Banc. 2006), the Missouri Supreme Court considered the issue of

when the statute of limitations begins to run in some sexual abuse cases. Specifically the Court

considered the meaning of R.S.Mo. § 516.100 as it applies to both R.S.Mo §§ 516.120 and

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516.140, two of the statutes of limitation in the current matter. In it’s opinion, the Court noted

that the applicable statute of limitations begins running “when the damage resulting therefrom is

sustained and is capable of ascertainment

.” The Court then proceeded to articulate what is

meant by “capable of ascertainment” when it stated:

In sum, under the above cases the capable of ascertainment test is an objective one. The issue is not when the injury occurred, or when plaintiff subjectively learned of the wrongful conduct and that it caused his or her injury, but when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages. At that point, the damages would be sustained and capable of ascertainment as an objective matter.

Id. at 584-585. (Emphasis Added.)

Moreover, the Court added that when contradictory or different conclusions may be drawn from

the evidence as to whether the statute of limitations has run, it is a question of fact for the jury to

decide. Id. at 585.

In the current case, Plaintiff did not discover that he was injured until between September

20, 2004 and November 2, 2004. Specifically, Plaintiff discovered that he was injured shortly

after he attended a therapy session with his wife where the therapist asked him whether he had

ever experienced a traumatic event. (Affidavit of Stephen Peterson, M.D., ¶ 6 attached as Exhibit

No. 5; Ex. C, pp. 234:19 - 237:9.) In response, the Plaintiff answered that he had not. (Id.) After

the therapy session, Plaintiff began reflecting on the question of whether he had experienced a

traumatic event and he approached his wife about the events that had occurred with Brother

Mueller. (Id.) She responded by stating that these events were in fact traumatic events. (Id.) It

was at that point that Plaintiff made the required connection between the events of abuse and the

fact that he may have been injured by the abuse. (Affidavit of Stephen Peterson, M.D., Ex. 5, ¶

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6.)

It is important to note that this is not the time that is to be used as the date of

ascertainment of injury for the common law claims being discussed in this section. According to

Powel, it is an objective standard that must be used to determine when a reasonable person would

have been put on notice that an injury and substantial damages may have occurred and would

have undertaken to ascertain the extent of the damages. Powel, 197 S.W.3d at 584. Thus, this

Court must consider how a reasonable sexual abuse victim in the position of the Plaintiff would

react in this situation.

When so determining what a reasonable sexual abuse victim would do, it is important to

consider how sexual abuse victims are different from non-victims. According to Dr. Peterson,

children and adolescents who are sexually abused are at an elevated risk to experience psychiatric

disorders and other significant health-related problems throughout their lifetime. (Affidavit of

Stephen Peterson, M.D. Ex. 5, ¶ 4. Attached as Exhibit No. 5)

The most prevalent psychiatric

disorders experienced by sexual abuse victims are posttraumatic stress disorder, depression,

anxiety disorders, personality disorders, illicit drug or alcohol dependency, difficulties

experiencing or expressing emotions and maladaptive sexual habits as well as combinations of

these difficulties. (Id.) Understanding the prevalence of psychiatric disorders is important to

note because each of these disorders carries with it a number of psychological consequences that

impact a sexual abuse victim’s ability to understand that he or she was injured and substantially

damaged as a result of the sexual abuse. (Id.)

One of the most significant symptoms experienced by abuse victims is the symptom of

traumatic avoidance. (Id.) When a victim experiences traumatic avoidance, he or she persistently

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avoids stimuli associated with the trauma. (Id.) This includes making effort to avoid thoughts,

feelings, or conversations associated with the trauma. (Id.) It also means avoiding activities,

places or even people that arouse recollections of the trauma. (Id.) Thus, a sex abuse victim is

likely to bury the memories of the sexual abuse deep into their memory in order to avoid having

to think about it. This process of traumatic avoidance has a significant impact on a sex abuse

victim’s ability to ascertain his or her injury because the victim does not mentally process the sex

abuse like a non-victim does. Consequently, the sex abuse victim does not conclude that the

abusive acts were injurious or damaging.

Further, it is common for an abuse victim to not understand the abusive acts to be

injurious until he or she reveals the abusive acts to a counselor, therapist or family doctor they

are seeing for another unrelated reason and the counselor, therapist or family doctor identifies

the acts as sexually abusive and harmful. (Id.)

It is normally this time that the victim seeks

mental health treatment and begins to understand the true impact the sexual abuse has had on him

or her. (Id.)

Without the above involvement of a mental health professional, it is very difficult for a

victim of sexual abuse to make any connection between the sexually abusive acts and any related

psychiatric injury. One significant reason making this connection difficult is that it is common

for a significant amount of time to elapse between the sexually abusive acts and the resulting

psychiatric symptoms. (Id. ) According to the article cited by Dr. Peterson, it often takes 8 to 10

years for victims to begin to show symptoms of depression, anxiety as well as other psychiatric

symptoms. (Id.) With this said, it is quite understandable why an abuse victim would have

trouble connecting the psychiatric symptoms to acts committed over a decade earlier.

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Further, is it also common for sexual abuse victims to not see the connection between the

sexual acts and their psychiatric symptoms because it is common for the symptoms to appear

completely unrelated to the sexual acts. (Id.) A good example is where a sexual abuse victim

experiences an exaggerated startle response as a symptom of posttraumatic stress disorder when

the sexually abusive acts were not violent or physically painful. (Id.) The same can be said for

symptoms of sadness, irritability, weight loss or insomnia which are symptoms of depression.

(Id.) Unless one is a mental health professional, these symptoms appear completely unrelated to

the sexual acts. Again, it is understandable that a sexual abuse victim would not draw the

conclusion that the sexual acts caused these apparently unrelated psychiatric symptoms.

Consistent with Dr. Peterson’s testimony, it is therefore quite uncommon for a victim of

sexual abuse to understand that he or she has been injured by the sexually abusive acts, and to

determine the extent of the injuries, without the assistance of a trained mental health provider.

(Id.) Given the above, according to Dr. Peterson, an average sexual abuse victim in Plaintiff’s

position would be put on notice that he or she had been injured by the acts described here and

that substantial damages had occurred only when he or she had the assistance of a mental health

professional or a physician. (Affidavit of Stephen Peterson, ¶5.)

Applying this expert information to the case at hand reveals that Plaintiff ascertained his

injury relating to the sexual abuse when he first had the assistance of a mental health

professional. That date is somewhere between September 20, 2004 and November 2, 2004.

(Affidavit of Stephen Peterson, M.D. Ex. 5, Ex. 107 and 108.) Consequently, all statutes of

limitations began to run during that period. Plaintiff filed the current lawsuit on September 20,

2005. Exhibit A.

This is within the two year statute of limitation for Plaintiff’s battery claim

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and within the five year statute of limitations that govern Plaintiff’s remaining claims. As a

result, Plaintiff’s claims are timely.

B. Plaintiff’s Claim For Sexual Abuse and Sexual Battery Against the Marianist Defendants Is a Valid Claim and Is Timely

1. Plaintiff’s Claim for Sexual Abuse under R.S.Mo. 537.046 Against the Marianist Defendants is a Valid Claim

In their brief, the Defendants claim that they cannot be held liable for sexual abuse under

Mo. Rev. Stat, Section 537.046 or for sexual battery because they are not-for-profit corporations

and cannot commit offenses. In support, the Marianist Defendants cite no cases or statutes for

their position.

Initially, it must be noted that the cause of action for childhood sexual abuse is found in

R.S.Mo. § 537.046 which basically states that child sexual abuse is the commission of rape

sodomy, incest, sexual abuse and other sex crimes against a plaintiff who is under eighteen years

of age. It has long been a staple of criminal law that one who aids or abets the commission of a

crime may be held responsible for that crime. Missouri law is clear that anyone who in any way

aids, abets or encourages another in the commission of a crime by any form of affirmative

participation with a common intent and purpose is guilty to the same extent as the principal

offender even though the accomplice did not personally commit every element of the principal

offense. State v. Kobel, 927 S.W.2d 455, 459 (Mo. Ct. App. 1996). In fact, proof of any form of

participation by the defendant in the crime is sufficient to support a conviction. State v. Forister,

823 S.W.2d 504, 508 (Mo. Ct. App. 1992). Indicators of aiding and abetting include presence at

the scene of the crime, flight therefrom and association with others involved before, during and

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after commission of the crime. State v. Simpson, 778 S.W.2d 705, 707 (Mo.App.1989). A

defendant's presence at the scene and his companionship and conduct before and after the offense

are circumstances from which one's participation in the crime may be inferred.

State v.

Gonzalez-Gongora, 673 S.W.2d 811, 813 (Mo.App.1984) (Emphasis added.)

Moreover, despite the Defendants’ claim to the contrary, a business entity can be held

criminally liable the same as any individual. In State v. Boone Retirement Center, Inc., 26

S.W.3d 265, 274-75 (Mo. Ct. App. 2000), the Court ruled that a business entity can have

criminal liability if “the conduct constituting the offense is engaged in, authorized, solicited,

requested, commanded or knowingly tolerated by the board of directors or by a high managerial

officer acting within the scope of his employment and in behalf of the corporation.” (Emphasis

original.)

Finally, even if the Defendants ultimately claim that Bro. Mueller’s acts were not

sufficient to constitute rape, sodomy, incest, sexual abuse or sexual contact, Bro. Mueller’s acts

were sufficient to constitute an attempted rape, sodomy, incest, sexual abuse or sexual contact.

According to R.S.Mo. § 564.011:

A person is guilty of attempt to commit an offense when, with the purpose of committing

the offense, he does any act which is a substantial step towards the commission of the

offense. A “substantial step” is conduct which is strongly corroborative of the firmness

of the actor’s purpose to complete the commission of the offense.

See also State v. Gray, 923 S.W.2d 929, 933-34 (Mo. Ct. App. 1996) (Evidence that defendant

made a statement of “Come on, let’s do something,” grabbed the victim, wrestled her to the floor,

straddled her, grabbed her breasts, attempted to remove her skirt and tried to cover her mouth to

silence her screams was sufficient for attempted rape.)

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In the current matter, the Marianist Defendants also have criminal liability as one who

aids and abets a crime. As discussed, as early as 1965, the Marianist Defendants became aware

that Bro. Mueller had committed a crime against 14 - 15 year old Harold Suda when Bro.

Mueller had conducted a fake “experiment” on Suda. (Exhibit 1, pp. 20:13 - 31:10.) Knowing

that Bro. Mueller had committed a criminal offense, the Marianist Defendants did not notify law

enforcement authorities to report Bro. Mueller’s criminal behavior. Instead, the Marianist

Defendants assisted Bro. Mueller in fleeing when it transferred Bro. Mueller to another position

outside the State of Missouri at Roncalli High School in Pueblo, Colorado. (Exhibit E, p. 7, ¶

(g).) In addition, knowing the Bro. Mueller had committed crimes in the past, the Marianist

Defendants assisted Mueller in committing additional criminal offenses by placing him in a

position of authority where Mueller had unlimited and unsupervised access to more children like

Bryan Bacon and Tony Del Percio, who he sexually assaulted.

Ex. C, 177:5 - 24.

When the

Marianist Defendants learned of this criminal behavior, they, again, aided Bro. Mueller in

evading prosecution by issuing a false public statement that Bro. Mueller was on a leave of

absence due to stress and personal matters. Ex. E., p. 7. Again, the Marianist Defendants failed

to notify law enforcement authorities.

Such acts are sufficient to implicate the Marianist Defendants in criminal activity

sufficient to support a claim under the Missouri childhood sexual abuse statute, R.S.Mo. §

537.046.

2.

Plaintiff’s Claim for Sexual Abuse under R.S.Mo. § 537.046 Against Bro. Mueller is a Valid Claim

There can be no doubt that Bro. Mueller’s actions constitute attempted rape, sodomy, or

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sexual abuse. According to Bryan Bacon, in November 1985 and during a study period, Bro.

Mueller asked Bryan Bacon to participate in an experiment that Mueller claimed that he was

conducting related to a class he was taking in graduate school. Ex. C, 37:1-7; Ex. B, p. 10.

While there, Bro. Mueller told Bryan that Mueller was working on a special project for graduate

school. Id. Bro. Mueller then told Bryan to come to his office the next day and to not tell anyone

about it. Id.

Plaintiff came to Bro. Mueller’s office the next day during his Physical Education period.

Id. When Plaintiff arrived, Bro. Mueller instructed Plaintiff to lock the door to Mueller’s office.

Id. Again, Mueller emphasized that the project had to be kept secret. Id. Bro. Mueller then had

Bryan sit in a chair in the center of the office and then asked Bryan a number of questions. Bro.

Mueller then walked up behind Bryan and began to touch Bryan’s neck, upper back and chest,

including rubbing Bryan’s nipples. Id.; Ex. C, 97:8 - 15.

Bro. Mueller then began asking Bryan

if he was frightened. Ex. B, p. 10. At that point, Bryan was asked to stand up where Br. Mueller

began to rub Bryan’s neck, back, chest and nipples. Id.

Bro. Mueller then went to his desk and found a black blindfold and secured it over

Bryan’s eyes. Id. The entire time, Bro. Mueller continued to ask Bryan if he was scared. Id.

Next, Bro. Mueller pulled Bryan very close to him and began breathing hard and began to kiss

Bryan’s neck and ear. Id. Next, Bro. Mueller went to his desk and removed something from the

desk and then Br. Mueller pressed a knife against Bryan’s throat. Id. Again, Bro. Mueller asked

Bryan if he was scared. Id. At that point, Bro. Mueller began to breathe hard, kiss Bryan and

began to press his penis against Bryan’s back, simulating intercourse on Bryan’s buttocks

through his clothing. Id. The entire time, Bro. Mueller continued to press the knife against

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Bryan’s throat. Id. After a short period, Bro. Mueller was interrupted by a telephone call. Id.

Bro. Mueller then removed the blindfold and rather harshly, reminded Bryan to not tell anyone

about the “experiment.” Id.

A few weeks after the incident described above, Bro. Mueller was

removed from his position at St. John Vianney because of stress and personal matters. Exhibit E,

p. 7.

In addition, Bro. Mueller refused to answer a number of significant questions during his

deposition on the ground that his answer might incriminate him. Specifically, Bro. Mueller

asserted his right against self-incrimination to the following questions:

! Whether he had sexually assaulted over three dozen boys? Ex. 4, 7:9-13.

! Whether his supervisors within the Society of Mary learned as early as 1965 that he was sexually assaulting children who were your students? Ex. 4, 7:14-18.

! Whether the Marianists, in response to learning about Bro. Mueller sexually assaulting students, the Marianists simply transferred him to another school? Ex. 4, 7:24 - 8:4.

! Whether Bro. Mueller had Bryan Bacon, a student at St. John Vianney, come to his office in approximately 1985? Ex. 4, 9:8 - 12.

! Whether Bro. Mueller told Bryan Bacon that Mueller was working paper related to his master’s degree on the topic of fear and that Mueller needed some assistance? Ex. 4, 9:13 - 19.

! Whether Bro. Mueller touched Bryan Bacon’s neck, shoulders, chest, and back. Ex. 4, 9:22 - 10:11.

! Whether Bro. Mueller blindfolded Bryan Bacon, held a knife to Bacon’s throat and rubbed Mueller’s genitals against Bryan Bacon’s back side simulating anal intercourse. Ex. 4, 10:12 - 11:6.

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In Missouri, when a defendant asserts his Constitutional right against self-incrimination,

there is an inference that the answer would have been unfavorable. In Lappe and Associates, Inc.

v. Palmen, 811 S.W.2d 468, 471 (Mo. Ct. App. 1991), the Missouri Eastern District Court of

Appeals ruled that:

In civil cases, a witness’ invocation of his privilege against self-incrimination justifies an inference that, if he had answered the question truthfully, the answer would have been unfavorable to him. Thus Palmen’s refusal to answer most of Lappe and Associates’ questions supports a conclusion that truthful answers would have been unfavorable to him.

(Citations omitted)

Consequently, in the current matter, it is reasonable for this Court to conclude that when

Bro. Mueller invoked his right against self-incrimination that the truthful answer would have

been unfavorable. Thus, when it comes to Mueller, this Court may conclude that Bro. Mueller

sexually assaulted over three dozed boys, had Bryan Bacon come to his office in approximately

1985, told Bryan Bacon that Mueller was working paper related to his master’s degree on the

topic of fear and that Mueller needed some assistance, while there Bro. Mueller touched Bryan

Bacon’s neck, shoulders, chest, and back and then blindfolded Bryan Bacon, held a knife to

Bacon’s throat and Mueller rubbed his genitals against Bryan Bacon’s back side simulating anal

intercourse. Under any interpretation of the criminal laws, these acts constituted attempted rape,

sodomy, incest, sexual abuse or sexual contact. As a result, Bryan Bacon’s claim for childhood

sexual abuse under R.S.Mo. § 537.046 is sufficient and is supported by evidence.

3. Plaintiff’s Claim for Sexual Abuse Against the Defendants are Timely

Bryan Bacon’s claims under the Missouri childhood sexual abuse statute, R.S.Mo. §

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537.046, are timely. According to R.S.Mo. § 537.046 (2):

In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.

As discussed in paragraph A (3) above, in the current case, Plaintiff did not discover that

he was injured until between September 20, 2004 and November 2, 2004. Specifically, Plaintiff

discovered that he was injured shortly after he attended a therapy session with his wife where the

therapist asked him whether he had ever experienced a traumatic event. (Affidavit of Stephen

Peterson, M.D.,Ex. 5, ¶ 6; Ex. C, pp. 234:19 - 237:9.) In response, the Plaintiff answered that he

had not. (Id.) After the therapy session, Plaintiff began reflecting on the question of whether he

had experienced a traumatic event and he approached his wife about the events that had occurred

with Brother Mueller. (Id.) She responded by stating that these events were in fact traumatic

events. (Id.) It was at that point that Plaintiff made the required connection between the events of

abuse and the fact that he may have been injured by the abuse. (Affidavit of Stephen Peterson,

M.D., Ex. 5, ¶ 6.)

It is important to note that unlike the capable of ascertainment analysis found in Powel,

above, the standard to be used in R.S.Mo. § 537.046 is not clear whether date that Bryan Bacon

discovered or should have discovered is subjective to Bryan Bacon or an objective standard using

a reasonable person standard. In this case, it makes no difference. Plaintiff is timely under either

a subjective standard of 3 years from the time the plaintiff discovers or reasonably should have

discovered that his injury was caused by child sexual abuse or the objective standard of 3 years

from the time a reasonable person should As discover his injury was caused by child sexual

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abuse.

According to Dr. Peterson, children and adolescents who are sexually abused are at an

elevated risk to experience psychiatric disorders and other significant health-related problems

throughout their lifetime. (Affidavit of Stephen Peterson, M.D. Ex. 5, ¶ 4.)

The most prevalent

psychiatric disorders experienced by sexual abuse victims are posttraumatic stress disorder,

depression, anxiety disorders, personality disorders and chemical dependency.

(Id.)

Understanding the prevalence of psychiatric disorders is important to note because each of these

disorders carries with it symptoms such as clinical avoidance that effect a sexual abuse victim’s

ability to understand that he or she was injured and substantially damaged as a result of the

sexual abuse. (Id.) It is common for an abuse victim to not understand the abusive acts to be

injurious until he or she reveals the abusive acts to a counselor, therapist or family doctor they

are seeing for another unrelated reason and the counselor, therapist or family doctor identifies

the acts as sexually abusive and harmful. (Id.)

It is normally this time that the victim seeks

mental health treatment and begins to understand the true impact the sexual abuse has had on him

or her. (Id.)

Without the above involvement of a mental health professional, it is very difficult for a

victim of sexual abuse to make any connection between the sexually abusive acts and any related

psychiatric injury. One significant reason making this connection difficult is that it is common

for a significant amount of time to elapse between the sexually abusive acts and the resulting

psychiatric symptoms. (Id. ) According to the article cited by Dr. Peterson, it often takes 8 to 10

years for victims to begin to show symptoms of depression, anxiety as well as other psychiatric

symptoms. (Id.) With this said, it is quite understandable why an abuse victim would have

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trouble connecting the psychiatric symptoms to acts committed over a decade earlier.

Further, is it also common for sexual abuse victims to not see the connection between the

sexual acts and their psychiatric symptoms because it is common for the symptoms to appear

completely unrelated to the sexual acts. (Id.) A good example is where a sexual abuse victim

experiences an exaggerated startle response as a symptom of posttraumatic stress disorder when

the sexually abusive acts were not violent or physically painful. (Id.) The same can be said for

symptoms of sadness, irritability, weight loss or insomnia which are symptoms of depression.

(Id.) Unless one is a mental health professional, these symptoms appear completely unrelated to

the sexual acts. Again, it is understandable that a sexual abuse victim would not draw the

conclusion that the sexual acts caused these apparently unrelated psychiatric symptoms.

Consistent with Dr. Peterson’s testimony, it is therefore quite uncommon for a victim of

sexual abuse to understand that he or she has been injured by the sexually abusive acts, and to

determine the extent of the injuries, without the assistance of a trained mental health provider.

(Id.) Given the above, according to Dr. Peterson, an average sexual abuse victim in Plaintiff’s

position would be put on notice that he or she had been injured by the acts described here and

that substantial damages had occurred only when he or she had the assistance of a mental health

professional or a physician. (Affidavit of Stephen Peterson, Ex. 5, ¶5.)

Applying this expert information to the case at hand reveals that Plaintiff ascertained his

injury relating to the sexual abuse when he first had the assistance of a mental health

professional. That date is somewhere between September 20, 2004 and November 2, 2004.

(Affidavit of Stephen Peterson, M.D., Ex. 107 and 108.) Consequently, the statutes of

limitations for R.S.Mo. § 537.046 began to run during that period. Plaintiff filed the current

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lawsuit on September 20, 2005. Exhibit A.

This is within the three year statute of limitation for

Plaintiff’s claim. As a result, Plaintiff’s claim under R.S.Mo. § 537.046 is timely.

CONCLUSION

As Plaintiff’s injuries were not capable of ascertainment until September 20, 2004, the

two, three and five year statutes of limitations had not expired when Plaintiff filed the current

lawsuit on September 20, 2007. As a result, Defendants Motion for Summary Judgment must be

denied.

Dated:

JEFF ANDERSON & ASSOCIATES, P.A.

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Jeffrey R. Anderson Patrick W. Noaker, MOBAR # 39836 Attorneys for Plaintiff

E-1000 First National Bank Building 332 Minnesota Street

St. Paul, MN 55101

Phone: (651)227-9990

Fax:

(651) 297-6543

CHACKES, CARLSON, SPRITZER & GHIO

Kenneth M. Chackes, MOBAR #27534

M. Susan Carlson, MOBAR #37333

8390 Delmar Boulevard, Suite 218

St. Louis, MO 63124

Phone: (314) 872-8420

Fax:

(314) 872-7017