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Spotlight Report

Lawyer for cleric seeks an alleged victim's counseling records

By Ralph Ranalli, Globe Staff, 8/6/2003

While the Archdiocese of Boston has dropped efforts to obtain information from church counselors who have aided victims of sexual abuse, not all Catholic clergy are apparently following Archbishop Sean P. O'Malley's lead.

A lawyer for the Waltham-based Stigmatine Fathers and Brothers yesterday asked a Middlesex Superior Court judge to order that an alleged abuse victim, Donald P. Smith, turn over records of counseling he received from a nun in the mid-1990s.

Smith has sued the Rev. Joseph Fellin, a onetime high ranking Stigmatine priest, in connection with sexual abuse he allegedly suffered at the hands of the Rev. Richard J. Ahearn, who is now dead.

Smith's lawsuit alleges that Fellin knew about the abuse -- even walking into the same room in the rectory of Our Lady of Mount Carmel Parish in Pittsfield while Ahearn was molesting Smith -- but did nothing to stop it.

Fellin's lawyer, Charles R. Capace, said that Fellin, who is now 83 and living in a home for aged priests in Waltham, "steadfastly denies" the allegations in the suit.

Capace is also arguing that Smith's lawsuit was filed after the three-year statute of limitations had expired. Under state law and a recent Supreme Judicial Court decision, victims of sexual abuse must file a legal claim within three years of a realization that any emotional or psychological harm they may have suffered was connected to the abuse they endured.

Capace told Superior Court Judge Julian T. Houston that he believes that Smith's counseling records from sessions with a nun at Springfield's Mercy Hospital will show that the plaintiff knew as early as 1996 that he had suffered emotional harm from the alleged abuse.

"We have reason to believe that the statute ran out on this case as much as four or five years ago," Capace said. "We are entitled to get those records."

This spring, lawyers for the Archdiocese of Boston angered victims of clergy sexual abuse and their lawyers when they attempted to depose counselors from the archdiocese's Office of Healing Assistance, which was set up specifically to aid victims of abuse.

Shortly after being appointed archbishop -- but before he was officially installed last week -- O'Malley halted the practice, saying that victims should not have to fear seeking help from the archdiocese because their words could be used against them in court.

The Stigmatines, however, are an international religious order not affiliated with the archdiocese, and Capace said yesterday that the Smith case "has nothing to do with O'Malley."

Smith's attorneys, William Gordon and Mitchell Garabedian, asked Houston to keep the counseling records sealed, saying that Smith sought counseling because his sister had died, not because of the alleged abuse. They also argued that the records were sealed under state law that bans the disclosure of "spiritual counseling" by priests, ordained ministers, and Christian Science practitioners.

Capace, however, argued that only priests, not nuns, deacons, and other Catholic religious personnel, are covered under the law.

Garabedian said church lawyers have used the law in the past to keep records of abusive priests from victims.

Houston took the arguments on the issue under advisement, but did not say when he would issue a ruling.

This story ran on page B8 of the Boston Globe on 8/6/2003.
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