AUSTIN — Republican Greg Abbott, already denounced by his Democratic rival for ruling against a rape victim while on the Texas Supreme Court, sided against three other women who sued in sexual assault cases.
In five cases in which the victims had sued the assailant or a company for negligence in the attacks, Abbott decided against four during his tenure as a high court justice from 1995 to 2001, a review by The Dallas Morning News shows.
Abbott’s judicial actions have become a focal point in the race for governor, used by Democrat Wendy Davis in her first TV ad blasting him for favoring a business over a rape victim trying to sue that company.
Davis’ campaign said his decisions show a disturbing mind-set, “a consistent pattern of ruling against Texans who need him and for his old insider network.”
Abbott, elected attorney general after serving on the court, condemned the ad as a “desperate attack.”
“The role of a judge is not to create laws, but rather to rule based on existing law, which is exactly what Greg Abbott did in every case that came before him,” said his spokeswoman, Amelia Chasse.
The noisy clash in a race that’s just entered its final 90-day stretch signals Davis’ efforts to energize moderate female voters, key to her election strategy in the GOP-heavy state.
Abbott has sought to fend off Davis’ allegations and highlighted his push for state programs that his office says have helped thousands of sexual assault victims.
The political debate over treatment of rape victims burst into public late last week when Davis’ TV spot recounted the 1993 rape of a Seguin woman by a door-to-door vacuum cleaner salesman, who had a criminal conviction as a sexual offender. An independent Kirby Co. contractor had recently hired the salesman and dispatched him but did not perform background checks.
She sought to sue Kirby in addition to its contractor. The Supreme Court voted 6-3 that she could do so, but Abbott said in a separate dissent that Kirby “owed no duty” to the woman. She won $160,000, according to the suit.
1999 case
Beyond the Kirby vacuum dispute, Abbott wrote an opinion in a 1999 case that fractured the court and made it more difficult for a rape victim to sue a property owner, according to The News’ review of his legal decisions.
In that case, an on-duty Houston police officer abducted a woman at 3 a.m., taking her to an unattended parking garage and repeatedly assaulting her.
She sued the parking garage owner, Mellon Mortgage Co., saying it took no precautions against criminal activity — not even a chain across its entrance.
Evidence showed the garage had become a hangout for vagrants, and employees had complained about the lack of security and crimes on the property.
In the two years before the rape, 190 violent crimes, including rape and murder, had been reported near the garage.
Abbott wrote in the opinion that owners could have foreseen the potential of a rape on their property. But he also found the victim could not sue because property owners don’t have a universal duty to protect uninvited people.
The outcome prompted heated legal discussions.
Critics said Abbott, to get around legal precedent, had created a new doctrine to protect the property owners from a lawsuit. Supporters applauded Abbott’s argument that said secluded property owners — be they 24-hour laundromats or rural landowners — could otherwise have become liable for criminals who use their property.
In another case, Abbott decided against a young woman who said she had repressed memories of her father assaulting her. When she recalled, with the aid of a therapist, it was too late to file a suit.
She was four months past the two-year statute of limitations. She argued the time limitation should have started from her recollection of the attack, but the court ruled against her.
In her dissent, Justice Priscilla Owens, a Republican, said the court repeatedly had “steadily eroded” the hard timelines governing statute of limitations, especially in cases where victims were late in discovering the wrongdoing. Given that history, she argued, sexual assault should merit an exception.
In 2007, 11 years after the case, the Legislature changed the law because of repressed memory cases, extending the statute of limitations in such cases to five years.
‘A red flag’
Lavinia Masters, who was raped as a child and has become an advocate for victims, said it takes courage for victims to come forward to force businesses and others to take responsibility in such instances.
“It’s about bringing awareness,” said Masters of Dallas. “They want some sort of accountability, and anyone who doesn’t see that — I don’t get it.”
Masters, who met Davis when the Fort Worth senator was championing a bill to get a backlog of rape kits tested, is supporting her for governor and accompanied her on a campaign stop Tuesday in Dallas. Masters said she also has worked with U.S. Sen. John Cornyn and other Republicans.
She said the number of cases in which Abbott has ruled against the victim “sets off a red flag.”
“There are things you can do. You can change the laws, or you can use the law as an excuse,” Masters said.
When Abbott first ran for attorney general, he defended his decision-making on the cases. He also said then that he planned to require law firms doing business with the state to provide 15 hours of free legal help to victims of sexual assault and domestic violence.
After 12 years as attorney general, that has not happened. But Abbott’s office said he has instituted larger and more sweeping programs that have aided thousands of victims.
“Instead of partnering with a small set of lawyers doing business with the state, General Abbott found much more powerful and profound ways to attack the problem by deploying his own army of programs and solutions,” said spokeswoman Lauren Bean.
She cited the office’s work to certify and train nurses who deal with sexual assault victims. It also has a fugitive unit that collaborates with law enforcement to target sexual offenders who have violated terms of their parole.
“As attorney general, Greg Abbott has continued to seek out any and all opportunities to help victims of sexual assault,” Bean said.
Follow Christy Hoppe on Twitter at @christyhoppe.
AT A GLANCE: COURT RULINGS
Greg Abbott’s decisions in sexual assault liability cases while on the Texas Supreme Court:
Golden Spread Council, Boy Scouts of America, 1996
A Boy Scout council received a report that one of its scoutmasters had molested boys. The council was accused of failing to investigate thoroughly, and it later recommended him as scoutmaster to a church. He later molested a child in that troop and was sent to prison. Abbott joined the court’s 8-1 majority saying the victim’s mother could sue the Boy Scout council.
S.V. vs R.V., 1996
A young woman claimed her father molested her but she had repressed the memory until her early 20s, when she was in therapy. The two-year statute of limitations to bring a lawsuit had passed. She argued the clock should have begun running from when she accessed her memory, not from the last incident of abuse. Abbott joined with the 8-1 majority denying the woman the right to sue.
Timberwalk Apartments, 1998
A rapist entered a sliding glass door and sexually assaulted a renter. She sued the Houston apartment complex for failing to provide proper security, including better lighting, guards, access gates and pin locks for sliding glass doors. In a unanimous opinion, the court denied her suit, saying the absence of crime in the area did not make the rape a foreseeable circumstance.
Mellon Mortgage Co., 1999
A woman was abducted, taken to an unattended parking garage and raped repeatedly. She sued the garage owners for negligence. It had become a hangout for vagrants and employees had complained that “people are free to roam through there, obviously committing crimes.” In the two years before the rape, 190 violent crimes had been reported near the garage.
Abbott wrote the opinion, saying that unlike the Timberwalk case, the rape was foreseeable. But the opinion denied the victim the right to sue, saying property owners don’t have a universal duty to protect uninvited people.
His opinion split the court. It was joined by two justices; two others wrote concurring opinions, agreeing with the outcome but not how he arrived there. Three justices dissented. One justice did not participate.
Scott Fetzer Co., doing business as The Kirby Co., 1998
A Kirby vacuum contractor hired Mickey Carter as a door-to-door salesman without doing a background check. Carter had been convicted of indecency with a child and had a history of inappropriate sexual behavior. Shortly after being hired, Carter raped a customer in her home. She sued Kirby, which requires in-home sales but hadn’t mandated safeguards to keep dangerous people from its sales force. In a 6-3 decision, the court said the woman had the right to sue. Abbott wrote a dissenting opinion, saying she should only be allowed to sue the contractor.
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