Russell v. Chenevert

621 F.Supp.3d 104

Julia RUSSELL, Plaintiff, v. Phillip Augustus CHENEVERT, II, Defendant.

No. 2:21-cv-191-JAW

United States District Court, D. Maine

Signed August 8, 2022

Taylor Andrew Asen, Meryl E. Poulin, Gideon Asen LLC, New Gloucester, ME, for Plaintiff.

Gene R. Libby, Tyler J. Smith, Libby O'Brien Kingsley & Champion, LLC, Kennebunk, ME, for Defendant.

ORDER ON MOTION IN LIMINE

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

A plaintiff has filed a lawsuit against a person she says sexually abused her when she was young. Applying the provisions of Federal Rule of Evidence 415 and First Circuit caselaw, the Court grants the plaintiff's motion in limine to admit the testimony of two other women who are prepared to testify that this defendant committed similar acts of sexual abuse against them when they were young.

I. BACKGROUND

A. Procedural Background

On July 9, 2021, Julia Russell filed a complaint in this Court against Phillip Augustus Chenevert, II, contending that between 1992 and 1994, when she was between six and eight years old, Mr. Chenevert sexually abused her. Compl. (ECF No. 1) (Compl.). Mr. Chenevert denies that he committed the alleged abuse. Answer (ECF No. 18) (Answer). Ms. Russell has sued Mr. Chenevert for assault and intentional infliction of emotional distress. Compl. ¶¶ 19-26. In addition to compensatory damages, Ms. Russell seeks punitive damages. Id. ¶ 26.

On May 20, 2022, Ms. Russell filed a motion in limine, seeking a court order allowing the admission into evidence of similar acts of child molestation allegedly perpetrated by Mr. Chenevert against two other females when they were young. Mot. in Lim. to Admit Evid. of Similar Acts of Child Molestation and Notice of Intent to Use Such Evid. (ECF No. 30) (Pl.'s Mot.). On June 10, 2022, Mr. Chenevert objected to the admission of this evidence. Def.'s Resp. to Pl.'s Mot. in Lim. to Admit Similar Acts of Child Molestation (ECF No. 32) (Def.'s Opp'n). On June 16, 2022, Ms. Russell filed a reply. Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. in Lim. to Admit Evid. of Similar Acts of Child Molestation (ECF No. 33) (Pl.'s Reply).

B. Factual Background

1. The Allegations in the Complaint and the Answer

In her Complaint, Ms. Russell alleges that Mr. Chenevert had grown up with her father. Compl. ¶ 11. In 1992, Mr. Chenevert moved from Massachusetts to Biddeford Pool, Maine. Id. ¶ 11. Mr. Chenevert owned and operated Dr. Volvo, a used car dealership in Arundel, Maine. Id. ¶ 8. The Russell family lived in Saco, Maine, and Mr. Chenevert regularly came to visit the Russells. Id. ¶¶ 6, 13. Ms. Russell alleges that between 1992 and 1994, when Ms. Russell was between six and eight years old, Mr. Chenevert repeatedly sexually abused her. Id. ¶ 17. Ms. Russell alleges that Mr. Chenevert abused her at her home in Saco, at his home in Biddeford Pool, in his boat while moored at Biddeford Pool, and in his office at Dr. Volvo. Id. Ms. Russell acknowledges that she "kept the abuse a secret for decades," id. ¶ 2, but that she had decided to "come forward and hold her abuser accountable." Id. ¶ 3. As noted earlier, Mr. Chenevert denies that he committed the alleged abuse. Answer ¶¶ 1-23.

2. The Bill Nemitz July 25, 2021, Portland Press Herald Article

On July 25, 2021, Bill Nemitz, a Portland Press Herald columnist, published a four-page article entitled, "For almost three decades, she kept her secret. No longer." Pl.'s Mot. Attach. 1, Bill Nemitz: For almost three decades, she kept her secret. No longer. at 1-4. The Nemitz article contained details about Ms. Russell's allegations against Mr. Chenevert and encouraged victims of sexual violence to report the violence. Id. at 2.

3. Rebecca Schick's July 25, 2021, Email to Bill Nemitz

During the evening of July 25, 2021, the day that the Nemitz article appeared, Rebecca Schick emailed Mr. Nemitz, stating that she too had grown up in Biddeford Pool and had been sexually abused for many years by Mr. Chenevert. Pl.'s Mot. Attach. 4, Rebecca Schick Email to Bill Nemitz (Jul. 25, 2021). She asked Mr. Nemitz to pass along this information to Ms. Russell's family and said she would be willing to testify in court. Id.

4. Alex Hennedy's July 26, 2021, Email to Julia Russell

The next day, July 26, 2021, Alex Hennedy directly emailed Julia Russell. Pl.'s Mot. Attach. 5, Alex Hennedy Email to Julia Russell (Jul. 26, 2021). Ms. Hennedy wrote that she too had been molested by Mr. Chenevert, that their stories were similar, and that she was "willing to tell my experience to anyone and everyone in order to support your case against him." Id. at 1.

II. THE PARTIES' POSITIONS

A. The Plaintiff's Motion in Limine

In her motion in limine, Ms. Russell seeks a pretrial order, confirming the admissibility under Federal Rules of Evidence 415(a) and 404(b) of the testimony of Ms. Schick and Ms. Hennedy about acts of sexual molestation by Mr. Chenevert similar to those alleged by Ms. Russell. Pl.'s Mot. at 1.

Ms. Russell alleges that Mr. Chenevert sexually abused her when she was between six and eight years old (between 1992 and 1994). Id. at 4. She said that it "started as horseplay. Phil liked to chase us around and tickle us and I remember him tickling me and lifting me up and putting my crotch to his mouth and blowing hot air through my pants." Id. (quoting Id. Attach. 3, Dep. of Julia Russell at 44:17-20) (Russell Dep.). Ms. Russell says that the abuse "escalated over time" and that Mr. Chenevert performed sexual acts on her, including asking Ms. Russell to touch his penis, placing his penis against her buttocks, and performing oral sex on her. Id. Ms. Russell recalls being abused on Mr. Chenevert's boat and at his business, Phil's Auto Center. Id. at 4-5.

Ms. Schick's family moved to Biddeford Pool in January 1993,¹ when she was about seven. Id. at 5 (citing Attach. 9, Dep. of Rebecca McHenry Schick at 5:22-27; 6:12-16) (Schick Dep.). The summer after they moved to Maine, Ms. Schick's parents met Mr. Chenevert at a party, and Mr. Schick became a close friend of Mr. Chenevert. Id. (citing Schick Dep. at 17:15-25). Mr. Chenevert sexually abused Ms. Schick when she was between the ages of eight and twelve. Id. (citing Schick Dep. 12:24-13:3; 13:8-11). Ms. Schick states that their relationship began friendly but developed into a more intimate sexual one. Id. (citing Schick Dep. at 10:9-18). Mr. Chenevert asked Ms. Schick to kiss him "on the lips with tongue." Id. (quoting Schick Dep. at 10:22-11:5). Subsequently the conduct escalated with each touching each other's genitals and performing oral sex on each other. Id. (citing Schick Dep. at 12:15-23). Mr. Chenevert's sexual abuse took place at his home, at his business and on his boat. Id. at 6 (citing Schick Dep. at 13:15-19).

Ms. Hennedy's parents were friends of Mr. Chenevert when she was a child. Id. at 6. In 1997, when Ms. Hennedy was about eight years old, Mr. Chenevert was sitting on a couch with her at Ms. Hennedy's home, when he "slipped his hand down the neck of my shirt and fondled my breasts." Id. Attach. 2, Dep. of Alexandra Hennedy at 12:18-13:4, 18:7-13) (Hennedy Dep.). Ms. Hennedy reported the encounter to her mother and Mr. Chenevert was not allowed to be with Ms. Hennedy alone. Id. at 7. Then, in 1999, when Ms. Hennedy was nine or ten years old, Mr. Chenevert demanded a kiss from Ms. Hennedy and she felt his tongue in her mouth. Id. (citing Hennedy Dep. at 18-21-19:6). After that Ms. Hennedy avoided Mr. Chenevert "like the plague" and no other incidents of abuse took place. Id. (quoting Hennedy Dep. at 26:7, 28:3-6).

Discussing caselaw on Rules 415 and 404(b), Ms. Russell urges the Court to admit the testimony of both Ms. Schick and Ms. Hennedy. Id. at 7-14.

B. The Defendant's Opposition

In response, Mr. Chenevert first challenges Ms. Hennedy's description of the incident. Def.'s Opp'n at 1-3. Mr. Chenevert points out that Ms. Hennedy's mother recalled the incident as a tickling and that she told Mr. Chenevert not engage in "tickle games" with Ms. Hennedy in the future. Id. at 2-3 (quoting Attach. 1, Dep. of Christiane Provencher-Hennedy at 10:12-13:8) (Provencher-Hennedy Dep.). Mr. Chenevert argues that the tickling incident was non-sexual and that as of eight years old, Ms. Hennedy had not yet experienced any breast development. Id. at 3. As regards Ms. Schick, Mr. Chenevert points out that Ms. Schick's recollection of these events is imperfect, and he notes that she has struggled with substance abuse issues. Id. at 3-4. Mr. Chenevert argues that this evidence should be excluded under Rule 403 as more prejudicial than probative. Id. at 4-8.

C. The Plaintiff's Reply

In her reply, Ms. Russell disputes Mr. Chenevert's argument that because Ms. Hennedy had not experienced any breast development at age eight, his actions in touching her chest could not amount to something sexual or within the purview of Rule 415. Pl.'s Reply at 2. She also disagrees with Mr. Chenevert's assertion that tickling cannot be sexual. Id. at 2-3. Ms. Russell observes that Mr. Chenevert's attempts to discredit the recollections of Ms. Schick and Ms. Hennedy are the subject of cross-examination rather than exclusion. Id. at 3-5.

III. DISCUSSION

A. The Definition of "Breast" Incorporated Within Rule 415

Federal Rule of Evidence 415(a) provides:

(a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.

FED. R. EVID. 415(a). Rule 415(a)'s reference to Rule 414 incorporates the definition of child and child molestation contained in its criminal law counterpart:

(d) Definition of "Child" and "Child Molestation." In this rule and Rule 415:

(1) "child" means a person below the age of 14; and

(2) "child molestation" means a crime under federal law or under state law (as "state" is

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