Two gay men, accused as rapists, charge anti-violence group botched a fake complaint
A state appeals court heard the case of two gay men who sued the New York City Gay and Lesbian Anti-Violence Project (AVP) charging the victims’ services agency was negligent when it aided a third man in bringing rape charges against them.
“We’re arguing that because [AVP] took actions they created a duty,” said Paul Galatowitsch, one of the two men, at an October 17 hearing. “When they took those actions, they violated professional standards.”
A central issue in the suit has been whether or not AVP had a responsibility to Galatowitsch and Raul Perez, the other accused man, similar to the duty a social worker or a doctor owes to a client to use a certain standard of care. The two men have to show that the duty had been breached and that they had been harmed.
On July 10, a lower court dismissed the suit saying that AVP did not even have a relationship with the two men let alone a duty to them. The lower court, while sympathetic to Galatowitsch and Perez, also said that requiring a victim’s services agency to check the truthfulness of its client’s claim or to contact accused parties before aiding a client would make its work impossible.
The case stems from a 1998 sexual encounter that Galatowitsch and Perez had with a third man. Galatowitsch and Perez say that the sex was consensual while the third man says it was not. Roughly one week after the encounter, the third man went to AVP and claimed he had been raped. With AVP’s assistance, he filed a criminal complaint on December 11, 1998.
Galatowitsch voluntarily surrendered for his arrest though the charges against him were dropped in 1999. Despondent over the case, Perez attempted suicide in early 1999 and he was never charged.
The two men sued earlier this year. The appeals court justices pressed Galatowitsch who was representing himself and Perez before the court.
“That duty can’t go in two directions,” said Justice Joseph P. Sullivan. “Their sole obligation is to their client.”
Sullivan added that the recourse for Galatowitsch and Perez was to sue for malicious prosecution. Malicious prosecution alleges that an unsuccessful criminal proceeding was brought without probable cause and with malice. They could not bring such a suit because the one-year statute of limitations had passed. A malicious prosecution suit might have named the third man, the police, and prosecutors.
“Wasn’t the prosecution brought by a government agency?” asked Justice Richard T. Andrias. “Salaried professionals in a prosecutor’s office made a decision to go forward.”
Andrias also questioned whether a victims’ services agency could function if it were obliged to investigate the claims made by its clients.
“They are supporting someone who is making a claim,” Andrias said. “I am not sure how a non-profit agency replicates the function of law enforcement.”
The justices seemed intrigued when Galatowitsch asserted that AVP had violated the ethics and laws that govern social workers. At that point all five justices quickly began scanning the briefs filed in the case.
Joseph Evall, AVP’s lawyer, an AVP board member and a partner at Orrick, Herrington and Sutcliffe, a law firm, had filed a roughly 40-page brief, but he did not address the court. Afterwards, he said he was pleased with the hearing.
“I think it went very well,” he said. “The judges, of course, are completely familiar with New York’s negligence law which is very clear and very well settled. The judges made clear from their questions to [Galatowitsch] that they completely understood the issues.”
Galatowitsch was also pleased with the hearing.
“I tried to get them to understand that certified social workers have duties and AVP violated those duties,” he said. “One of the things I was disappointed about was AVP refused to defend its negligence.”
The other justices at the hearing were Eugene Nardelli, Angela M. Mazzarelli, and Alfred D. Lerner of the state’s appellate division.
