Is the problem that you think it will be hard to prove fraud? (It usually is.) Or that you don't even see a possible fraud cause of action? Are you saying that making a fraud claim would violate Rule 11? Or that it would not survive a 12(b)(6) (is that still the right number?) motion to dismiss for failure to state a claim?
States vary on what is required to prove fraud, especially with respect to the level of knowledge of the falseness required. Some states even recognize innocent misrepresentation as a claim. Some states will use a knew-or-should-have-known standard.
Fraudulent concealment is generally a fact issue -- including deciding whether under the facts as presented the duty arose. In some cases as a matter of law there is no duty. In others as a matter of law there is a duty.
A defense based on the repentant priest theory would be a fact-based defense and for the finder of fact to decide, it seems to me. The church can't simply say "I thought he was repentant" and require the court to accept that without challenge. The court may choose to believe it and decide (a) that it is a defense or (b) that it is not a defense (i.e., there is still a duty to disclose even if the church believed the genuineness of the repentance).
Failure to speak when one has a duty to allows an inference of representation of the facts being other than they are.
None of this is easy to prove in court, of course. Indeed, fraud must even be plead with particularity.
But proof problems are quite different from the possibility of such a claim being asserted lawfully.
Steve
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Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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