Rivera v. Rivera

• Decision Date: 13 May 2003
• Docket Number: No. 01-2335 JPO.,01-2335 JPO.
• Citation: 262 F.Supp.2d 1217
• Parties: Marco RIVERA, Plaintiff, v. Henry RIVERA, Defendant.
• Court: U.S. District Court — District of Kansas

262 F.Supp.2d 1217

Marco RIVERA, Plaintiff, v. Henry RIVERA, Defendant.

No. 01-2335 JPO.

United States District Court, D. Kansas.

May 13, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas F. McGraw, III, Thomas F. McGraw III, Chartered, Mark C. Owens, Overland Park, KS, for Defendant.

Donald M. McLean, Hayes & Kjeler, L.L.C., Overland Park, KS, for Plaintiff.

MEMORANDUM AND ORDER

I. Introduction.

This is a sexual battery lawsuit.¹ In August 2002, following a three-day trial, the jury returned a verdict in favor of the defendant, Henry Rivera. The plaintiff, Marco Rivera, has filed a motion for new trial (doc. 48). The court, having carefully reviewed plaintiffs motion and supporting memorandum, defendant's memorandum in opposition (doc. 50), plaintiffs reply memorandum (doc. 53), and the trial transcript (docs. 54, 55, & 56), now is prepared to rule.² As explained below, the court will grant plaintiffs motion and set this case for a status conference to discuss scheduling a new trial.

II. Factual Background.

Enrique Rivera and his first wife, Carmen Munoz, had three children, namely, Blanca, Miriam, and Henry Rivera. Subsequently, Enrique and his second, common-law wife, Lucia Rivera, had seven more children, namely, Alex, Siboney, Lidia, Elizabeth, Marco, Magdalena, and Julio Rivera:. Highly summarized, this civil lawsuit involves the contention of plaintiff Marco Rivera that he was.sexually abused many years ago by his older half-brother, defendant Henry Rivera.

Specifically, Marco contends that he was forcibly and repeatedly sodomized by Henry during a period of several months in the spring and summer of 1988 when Marco was seven years old and Henry was twenty years old. By the time of trial in August 2002, both Marco and Henry of course were adults.

Marco testified that he did not report the incidents of abuse to his parents, siblings, or anyone else because Henry had threatened to "beat the shit out of him if he told anyone. Eventually, however, Marco's mother, Lucia Rivera, discovered some disturbing blood stains in Marco's underwear while she was doing the family laundry. Lucia questioned Marco about the blood, examined his rectal area and, in October 1988, took Marco to the hospital.

At the hospital, Marco was diagnosed with and treated for venereal warts that may have been sexually transmitted. The visit to the hospital understandably spurred law enforcement officials to inquire into the origin of the venereal warts. Ultimately, Henry was arrested for and charged with aggravated criminal sodomy and indecent liberties with a child in the District Court of Wyandotte County, Kansas. Marco testified in this civil trial that, after the sexual abuse was discovered Marco thought Henry-was going to kill him.

For approximately the next two years after Henry was first charged criminally, Marco, went to counseling sessions with Paula Kahmann, a mental health counselor employed; by the Wyandotte County Mental Health Center. During these counseling sessions, Marco frequently discussed in detail episodes of abuse inflicted by Henry. However, on one occasion, on April 4,1989, Marco told Kahmann, "I made it up." At trial, Marco explained that he told Kahmann this because his father, Enrique, had told him to do so. Marco was terrified of his father, explaining, "If you didn't do what he said, he'd basically beat the hell out of you."

At trial, Henry denied that he ever had sexually abused Marco. Also, Henry testified that, for approximately six weeks before the abuse of Marco was discovered, Henry had been residing with his mother, Carmen Munoz, and not in Enrique and Lucia Rivera's home in Kansas City, Kansas where Marco lived and where the sexual abuse allegedly occurred. Henry explained that his father, Enrique, essentially "arranged" things so that Henry had to accept responsibility for the abuse. According to Henry, Enrique and Lucia "handled everything" after the venereal warts were discovered and Henry had "no say-so on what was going on." Enrique supposedly did not want Henry to go to jail and, ultimately, Henry entered into a diversion agreement, pursuant to which the above-described criminal charges later were dismissed after Henry completed a probationary period. Enrique paid for Henry's lawyer and also gave Henry money to pay the Wyandotte County Mental Health Center, which apparently was a requirement of Henry's diversion agreement. Although there was a nocontact order prohibiting Henry from having contact with Marco during the time period immediately following the discovery of the alleged sexual abuse, Enrique and Lucia routinely permitted Henry to be around Marco.

As part of Henry's diversion agreement, he was required to attend group and private therapy sessions on a weekly basis for two years. Kahmann also was Henry's mental health counselor. During one of these counseling sessions, Henry told Marco. "I am sorry for what I did to you." Heru*y explained that he had been told that He merely needed to apologize to Marco in wrier to "get on with [his] diversion." Kahmann, however, testified that she never doubted that Marco had been sexually abused, and further that she never doubted that Henry in fact was the perpetrator who had sexually abused Marco.

Enrique, an uneducated man, was a successful entrepreneur. Despite success in this respect, the uncontroverted evidence of both parties demonstrated that Enrique, a former small-time professional boxer and street fighter in Mexico, was an extremely dominating and controlling man who often physically, mentally, and sexually abused his children as well as his second, commonlaw wife, Lucia.

For example, on one occasion, Lucia was in the process of leaving Enrique and taking her children with her. During this incident, Enrique tried to throw one of his sons, Alex, into a brick wall. Then, Enrique and Alex were literally fighting over physical control of Julio, who was a baby at the time; both Enrique and Alex let go at the same time and dropped Julio, fracturing Julio's skull. Enrique then tried to shoot at his family with a gun as they were running down the street away from him. Other times, when Lucia would express concern that her daughters were not safe from Enrique, he would put a gun to her head or beat her.

According to Henry, Enrique once struck him in the face with a gun and broke his nose. Indeed, Henry testified that Enrique broke his nose several times. Enrique once even struck Henry in the head with a hammer. On other occasions, Enrique hit Henry with a board, a whip, a branch, and a belt. He once threw Henry into a wood stove. When Henry was about sixteen years old, Enrique hit him in the leg with a pipe and he was hospitalized for three weeks.

Enrique also was prone to inflicting physical abuse on Marco, though not as severely as he would beat Henry. According to Marco, he was beaten frequently by Enrique with a leather belt.

Enrique often beat his daughter, Miriam. She testified that Enrique punched and kicked her. He gave her black eyes and once broke her nose. After Enrique broke her nose, Miriam asked him to take her to the hospital, but he refused. Finally, about one week later, Enrique dropped Miriam off at Truman Medical Center in Kansas City, Missouri and told her to tell the people at the hospital that some wood pallets had fallen on her while she was working in Enrique's pallet shop. Personnel at the hospital implored Miriam to tell them the truth. But Miriam did not want to get beaten again after she was released from the hospital, and accordingly she told hospital personnel that the pallets had fallen on her. Miriam testified that Enrique physically abused her, on average, approximately three times per week for many years.

In addition to being physically abusive, Enrique was verbally and mentally abusive. Evidently unimpressed with Henry's academic potential, Enrique mandated that Henry drop out of school during his first semester of high school and then put him to work in the family business. Henry worked approximately six days per week, fourteen hours per day, repairing crates, pallets, and "skids.".

Similarly, Enrique removed Miriam from school when she was fourteen years old after she had completed the sixth grade. Enrique put Miriam to work in the family restaurant, cooking and washing dishes from 6:00 a.m. until the bar closed, which was often around 11:00 p.m. or midnight. After the restaurant closed in 1983, Enrique put Miriam to work in the shop repairing pallets and skids. Miriam worked in the shop for four or five years, and then assisted Enrique in fixing up houses by putting up sheetrock, fixing toilet seats, painting, etc.

The evidence at trial was uncontroverted that Enrique sexually abused at least two of his six daughters. Miriam testified that her sexual relationship with her father began when she was fourteen or fifteen years old. Based on Miriam's birthdate, this would have been in approximately 1980 or 1981. Enrique started by "playing around" and touching Miriam, and later he made her perform fellatio. The two had sexual intercourse, both vaginal and anal. This sexual activity occurred in the family home and in the pallet shop next door. Miriam testified that Enrique's preferred method of intercourse was anal, and that she had intercourse with Enrique on "hundreds of occasions." Miriam testified that her father's sexual abuse of her slowed down in 1988.

Siboney testified that Enrique began sexually abusing her when she was only five or six years old. Based on Siboney's birthdate, this would have been in approximately 1975 or 1976. Enrique would fondle Siboney while he masturbated. This occurred during a period of five or six years, but then Siboney started to refuse and fight Enrique. When Siboney was ten or eleven years old, Enrique started forcing her to perform fellatio. She testified: "That happened for a long time." When Siboney was thirteen or fourteen, Enrique attempted to force her.to...