Sister Irene Morissette always locked her door at night. Maybe it was force of habit from her decades teaching at an isolated missionary school in Africa, or maybe it was, as she told a police detective later, just that she didn’t want “anyone coming in.”
Either way, there was no sign of forced entry on June 23, 2014, when the 87-year-old Catholic nun told a staffer at Chateau Vestavia, an assisted-living facility near Birmingham, Ala., that she’d been raped in her bed the night before.
Police and medical records paint a disturbing scene. Police investigators found two semen stains in Morissette’s bed and blood on the “inside rear area” of her green-and-pink-flowered pajama bottoms, which had been shoved underneath the mattress. A sexual-assault examiner at a local hospital reported that Morissette had sustained multiple abrasions inside and outside her vaginal canal, wounds that could be consistent with rape. “The genital exam was very painful for the client,” the examiner’s report said.
In the days after the alleged rape, Morissette told police that she remembered someone pinning her 5-ft. 2-in., 140-lb. frame to the bed by her shoulders. She recalled the “terrible experience of being penetrated,” according to a recorded police interview reviewed by TIME. “I was so scared,” she said. But when her attacker left, she didn’t summon a staff member for help. “She was afraid to call anyone,” an examiner wrote later, “because she was afraid that the assailant would be the one to come back to her room.”
Under normal circumstances, justice would be rendered for Morissette, and society, in a court trial. There would be a public hearing in which a judge or jury would weigh evidence, determine guilt or innocence and levy appropriate penalties through the due process of law. But Morissette’s case, details of which have not previously been made public, never made it to court. After a criminal investigation by local police failed to produce enough evidence to identify a suspect in the alleged attack, Morissette’s family tried to file a civil suit against Chateau Vestavia, alleging everything from negligence to outrageous conduct. They felt there was plenty of evidence to back up those charges. The semen on the nun’s bedsheets was enough to suggest sexual contact, and Morissette, because of her dementia, could not legally consent to any sexual act. But none of it would see the light of day in a courtroom.
Back in 2011, when Morissette first came to Chateau Vestavia, she had signed the facility’s standard admissions contract. Buried in pages of terms and conditions was what is known as a pre-dispute binding arbitration agreement. By signing it, the elderly nun gave up her Seventh Amendment right to trial by jury and any right to bring a civil suit against Chateau Vestavia or its then parent company, Trinity Lifestyles Management, for any reason and at any time in the future.
More than a million other elderly Americans may have waived away their rights in the same way Morissette did. While no organization tracks the precise number of facilities that ask residents to sign pre-dispute arbitration agreements, several experts on arbitration told TIME that roughly half the 2.5 million Americans in nursing homes or senior living centers are likely bound by them. Legal advocates who work on behalf of seniors estimate that as many as 90% of large nursing-home chains in the U.S. now include arbitration agreements in their admissions contracts.
The number is likely to increase in the coming years. In June, the Trump Administration proposed a new rule that would allow nursing homes to require residents to sign arbitration agreements as a condition of admission to a facility: either sign it or find somewhere else to live. With the number of elderly Americans projected to double over the next 30 years, mandatory arbitration clauses in nursing homes will likely affect millions of people. Which means some may find themselves in the same private system of dispute resolution that Morissette and her family fell into.
With arbitration, there is no courthouse, no judge and no jury. There are no requirements to follow state or federal rules on procedure, and effectively no appeals process. Whatever the arbitrator decides is almost always final. Says Brian Lee, a former long-term-care ombudsman for the Florida state government: “People have no idea this is happening.”
Morissette was 84 when she decided to move into Chateau Vestavia. Her knees ached from years spent in prayer, and she worried she could no longer climb the stairs to her apartment in a suburb nearby. She also liked that the facility’s grassy grounds included a chapel. But within a couple years, Morissette’s health declined precipitously. She was moved from the facility’s assisted-living area to its ward for people suffering memory loss. Morissette’s sister, with whom she was close, became her legal guardian. (Morissette’s sister and three nieces, her closest family members, asked not to be named in this story to protect their privacy.)
It’s unclear whether Morissette understood what she had agreed to when she signed the admissions contract back in 2011. No one in her immediate family had legal expertise on arbitration. It was only after the alleged rape, when her nieces decided to bring a lawsuit, that the company told them they were legally barred from proceeding. They were, instead, directed to arbitration.
Arbitration was originally designed under U.S. law as a tool for businesses to resolve disputes quickly, without involving the courts. But over the past 30 years, it has expanded. Beginning in the Reagan era, judges decided that the 1925 Federal Arbitration Act didn’t apply just to corporate contracts but rather to contracts of any kind–including those between businesses and their customers, doctors and their patients, and employers and their employees. Since at least as far back as 1997, nursing homes in the U.S. have included pre-dispute arbitration clauses in their admissions contract, according to a 2009 study by the American Health Care Association (AHCA), an industry lobbying organization. Now asking the elderly to sign arbitration agreements has become standard industry practice.
To supporters, including powerful business groups like the U.S. Chamber of Commerce, this is a boon. Arbitration, after all, offers a system of dispute resolution that yields fewer cases and can result in smaller payouts. Long-term-care claims subject to arbitration settle for 7% lower total cost to the business and three months sooner than claims resolved without arbitration, according to a 2015 analysis by Aon Risk Solutions. Critics paint a grimmer picture. They say arbitration agreements impede fair trials, limit workers’ bargaining power and cripple class actions, making it nearly impossible for customers to hold companies accountable.
Democrats backed by trial lawyers and consumer-rights groups have traditionally opposed arbitration. But as a wave of populism has swept across the Republican Party and challenged the GOP’s pro-business wing, some grassroots conservatives are speaking out against the practice too. “This is blatantly a sellout to the big CEOs and the Wall Street guys,” says Kenneth Connor, a self-described conservative and a South Carolina trial attorney. Former Fox & Friends host Gretchen Carlson became an outspoken critic in 2016 after a pre-dispute arbitration clause in her employment contract barred her from suing Fox News over sexual-harassment claims. (She settled a suit filed against Roger Ailes alone.)
People who sign arbitration agreements often don’t even realize what they’ve done. A 2015 federal government study found that less than 7% of people who’d signed an arbitration agreement as part of a credit-card contract understood that it meant they forfeited their right to sue the company in the future. That same year, researchers at St. John’s University School of Law asked nearly 700 people to read a seven-page contract with an arbitration clause containing a class-action waiver, highlighted in bold, capital letters. Less than 9% of respondents correctly described what it did. The challenge of understanding the fine print is even more acute at nursing homes, where about half of residents have dementia, according to the National Center for Health Statistics. Checking into a nursing home is “one of the hardest, most emotional times in anyone’s life,” says Sarah Rooney, a director at the American Association for Justice, a plaintiff-litigation advocacy group. “And at that moment, you say, ‘Oh, and initial here to waive your constitutional protection.’ No problem.”
But the nursing home and long-term-care industry has a lot at stake: $275 billion in revenue every year. And it has spent a lot of time and money defending those profits. The AHCA, which represents 13,500 facilities nationwide, has been particularly aggressive in its opposition to proposed rules and legislation that would limit the scope of arbitration. In the past decade, the organization has spent nearly $26 million lobbying members of the Senate and House as well as federal agencies on this and other issues, according to the Center for Responsive Politics.
In September 2016, the Obama Administration issued a rule barring nursing homes from asking residents or their guardians to cede their right to a civil suit prior to a dispute. The AHCA and other long-term-care groups sued, claiming the new rule amounted to federal overreach. The industry won. In November 2016, a federal judge in Mississippi preliminarily blocked enforcement of the Obama-era rule. Seven months later, the Trump Administration proposed a new one that was even more to the industry’s liking. Not only can nursing homes include mandatory pre-dispute arbitration clauses, they can turn away prospective residents if they refuse to sign.
Industry backers described the new Trump rule as no big deal. “If someone doesn’t want to sign it, they don’t have to,” says Matt Webb, a senior vice president at the U.S. Chamber Institute for Legal Reform. “They can find another nursing home.” But critics, including Kelly Bagby of AARP Foundation Litigation, see it as an “unmitigated disaster.” Finding another home is not so easy, AARP argues: for one thing, nursing-home residents often need to be within driving distance to family and can’t easily shop between facilities.
Sister Morissette’s arbitration hearings unfolded over the course of a week and a half in March 2017 in a small conference space, no bigger than a hotel room, at a Marriott off Highway 280 in Birmingham. The arbitrator was Phillip Adams, a former Alabama municipal judge who has practiced arbitration since 1996. On most days, Morissette’s nieces sat in the back of the room in a row of chairs, near a table with soft drinks and water.
Reed Bates, one of Chateau Vestavia’s lawyers, worked to sow doubt about Morissette’s allegations, according to a 39-page legal memorandum he submitted to the arbitrator in the case. He called a forensic nurse and a geriatric psychiatrist to testify that they did not believe Morissette had been raped, according to the memorandum, which the plaintiff’s lawyer allowed TIME to review. Bates also called witnesses to testify that they had heard rumors that Morissette masturbated, according to Cameron Hogan, Morissette’s lawyer. During questioning, Bates suggested that the nun might have caused her own vaginal abrasions, according to Hogan. The defense also speculated about how semen stains had ended up on the nun’s bedsheets, proposing that the DNA may have gotten there while being laundered or handled by staff.
Hogan told TIME that the defense team’s tactics, including invoking hearsay, would not have been permissible in a normal court. The witnesses who related rumors about masturbation, for example, said in sworn depositions that they had never seen Morissette engage in such activity. Nor did the defense provide any evidence of semen being present in the laundry room or on staffers’ hands. “It’s all rumor and speculation,” Hogan says. “There’s no way a judge would have allowed it.”
In a civil trial, Hogan says, he would have taken a different tack. For example, he would have focused the jury’s attention on the nursing home’s failure to preserve surveillance footage from the night of the alleged rape. In the days following the incident, Morissette’s family asked the facility to preserve the records, according to a letter from Hogan’s office. But a month later, Chateau Vestavia had allowed its system to automatically delete the footage. That wouldn’t look good to a jury, Hogan says. “If your employees were under police investigation for sexual assault,” he explains, “you’d think you’d be sure to preserve that tape.” (A representative of Chateau Vestavia, which is now under new ownership and has been renamed Morningside of Vestavia Hills, told TIME that the surveillance footage did not include images of Morissette’s hallway. The defendant’s post-arbitration memorandum also says that the police department declined an offer to review the footage on site prior to its deletion.)
Opponents of arbitration object not just to the way a procedure occurs but to arbitrators themselves. A single person is often chosen from a short list of regional professionals, which means that one individual may hear multiple disputes from the same handful of local defendants. That can create a conflict of interest, says Paul Bland, executive director at Public Justice, a litigation firm. Arbitrators, who typically make $300 to $600 an hour, have an interest in keeping repeat clients happy, Bland says. “So if you want a paycheck next month,” Bland says, “you might have in the back of your mind the idea of making a favorable decision for the guy who’s going to hire you next.”
On May 5, 2017, Adams released his final decision in the arbitration. In a concluding order reviewed by TIME, Adams described Morissette as “a wonderful person” but said he could not engage in “conjecture and speculation” to conclude that she had been raped. He couldn’t be certain about how the semen ended up on the bedsheets, he explained, or how she had come to sustain vaginal injuries or bleeding. To Adams, she also did not seem upset enough in her testimony to police just after the assault allegedly occurred. “I did not hear the emotion from Ms. Morissette in this audio recording,” the arbitrator wrote, “that I would expect to hear from someone describing being sexually assaulted.”
Chateau Vestavia, Adams decided, could not be held responsible. Neither the assisted-living facility nor Trinity Lifestyles Management would be required to issue an apology. Nor would Chateau Vestavia be asked to inform the public that the dispute had occurred. Morissette’s family would receive no damages. (Morissette’s nieces, who had pursued the case, had asked for $5 million, but they stood to gain nothing personally. Morissette’s will specified that her assets would end up with the Catholic Church.)
And with that, the case was closed. Morissette’s family had no realistic way to appeal. Many nursing-home contracts now include so-called delegation clauses, which stipulate that any challenge to an arbitration must be answered in arbitration. If you believe your case should not be in arbitration, that question must be settled in arbitration too. As a final indignity, Morissette’s family was handed a bill for roughly $3,000 to cover the cost of renting the Marriott room where the arbitration had taken place.
In a subsequent email to TIME, Adams wrote that he does “not believe it is ever appropriate, responsible or ethical for a judge or arbitrator to discuss his or her rationale or the basis of a decision.” Bates and his firm, Starnes Davis Florie of Birmingham, did not respond to multiple requests for an interview. Trinity wrote in a statement to TIME that Morissette’s claim was “taken seriously.” “The allegation was carefully reviewed internally, by outside experts in the health care field, and by all appropriate regulatory agencies,” the statement went on. “This process found no basis of proof to support the allegation. In fact, the legal process cleared our company of any wrongdoing.”
Morissette herself was left with a profound sense of guilt. For more than six decades, she told investigators, she had honored her vow of chastity, saving herself to “give it to God.” Her virginity, she said, had been something special to her. “I valued it, and I lost it,” she told police in an interview a few days after the incident. She said she felt like “a piece of trash.” It’s around then that the recording is interrupted by the voice of a police officer. He asks Morissette if she has spoken to a priest. She says no. The cop responds again. “Because maybe he could explain about things that are lost and things that are taken. There’s a difference there,” he says gently. “There’s a big difference.”
This appears in the November 27, 2017 issue of TIME.
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