DES MOINES, Iowa (AP) — A divided Iowa Supreme Court ruled Friday that the state had no legal responsibility to safeguard a 95-year-old woman who was sexually assaulted by a violent sex offender sent to her nursing home after he was released from state custody.
The court concluded that because a district court judge weighed the evidence of William Cubbage’s mental condition and justified his release, the state cannot be held liable for his actions at the nursing home. Cubbage had spent years in prison for committing violent sex crimes against children, but the judge allowed the state in 2010 to move Cubbage, then 82 and suffering from dementia, to the private nursing home.
The two dissenting justices, Daryl Hecht and Bruce Zager, said the decision was “unconscionable.”
“The state had the care, custody, and control over Cubbage for decades. When it no longer wanted this responsibility, regardless of the obvious risks it posed to public safety, it attempted to use the court system to absolve itself of all further responsibility and liability. This is unconscionable,” Zager wrote in the dissenting opinion.
The decision upholds a lower court ruling that dismissed the state from a lawsuit filed by the women’s adult children, who plan to pursue their claims against the nursing home, their attorney said Friday. The Iowa Attorney General’s office, which represented the state, did not immediately comment Friday.
Cubbage committed four violent sex crimes against children between 1989 and 2000, and spent years in prison. When he finished his most recent prison sentence in 2002, he was deemed a dangerous pedophile and sexually violent predator too dangerous to release. He was placed in a state-run civil commitment program which holds such offenders until doctors conclude they’ve completed counseling and may be safe to release.
In November 2010, a judge allowed the Iowa Department of Human Services and the Iowa Department of Corrections to release Cubbage from the sex offender program to the Pomeroy Care Center, a private nursing home in northwest Iowa.
But nine months later, an 8-year-old child visiting a family member at the care center witnessed Cubbage sexually assaulting the woman. Her two adult daughters and a son later sued the nursing home and the state for negligence. The woman died in October 2012.
The state argued that once Cubbage was released from its custody by the court, it had no further duty to supervise or monitor him. The woman’s children argued the state should have seen the risk of harm to the nursing home residents.
A five-member majority of the Supreme Court sided with the state in Friday’s ruling.
The attorney for the woman’s children, Willis Hamilton, said he’ll present evidence that the nursing home’s managers concealed Cubbage’s history in the separate lawsuit against the nursing home.
“They threatened any employee of the nursing home with termination if they told anyone that the guy was living there,” Hamilton said. “That should really disappoint the hell out of just about everybody that they would do that.”
State regulators fined the nursing home and its administrator after the assault for failure to protect residents.
The nursing home and its attorney did not immediately respond to messages Friday from The Associated Press.
Cubbage, now 88, was charged with assault last year after groping the crotch of a worker at the state mental hospital in Independence, where he remains a resident. A judge concluded in March that Cubbage was incompetent to stand trial. A hearing to update the judge on Cubbage’s status is set for May 2.
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