Iowa not liable for sex offender raping woman at care center, court rules

Even though state administrators helped arrange the transfer of a habitual sex offender from a state institution into a private nursing home, Iowa can't be sued by the family of a woman he molested there, the Iowa Supreme Court ruled Friday.

The victim's daughter, Becky Rassler of Rembrandt, was stunned to hear about the ruling: "I just can't believe it."

Rassler's mother, Mercedes Gottschalk, was sexually assaulted in 2011 by William Cubbage at the Pomeroy Care Center. Cubbage previously had been convicted four times of sex crimes, and he'd spent many years in state prisons and institutions.

Yet, the nursing home's residents and their families were not warned about his past when he was transferred to the center under a 2010 court order.

The Supreme Court ruled in a 5-2 decision Friday that the Iowa Department of Human Services wasn't legally liable for the attack on Gottschalk, because one judge ordered Cubbage's release from the state institution and another judge committed him to the nursing home.

"The undisputed facts show the court made the final decision to discharge Cubbage. The court was not required to discharge him," the majority opinion said.

The Supreme Court, in upholding lower courts' rulings on the family's lawsuit, also ruled that state administrators had no legal obligation to warn other nursing home residents about Cubbage's past.

Rassler said she was baffled by the ruling. She noted state administrators told judges before Cubbage's transfer that the plan to move him would work.

"They are the ones who said, ‘He's not going to do anything. He's fine,'" she said.

Cubbage had been held for several years in a sex-offender treatment program at the state Mental Health Institute at Cherokee.

Officials of the Iowa Department of Human Services decided in 2010 that Cubbage no longer belonged in the Cherokee program because of his Alzheimer's disease.

State lawyers and his public defender agreed in November 2010, and a judge committed Cubbage to the Pomeroy Care Center, a privately run nursing home.

Nursing home leaders would later say state administrators assured them Cubbage was only a danger to children, and not to senior citizens.

In August 2011, an 8-year-old child visiting the nursing home reported seeing Cubbage put his hands between the legs of an elderly woman, who cried out, "No, no, no!"

Authorities determined that Cubbage had sexually assaulted the woman, who was identified as Gottschalk. They transferred him to a state facility, but prosecutors declined to charge him because of his dementia.

Supreme Court Justices Daryl Hecht and Bruce Zager dissented from Friday's majority opinion. The two justices contended the family should have been allowed to sue the state.

"I cannot agree that the fact that the orders were approved by a district court judge somehow allows the state to avoid the duty to act reasonably to protect the vulnerable nursing home residents who would be exposed to Cubbage as a consequence of the discharge and transfer arrangement," Zager wrote.

"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 the public safety, it attempted to use the court system to absolve itself of all further responsibility and liability. This is unconscionable."

Gottschalk died in 2012 at age 96. Her daughter, Rassler, said Friday the family will press on with a lawsuit against the nursing home.

She said she still hopes the state will set up a separate facility for elderly sex offenders who need residential care. That idea was raised in the wake of her mother's highly publicized case, but it stalled over costs.

The Department of Human Services did not immediately respond to a request for comment on the ruling, which also said the nursing home couldn't transfer legal liability onto the agency for alleged failure to warn the nursing home administrators about how dangerous Cubbage could be.

Cubbage continues to draw controversy.

He was charged last year with sexually assaulting a worker at the state Mental Health Institute in Independence. A judge ruled last month that Cubbage, 88, was incompetent to stand trial.

He was sent back to the state institution.