Statute of limitations one hurdle in Sandusky cases

Posted: November 24, 2011

The allegations have provoked outrage. And, given the highly emotional nature of child sex-abuse cases, it would seem a lawsuit by alleged victims of Penn State assistant football coach Jerry Sandusky might easily succeed - if their stories withstand legal scrutiny.

But that does not mean there will be no legal hurdles.

Among the obstacles is Pennsylvania's statute of limitations for sexual-abuse victims. The legislature amended the law in 2002 to permit adults up to the age of 30, who claim to have been assaulted as minors, to file lawsuits against alleged abusers, if the acts involved force or threats of force. This would seem to liberalize the circumstances under which victims can seek compensation.

But Shanin Specter, a leading Center City plaintiffs' lawyer, says Pennsylvania courts have issued contradictory rulings on what constitutes forcible sexual molestation, and depending which case is cited, victims could be out of luck.

In the case causing the greatest uncertainty, Commonwealth v. Mlinarich, the state Supreme Court in 1988 threw out a rape conviction, finding that the convicted rapist had not used force by employing a verbal threat.

The man convicted of rape, the guardian of a 14-year-old girl, had told the girl he would send her to a detention center if she refused to have sex with him.

An earlier Supreme Court case, Commonwealth v. Rhodes, produced a seemingly contradictory result. In that case, the court upheld the conviction of a man for raping an 8-year-old boy.

There was no evidence of violent coercion, but the court said the age difference weighed heavily in upholding the conviction.

In the end, Specter says, he expects courts to permit such lawsuits to go forward because common sense suggests the victims were subject to extreme coercion and should have the right to civil damages if they can prove their cases.

But the law is not crystal clear on the subject, he says.

And the fuzziness comes down to when the statute of limitations should expire in these cases.

"If you are under 20 [when one files], you are good; if you are over 30, you are out; if you are between 20 and 30, the statute turns on how you define forcible compulsions," said Specter. "I believe that, ultimately, the claims will get through the statute of limitations because these situations involve a man [Sandusky] in his 50s or 60s with young boys, where he had a domineering position."

Some lawyers also have suggested that the state's sovereign immunity statutes, which largely protect state institutions from liability lawsuits, might also be an obstacle for the victims in the Penn State cases.

Brian Kent, a Center City lawyer whose practice is focused on representing sexual-abuse victims against municipalities, school districts, and other government entities, says he typically gets around that obstacle by filing under federal civil rights statutes.

But Specter said sovereign immunity likely was not a problem with Penn State because, while it is a state-supported institution, it is not a state government agency.

The grand jury report that has been issued charged that Sandusky had sex with eight boys at his home, on trips to football games, or at Penn State facilities over a number of years.

It said that senior university officials had failed to turn over information about an attack, even though they had a duty to report it.

And it found that graduate assistant Mike McQueary, who later became an assistant coach, had witnessed the attack. While McQueary told Paterno the next day, and informed more senior officials a week later, he did not intervene at the time of the attack, according to the grand jury report.

McQueary recently has said that he reported the attacks to the police. The police in State College say they have no record of receiving such a report. And the grand jury report states emphatically that neither the police nor the Pennsylvania Department of Public Welfare, nor any child protective agencies, were told.

Specter says he is skeptical of McQueary's assertion and argues that his statements could be easily used to undermine his credibility. Had the police received such a report, Specter said, they most likely would have launched an investigation and there would have been a paper trail.

"You would have expected a very substantial investigation, which evidently did not happen," Specter said.

But since there is none, it is doubtful the call was made, Specter said. By saying he called the police, McQueary is saying that he knew that making the call was the right thing to do, but that he failed to do it, Specter said.

And that could be a problem in any civil litigation.


Contact staff writer Chris Mondics at 215-854-5957 or cmondics@phillynews.com.

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