PA’s Backward Expert-Witness Law Creates Advantage for Jerry Sandusky
Though the grand jury report outlining allegations that former Penn State coach Jerry Sandusky routinely raped young boys entrusted in his care is damning, when it comes to the trial, Sandusky and his lawyer Joe Amendola have a few home-court advantages here in Pennsylvania.
For one thing, thanks to a bizarre statement buried in standard jury instruction, the trial judge will instruct jurors to factor in how quickly the alleged victims reported the abuse to authorities while gauging the veracity of their claims.
From Section 4.13A of the standard Pennsylvania juror instruction, titled “Failure to Make Prompt Complaint in Certain Sexual Offenses”: “The evidence of [name of victim]’s [failure to complain] [delay in making a complaint] does not necessarily make [his] [her] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make.”
This “prompt complaint” instruction is included despite the fact that there is no proven correlation between delay in reporting assault and an alleged victim’s likelihood to tell the truth. In fact, it is common for a sexual assault victim to not report an assault right away, especially if perpetrated by a trusted authority figure—as is the case with Sandusky, who founded the Second Mile, a charity for at-risk youth.
Pennsylvania jurors are not instructed to weigh promptness of contacting authorities in cases of any other kinds of physical assault, or any other crime for that matter.
The Sandusky defense could also take advantage of the fact that Pennsylvania prohibits expert testimony in sexual-assault cases.
Without an expert to set the jury straight on the sometimes counterintuitive ways a “typical” victim of sexual assault may respond—keeping it a secret; believing an assailant’s emotionally manipulative declarations of love; responding to the assailant’s efforts to continue the relationship—the jury is ill-equipped to place a victim’s testimony into proper context.
Instead of using what we know from decades of research to give jurors context to analyze alleged victims’ testimony, juries are left to make judgments from unfair, and largely incorrect, societal biases.
That jurors will be left to rely on myths or personal judgments regarding how childhood victims tend to act after being assaulted by trusted authority figures is an advantage for all sexual-assault defendants in Pennsylvania, including Sandusky.
“Amendola says four of the alleged victims have had recent friendly encounters with Sandusky,” wrote Sara Ganim, the journalist who broke the story of the investigation back in March, in a recent Patriot-News article about the case.
Amendola also reportedly said he considers Victims Two and Six “good witnesses for Sandusky,” based on the fact that they dined with Sandusky and his wife last summer.
He has repeatedly pointed out that Victim Four had a friendly relationship with the Sanduskys that included introducing Sandusky to his fiancée and newborn baby.
So far, pointing to the men’s interactions with Sandusky after alleged attacks to discredit their stories seems to be the leading defense strategy. That and suggesting alleged victims are in it for the money, as Amendola did to the gasps and scoffs of the crowd gathered after waiving the preliminary hearing this week.
Until the Sandusky trial begins, Amendola, who reportedly impregnated a 16-year-old client in 1996, will presumably continue to question victims’ credibility based on their respective relationships with Sandusky in recent years.
“Common victim behaviors are often incomprehensible to laypeople,” according to a special report on expert testimony in cases of sexual assault and domestic violence published by the National District Attorneys Association. “Laypeople, therefore, often rely on myths or substitute their own wrong judgments.”
Meanwhile, legislation to bring Pennsylvania in line with the rest of the country in allowing expert witnesses to testify in sexual-assault trials is currently sitting in the Senate Judiciary Committee, chaired by Sen. Stewart Greenleaf (R-Montgomery/Bucks counties).
It hit the Senate Judiciary Committee on June 26, where it has sat since. In a recent interview, Parker was diplomatic about the stall.
“Senator Greenleaf, who is the majority chair for that committee, is one of the most fair-minded and progressive committee chairman we have in the general assembly,” said Parker. “I am extremely hopeful for this measure that was proffered in a bipartisan manner since its inception.”
Parker points out that the legislation preceded the Penn State scandal—it was drafted after Pennsylvania jurors notoriously acquit Jeffrey Marsalis, aka the alleged Match.com rapist, of most charges. She hopes the Penn State scandal can galvanize passage of the bill.
“The Penn State situation … further sheds light on the sense of urgency needed for the passage of House Bill 1264,” Parker said.
When PW reached Greenleaf on the phone, he expressed concerns.
“We have to fine-tune the legislation,” he said. “We’re looking at how other states address these issues … We want the law to apply to cases we want it to apply and not to apply when it’s not relevant.”
Harper said she was “disturbed” to hear that Greenleaf had concerns about the legislation.
“I’m very surprised to hear he has reservations,” said Harper during a recent phone call. “I … would hope he would share them with Rep. Parker and myself and to see if they could be fixed.”
If the bill does not make it out of the Senate before summer break, it will die. Parker and Harper would then have to begin the process from scratch again next year.