Failure of PA Legislature Gives Jerry Sandusky Unique Advantage at Trial
Along with today’s news that Judge John Cleland refused to throw out child-sex-abuse charges against former Penn State assistant football coach Jerry Sandusky comes confirmation of a policy failure that will have huge consequences for the outcome of the trial: Despite the bright spotlight cast on Pennsylvania’s sex-abuse laws since the Sandusky case broke in November 2011, the state Senate failed to take action to correct a legal loophole that has allowed countless sex offenders to go free in time for the Sandusky trial, scheduled to begin June 5.
This is the problem: Pennsylvania is the only state in the country that doesn’t allow experts to testify regarding victim and assailant behavior in sexual-assault trials. All 49 states, D.C., federal court and even the military allow expert testimony. What this means is that defense attorneys are allowed to chisel credibility away from alleged victims by questioning their behavior during and after the alleged assaults in a Pennsylvania courtroom without anyone to put victims’ behavior into context for a jury.
We routinely use court-qualified forensic, medical and psychology experts as educational tools for the jury, since the average juror isn’t expected to be knowledgeable enough in subjects such as blood patterns, or physical or mental illnesses to draw rational conclusions without context.
In sexual-assault trials, psychology experts could advise jurors, for example, that it is common for child-sex-abuse victims to maintain relationships with the authority figures who attacked them and that it’s also common for a victim to not reveal the abuse for years.
Without expert testimony, the jury is left to make decisions based on beliefs culled from shows like Law & Order: SVU and Hollywood movies.
As Deborah Harley, chief of the Family Violence and Sexual Assault Unit of the city’s District Attorney’s Office, told PW last year: “We’ve had several cases where juries have acquitted serial rapists because they felt the victims’ behavior after the assault was counterintuitive.”
Greg Rowe, the Pennsylvania District Attorneys Association’s legislative liaison, has said the same.
How many rapists and child sex abusers have to go free before Pennsylvania corrects this mistake?
House Bill 1264, the bill that would allow expert testimony, was introduced in plenty of time to take effect before the Sandusky trial.
The bill’s sponsor, state Rep. Cherelle Parker (D-Philadelphia), has been introducing it since 2007.
Last year, after Philadelphia Weekly ran an article about HB1264, it finally passed through the House on a 197-0 vote and was sent to the Senate Judiciary Committee—where it sat, untouched, for the next nine months.
Though it was drafted before the Penn State scandal, Parker was hoping that the spotlight on Pennsylvania law would help galvanize movement.
“The Penn State situation … further sheds light on the sense of urgency needed for the passage of House Bill 1264,” Parker told PW in December.
As it sat gathering dust, state Sen. Stewart Greenleaf, chairman of the Judiciary Committee, offered various tone-deaf reasons for the stall.
In December, to the surprise of both of the bill’s sponsors, Greenleaf told PW he needed to “fine-tune” the legislation. In February, Patriot-News reporter Sara Ganim, who broke the Sandusky story, wrote that the reason for the delay was that “Greenleaf wants to make sure any bill allows for the defense to bring an expert into court, too.”
After more pressure from groups like Pennsylvania Coalition Against Rape, HB1264 finally passed out of committee on March 27—but it still isn’t law and, with a 60-day effective date along with the news today that the trial will not be delayed again, it will not be in effect during the Sandusky trial.
And it gets worse.
Not only does Pennsylvania law prohibit expert testimony to dismantle myths about victim behavior, but a line buried in jury instructions actually advises jurors with false information that favors the defendant in a sex-assault trial:
“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.’”
At Sandusky’s trial in June, the jury will be explicitly advised to question the credibility of any victims who did not immediately come forward, despite the total lack of evidence of any correlation between time delay in reporting abuse and truth in allegations.
Meanwhile, questioning the veracity of Sandusky’s alleged victims has been the central theme of lawyer Joseph Amendola’s defense strategy from the beginning. Amendola didn’t wait for trial to begin pointing out that Sandusky’s alleged victims maintained relationships with the coach after alleged incidents, as if that behavior is abnormal or meant abuse could not have occurred.
Most of the alleged victims in the Sandusky case, as is common in child-sex-abuse cases, did not immediately come forward.
Sandusky is charged with more than 50 criminal counts that allege sexual abuse of 10 boys over 15 years.