‘No Legal Basis’ for Protecting Alleged Victims’ Identity in Jerry Sandusky Trial Is Misleading

The trial against former Penn State coach Jerry Sandusky begins with jury selection this morning in the small town of Bellefonte, Pa., about 12 miles north of State College. As of 10:30 a.m., four jurors were dismissed for personally knowing Sandusky, the 68-year-old charged with sexually abusing 10 boys over 15 years.

For the alleged victims, the beginning of the trial means the end of months of carefully orchestrated anonymity: Motions filed by the alleged victims lawyers requesting the they be allowed to testify under pseudonyms were denied Monday.

“In his ruling,” reported the Patriot-News, “[Judge] Cleland says that the defense had no objection to the request, however prosecutors warned the accusers that their motions … had no legal basis.”

But that’s not entirely true.

“Just because there’s not a specific statute doesn’t mean it hasn’t happened,” says Diane Moyer, legal director of the Pennsylvania Coalition Against Rape, who called Cleland’s statement “overbroad.”

“We do it for juveniles all the time,” she continues. “There’s a fear of reversal and mistrial and all the rest of it, so they’re erring on the side of caution. There’s intense public scrutiny, so I can understand so you wouldn’t want to commit reversible error but I think these are de minimis requests.”

Moyer says five other states currently allow aliases to be used during trial, and though there is not a specific statute specifying use of pseudonyms for adults testifying in Pennsylvania, the U.S. Supreme court routinely allows it when “there is potential danger to the individual or repercussions to publishing the names,” such as Roe V. Wade.

“I believe that’s an area that fits this case,” Moyer says.

Up until this point, the identity of seven of the eight alleged victims has remained concealed from the public. “Victim One,” a 17-year-old high school senior, has not been so lucky.

Victim One’s report to the police initially triggered the investigation. As the Patriot-News reported at the time, the boy was outed “by someone close to him” back in November, not long after news of the allegations broke. As a result, he was bullied by classmates so intensely that he left his school altogether. According to reports, his peers blamed him for the firing of coach Joe Paterno and called him derogatory names.

With his struggles in mind as a cautionary tale, seven state victims’ advocate groups jointly filed an amicus curiae brief at the Centre County Courthouse in Bellefonte on May 30 urging the court to allow the other alleged Sandusky victims to use aliases when testifying in court.

“Given the intense media coverage of this case … [disclosing their names] will undoubtedly intimidate victims, affect their ability to testify, and impact their recovery. It will also violate their rights to privacy, access to courts, and dignity and respect. Failure to protect these victims’ rights sends a clear message to all victims of sexual abuse: You have a Hobson’s choice: your privacy or your access [to] justice.”

Public exposure is not the only consequence alleged victims have to deal with as a result of trial being held in Pennsylvania, a state lagging far behind national standards when it comes to law and policy dealing with sex abuse and assault.

As previously reported by PW, Pennsylvania is the only state in the country that does not allow expert testimony in sexual assault trials.

If allowed, an expert would educate the jury on the range of “normal” behaviors displayed by victims of acquaintance child-sex abuse to mitigate against defense claims that, for example, an abused child’s ongoing relationship with the alleged abuser indicates that he or she is lying. Sandusky’s lawyer, Joe Amendola, has routinely peppered the press with such statements since last fall. In fact, it is common for victims of acquaintance child-sex abuse to maintain relationships with their abusers, especially when they are authority figures.

HB 1264, a bill that would rectify the situation, passed the House for three years. This session, it landed in the Senate Judiciary Committee in time to be passed and enacted before both the landmark Philadelphia priest trial and the Sandusky trial. But it inexplicably stalled in the Senate for months as these trials got underway.

And this is not the only backward Pennsylvania law working against the alleged victims in this case.

Once twelve jurors are selected, Cleland, by law, will have to formally instruct them to treat victims’ testimony with a heightened level of suspicion.

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 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.

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