Sandusky Appeal to Rely on Pennsylvania’s Antiquated Jury Instruction

Jerry Sandusky’s attorney Norris Gelman filed paperwork that reveals the Sandusky defense team’s appeal strategy this week. One of its “major claims” relies, predictably, on casting aspersions on victims’ behavior in the aftermath of assault.

(Sandusky, the 69-year-old former football coach at Penn State University convicted of 45 of 48 child sex abuse charges last June, is currently serving 30 to 60 years at a state prison.)

As the Associated Press reports:

Attorney Norris Gelman listed the failure to report — specifically, the judge’s refusal to instruct jurors on the issue — as a critical element of Sandusky’s effort to overturn the 45-count conviction. …

Gelman, in the court filings, listed the reporting delays by the eight young men who testified against Sandusky. He said only one of them reported allegations of abuse promptly, while the others waited between four and 14 years.

”Reversible error was committed when the trial court refused the defense request to give jury instructions on the failure of the alleged victims to make a prompt complaint to authorities based on its view of ‘the research’ which led the court to believe that in the area of child sexual abuse such an instruction was not ‘an accurate indicia of honesty and may be misleading,”’ Gelman wrote.

Specifically, Gelman is referring to line 4.13A of Pennsylvania’s suggested standard criminal jury instruction, Failure to Make Prompt Complaint in Certain Sexual Offenses. It states: “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.”

Note the word “suggested.” Whether or not to include the line is explicitly left to the judge’s discretion. Judge McClelland opted not to use it.

Then there’s the problematic concept of “ordinarily expected to make.”

“This idea that ‘true rape victims’ will report is literally an ancient, widely criticized and rejected presumption,” says Jennifer Gentile Long, director of AEquitas, a D.C.-based, Justice Department-funded organization whose mission is to improve the quality of justice in sexual violence cases. “It’s from the 17th century.”

In real life, victims of childhood sexual assault and rape routinely delay reporting for a variety of reasons. That fact is “clear among legal scholars and experts in the field,” says Long. There’s no evidence that such delay correlates with the veracity of the claim.

Long says attorneys representing sexual assault defendants in Pennsylvania routinely request the line. “It’s a very strong tool of the defense,” she says, noting that Pennsylvania is in the “teeny weeny minority” of states that have similar lines in jury instruction. Reform efforts have been made since at least the 1980s to have the line removed altogether, but have not yet been able to do so.

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