Published By: Maxwell S. Kennerly, Esquire

Child Abuse

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Read more about our law firm’s Philadelphia child molestation lawyers. This post is cross-posted on the Philadelphia Priest Abuse Trial Blog.

As Ralph Cipriano reported, the defense attorney for Father Brennan spent a lot of time cross-examining the prosecution’s chief witness against Father Brennan by going into the alleged victim’s reaction to the molestation, including why the alleged victim — an adolescent boy at the time — did not call out to his mother afterwards, why the alleged victim took a subsequent motorcycle ride with Father Brennan, and why the alleged victim didn’t report the assault to authorities sooner.

Father Brennan’s attorney, coincidentally named William Brennan, has an important job to do — safeguarding his client’s constitutional rights and challenging the testimony of his accuser — so I don’t fault him for going into those issues, but these types of questions raise a common problem in both criminal sexual assault prosecutions and civil sexual abuse lawsuits:  the persistence of rape myths in society and in the courts. The term “rape myths” was coined by psychologists as a means of describing false attitudes and beliefs that serve to deny allegations of sexual abuse and to thwart accountability for abusers.

Some of these rape myths are easy to spot.  For example, many people will thoughtlessly say a victim “asked for it” by wearing the wrong clothes or by drinking alcohol, or they assume that victims are lying for attention or to cover up an affair.  Myths like these are so pernicious and pervasive that the people perpetuating them don’t realize it. Thus, even people acting in good faith can end up applying rape myths to treat allegations of sexual abuse differently from other allegations of criminal conduct and to demand more proof from sexual abuse survivors (such as corroborating evidence in addition to testimony) than they do from other crime victims.

The testimony by Father Brennan’s alleged victim, and by many of the alleged clergy abuse victims, raises one of the more common rape myths: that a victim of rape, sexual assault, or molestation will resist an attacker forcefully, will cry out for help during the attack, and will immediately report the assault to others.  …
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Read more about our Pennsylvania clergy abuse lawyers. This post is cross-posted on our Philadelphia Priest Abuse Trial Blog, where investigative reporter Ralph Cipriano is covering the criminal trial of Monsignor Lynn.

From the war on drugs to criminal copyright infringement, a number of commentators, legal scholars, politicians and even sitting judges have criticized the breadth of American criminal law, like the prevalence of non-violent or “victimless” crimes that don’t have a direct victim, and the Draconian mandatory penalties that are meted out, even where the judge and jury applying those laws think that less severe penalties would be appropriate. As a consequence of this “overcriminalization,” the United States has by far the highest incarceration rate in the world, so that, with only five percent of the world’s population, we nonetheless have twenty-five percent of its prisoners, most of them imprisoned for non-violent offenses, typically drug offenses.

Historically, and continuing to the present, there have been two glaring exceptions to this expansion of criminality: abuse within the family (whether spousal abuse or child abuse) and criminal conduct by large institutions (like corporations, universities, or churches), both of which have generally gone unpunished, without prosecution, and without even investigation. Child abuse was not considered a crime until the 1870s, when Mary Connolly was prosecuted for “attacking her foster child with a pair of scissors and repeatedly beating her with a rawhide whip and cane.” (Quote from the Logan article discussed below.) She was convicted, and after that various “children’s guardian” boards were created. The prosecution of child abuse, however, remained rare until the 1960s, when new mandatory reporting laws were enacted that required healthcare professionals to report suspicions of child abuse to government authorities.  Similarly, in the 1980s, public awareness of the sexual abuse of children increased dramatically, so that today child abuse prosecutions are no longer the rare, newsworthy events that they once were.

Prosecutions of crimes that occur within the context of a large institution are even less common than prosecutions for spousal abuse or child abuse, and they even more rarely result in a conviction. Outside of a handful of prominent examples — like Bernie Madoff and Jeffrey Skilling — financial institution fraud prosecutions have fallen over the past 20 years, down to under 1,400 a year across the entire country. Many prosecutions of alleged crimes that occurred inside a corporation with the knowledge of other employees, like the prosecution of GlaxoSmithKline associate counsel Lauren Stevens, ended in failure, dismissed prior to a jury ruling.

Clergy abuse implicates both tendencies in American law — the reluctance to prosecute child abuse by people close to the family and the preference for letting institutions resolve problems “internally” — by virtue of the church’s role in society, in communities, and in families. In a law review article published in 2003 in the Harvard Civil Rights and Civil Liberties Law Review, Professor Wayne A. Logan of Florida State University’s College of Law tied these issues together under the framework of “criminal law sanctuaries,” going all the way back to the role of the church in the middle ages in serving as a “sanctuary” that would shield accused criminals from prosecution. …
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One of the points I stressed when writing about the Sandusky child abuse scandal at Penn State was the role of the statute of limitations: due to the timing of the last change in Pennsylvania’s childhood sexual abuse statute, some of Sandusky’s victims may be outside the time in which they can file a claim, while others can still file. Putting aside the efforts to extend the statute of limitations in Pennsylvania — long stalled thanks to the efforts of the Catholic Conference — there’s the simple question for lawyers representing those victims: how do you advocate for a client whose case has expired?

The issue has come back into the press with the recent accusation by two former batboys for the Orioles, both now in their 30s, who allege they were victimized by Red Sox clubhouse manager, Donald Fitzpatrick, who died in 2005 and has been accused of molesting nearly two dozen former batboys. The lawyer representing most of the victims has openly conceded many their claims are outside the statute of limitations, but the Baltimore Sun reports he’s demanding $5 million for each nonetheless.

The idea of “trying cases in the press” has a storied history of severing the legal community into two camps, the first believing the tactic to be at best jury tampering and at worst extortion by public relations, the second seeing the tactic as yet another tool in the lawyer’s toolbox that has to be used by the zealous advocate when circumstances demand it.…
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Read more about our law firm’s Catholic Priest Abuse practice.

As I’ve mentioned before, I think the motivations that compel lawyers to deny reality while defending some clients are varied and complex, but it cannot be denied that, in many cases, the defense is premised not on providing explanations or raising genuine doubts, but on burying the truth.

Lest we forget what brought us to the ongoing criminal trial of Monsignor William Lynn, here is how the grand jury report against him begins:

In September 2003, a grand jury of local citizens released a report detailing a sad history of sexual abuse by priests of the Archdiocese of Philadelphia. That abuse was known, tolerated, and hidden by high church officials, up to and including the Cardinal himself. The previous grand jury was frustrated that it could not charge either the abusers or their protectors in the church, because the successful cover-up of the abuse resulted in the expiration of the statute of limitations. Now, measures taken in response to the previous report have led to new information about more recent abuse, which this grand jury was empaneled to investigate. The fact that we received that information, and from the church itself, is some sign of progress; and this time there will be charges.

The present grand jury, however, is frustrated to report that much has not changed. The rapist priests we accuse were well known to the Secretary of Clergy, but he cloaked their conduct and put them in place to do it again. The procedures implemented by the Archdiocese to help victims are in fact designed to help the abusers, and the Archdiocese itself. Worst of all, apparent abusers – dozens of them, we believe – remain on duty in the Archdiocese, today, with open access to new young prey.

And so we come to the latest, but not the last, controversy in the criminal case, this time over the remarks made by presiding Common Pleas Court Judge M. Teresa Sarmina. A week ago, before the trial began, the lawyers for the Catholic Church wanted to ask potential jurors, “Do you believe child sexual abuse is a widespread problem in the Catholic Church?” Judge Sarmina struck the question, answering “Anybody that doesn’t think there is widespread sexual abuse within the Catholic Church is living on another planet.”

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In less than three months, Joe Paterno went from one of the most revered figures in sports and a Pennsylvania institution to being implicated in a scandal, terminated from the job he had held for generations, and excoriated by the media to a historical figure who is no longer with us. He passed away over the weekend at the age of 85. A memento mori indeed.

I did not attend Penn State, so I’ll leave the remembrances to others. Paterno died, however, amidst a national scandal, two criminal prosecutions, and likely more than a dozen civil lawsuits to be filed. In those same three months the legal issues surrounding the Sandusky indictment have already advanced considerably, and now there’s a new question: what effect will Joe Paterno’s death have on the ensuing criminal and civil litigation?

I was quoted in a Reuters article that addressed those issues:

Because Paterno was not believed to have witnessed any purported abuse, his testimony would not have been crucial to Sandusky trial, said Paul Callan, a former prosecutor and criminal defense attorney.

But his death could set back the criminal case against Curley and Schultz.

“The Confrontation Clause (of the constitution) guarantees that criminal defendants will have the right to confront and cross-examine the witnesses against them at the time of trial,” Callan said. “No defense attorneys were present at the grand jury proceedings to do such a cross-examination.”

Max Kennerly, a Philadelphia trial lawyer who has followed the case, said Paterno’s death was unlikely to alter any civil litigation being contemplated by Sandusky’s accusers. If any were considering suing Paterno, they could just name his estate.

“Death doesn’t change your status as a party,” Kennerly said.

It wasn’t my intent to sound callous, but, in the legal world, death typically doesn’t break a case except where either a criminal defendant dies (and there’s no point in going forward) or the sole complaining witness against a criminal defendant dies (“no witness, no case” is the disturbing motto sometimes tied to witness intimidation or witness murder prosecutions, like Paul Bergrin’s). Here, Paterno wasn’t a defendant and, as far as anyone has said publicly, he didn’t witness any of the sexual assaults nor did Jerry Sandusky make any incriminating remarks to Paterno.…
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My post on the potential civil lawsuits arising from the Jerry Sandusky molestation scandal at PSU still generates a fair amount of traffic, mostly from people looking for updates on the latest legal developments. If the internet asks, it shall receive.

There have been four major developments relating to the case:

  1. A preliminary hearing for the criminal charges against Tim Curley and Gary Schultz;
  2. The filing of another civil lawsuit against Sandusky, Penn State, and The Second Mile;
  3. The filing of a declaratory judgment action by Federal Insurance Company of New Jersey, the insurance company for The Second Mile, to obtain a court order relieving it of any duty to defend or to indemnify Sandusky for the sexual abuse claims against him; and,
  4. The disclosure of multiple allegations of child molestation against longtime Philadelphia Daily News sportswriter Bill Conlin, allegations involving conduct from decades ago, apparently spurned in part by the Sandusky indictment. (This development is legally connected to the Sandusky indictment because of the statute of limitations, as explained below).

Let’s consider them bit by bit.

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[UPDATE, July 12, 2012: The independent report by Louis Freeh’s law firm has been released. It is damning, to say the least, concluding there was a “total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims.” Blame is rightfully heaped upon Paterno, Spanier, Curley, and Schultz.]

[UPDATE, June 22, 2012: Jerry Sandusky was convicted on almost all counts. Reuters quoted me talking about the effect of the prosecution and conviction on the civil lawsuits pre-verdict here and post-verdict here. Short version: Penn State, as I had hoped, is signaling their willingness to settle the cases. As a legal matter, the Sandusky conviction acts as collateral estoppel on the victims’ claims that they were abused — establishing that fact conclusively in later proceedings — but that doesn’t mean Penn State is automatically liable. Also, as a practical matter, the Sandusky prosecution didn’t reveal as much about Penn States actions (or inactions) as the Schultz and Curley trials will.]

[UPDATE, March 2, 2012: The Bill of Particulars has been filed against Jerry Sandusky. A copy is available here. As The Daily Collegian reports, “eight of the 10 men connected to Sandusky’s charges were sexually abused on Penn State’s campus — in the Lasch Football Building, the East Area Locker Rooms and an outdoor pool.” That increases Penn State’s liability: in addition to claims that PSU failed to act on the reports it had, those eight men can all allege that PSU failed to maintain a safe campus by permitting Sandusky access to those facilities and allowing him to bring children onto the premises.]

[UPDATE, November 30, 2011: A previously unknown victim has filed a civil lawsuit against Sandusky, Penn State, and the Second Mile. A copy of the complaint is available here; it alleges the theories I described below, plus claims of negligent and intentional misrepresentation. There’s nothing wrong with those claims, but I don’t think they add much value. Intriguingly, the Complaint says the victim was 10 years old in 1992 — which means the statute of limitations turns on his birthday. If he turned 18 before August 27, 2000, he can’t use the 2002 amendments to preserve his claim, and will instead have to use other theories to maintain his claim, theories Pennsylvania courts have rejected in clergy abuse cases. That strikes me as profoundly unjust, and I reiterate my hope that Penn State and the Second Mile establish a compensation fund and try to work through this process amicably.]

Note: this post is long because it’s comprehensive, addressing:

  • the types of claims survivors can bring in a civil lawsuit,
  • the role of the statute of limitations, and whose claims are still within it,
  • whether or not Penn State is immune from liability under the ‘sovereign immunity’ doctrine,
  • the compensation that may be available (through settlement or jury verdict), and
  • the reality of sexual abuse litigation.

I’ve also written a couple follow-up posts under the Penn State Liability tag.

Pennsylvania and the nation has been shocked by Saturday’s grand jury presentation (essentially an indictment) of Jerry Sandusky, a former defensive coordinator for Penn State’s football team, for sexually abusing eight children that he “groomed” through a charity for troubled young boys he founded, The Second Mile. Also indicted were athletic director Tim Curley and a Penn State Senior VP, Gary Schultz, for perjury and failure to report the abuse to authorities. NPR has a breakdown of key figures and the timeline. The Pennsylvania State University Board of Trustees has fired Joe Paterno and President Graham Spanier over the scandal.

Lawyers writing about criminal indictments feel an obligation to remind everyone who might come across their articles that our legal system presumes everyone is innocent of the allegations made against them by prosecutors until they are proven guilty in court. Everyone — even apparent child molesters — is entitled to their day in court, so I’ll reiterate that here. My analysis of the civil claims below, though, presumes the accusations made by grand jury’s presentation are largely true.

It’s bad enough that two separate Penn State officials apparently tried so hard to cover up the sexual abuse that they got themselves indicted, but perhaps even more disturbing is how preventable most of the abuse was:

HARRISBURG, Pa. – Penn State officials had three opportunities to stop Jerry Sandusky from preying on young boys but failed to take action, state police Commissioner Frank Noonan said Monday at a news conference with Attorney General Linda Kelly.

“This is not a case about football, it’s not a case about universities_it’s about children who have their innocence taken from them and a culture that did not nothing to stop it or prevent it from happening to others,” Noonan said.

Two Penn State administrators are charged with lying to the grand jury and failing to report an abuse allegation. Kelly said Monday that Coach Joe Paterno was a witness for the grand jury and faces no charges.

In 1998, there was a police investigation in which [Sandusky] “made admissions about inappropriate contact in a shower room.” Nothing happened.

In 2000, janitors saw him performing oral sex on a child in the shower room, but they discussed it only amongst themselves. Nothing happened.

In 2002, a graduate student (and now an assistant coach there) reported to Paterno “fondling or something sexual,” which Paterno apparently passed on to school administrations. Nothing happened.

We like to think that a sexual predator could only molest multiple children over the course of years through methodical concealment of their crimes and intimidation of witnesses, but that simply wasn’t the case. This also wasn’t a failure of one or two people in a moment of weakness, doubt or cowardice. The whole system abused these children by enabling their abuser.

Consider this part of the grand jury presentment:

Schultz testified that he knew about an investigation of Sandusky that occurred in 1998, that the “child protection agency” had done, and he testified that he believed this same agency was investigating the 2002 report by the graduate assistant. Schultz acknowledged that there were similarities between the 1998 and 2002 allegations, both of which involved minor boys in the football showers with Sandusky behaving in a sexually inappropriate manner. Schultz testified that the 1998 incident was reviewed by the University Police and “the child protection agency” with the blessing of then-University counsel Wendell Courtney. Courtney was then and remains counsel for The Second Mile. Schultz confirmed that University President Graham Spanier was apprised in 2002 that a report of an incident involving Sandusky and a child in the showers on campus had been reported by an employee. Schultz testified that Spanier approved the decision to ban Sandusky from bringing children into the football locker room and the decision to advise The Second Mile of the 2002 incident.

Although Schultz oversaw the University Police as part of his position, he never reported the 2002 incident to the University Police or other police agency, never sought or reviewed a police report on the 1998 incident and never attempted to learn the identity of the child in the shower in 2002. No one from the University did so. Schultz did not ask the graduate assistant for specifics. No one ever did. Schultz expressed surprise upon learning that the 1998 investigation by University Police produced a lengthy police report. Schultz said there was never any discussion between himself and Curley about turning the 2002 incident over to any police agency. Schultz retired in June 2009 but currently holds the same position as a senior vice president with Penn State, on an interim basis.

Lest there be any confusion that Penn State had simply failed to grasp the severity of an ambiguous situation, the graduate student reported that he “saw a naked boy, Victim 2, whose age he estimated to be ten years old” being raped by Sandusky. That’s what the leadership at Penn State, apparently up to the University President, thought wasn’t worth bringing to the attention of the police, not even the campus police.

It’s hard to come up with the right words. Appalling. Inexcusable. As a trial lawyer, the word “reckless” jumps out at me.

The Legal Claims That Sexual Abuse Survivors Can Bring In A Lawsuit Against Penn State, The Second Mile and The Employees Involved In The Cover Up


Under Pennsylvania law:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

That’s from the Pennsylvania Supreme Court opinion Hutchison ex rel. Hutchison v. Luddy, 870 A. 2d 766 (Pa. 2005)(quoting Restatement (Second) of Torts § 500), a clergy abuse which evaluated a jury verdict which included a one-million-dollar punitive damages award against the Diocese of Altoona-Johnstown after the jury found:

that the Diocesan Parties had knowledge that Luddy was molesting children; that they were negligent in their retention and supervision of Luddy; that they engaged in a pattern and practice of ignoring allegations of pedophilic behavior among priests; and that their negligence was a substantial factor in bringing about harm to [the plaintiff].

Unsurprisingly, numerous comparisons have been made between the the Catholic church’s handling of repeated child molestation by clergy and Penn State’s handling of Sandusky. (One terrible similarly is that the Diocese of Altoona-Johnstown is the diocese for Centre County, where State College is located.) In terms of a civil lawsuit by the victims against Penn State, like with the Annie Le wrongful death case against Yale, in every state I know of employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious or criminal act, injures a third party. In these cases, victims’ lawyers tend to raise three separate claims:

  • negligence (for failing to protect the children; it’s more analogous to an inadequate security claim than an employment-related claim),
  • negligent supervision (for failing to oversee the abusive priests), and
  • negligent retention (for failing to fire the priests after the first incident).

Unlike with the Annie Le case, though, both the Catholic Church (sometimes including the Holy See, sometimes on the Archdiocese level) and Penn State didn’t have to predict that abuse might happen, they knew it was happening, did nothing to stop it, and took measures to cover it up. Thus, the priest abuse cases — and likely the Penn State cases —also allege:

  • vicarious liability (alleging the Church’s failure to report the priest to the authorities essentially ratified that he had been acting within in the course and scope of his job) and
  • civil conspiracy (for working amongst themselves and with the priest to cover up the abuse).

The latter two are unusual for your typical “employee who committed a crime,” but in the clergy cases, and potentially in the Penn State case, they’ll fit. That’s what Penn State gets for permitting the abuse to continue.

Here, there’s another claim, too, which might be the easiest to prove: negligence per se, in which a plaintiff alleges that the defendant violated a particular statute or regulation that was intended to protect like the plaintiff. That particular statute here would be Pennsylvania’s failure-to-report law, 23 Pa.C.S. Section 6311, which requires:

A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator.

That’s the same law Curley and Schultz have been criminally charged with violating. There aren’t too many court opinions on the use of negligence per se claims against individuals and entities that failed to report abuse, but the two federal court opinions on the subject both permitted the claim in similar sexual abuse cases. Valesky v. Roman Archdiocese of Greensburg, 2010 U.S. Dist. LEXIS 43857 (W.D. Pa. 2010)(citing Doe v. Liberatore, 478 F. Supp. 2d 742 (M.D. Pa. 2007)).

If Curley and Schultz are found guilty of violating the mandatory reporter law — which isn’t a sure bet, but which seems plausible — that will deal a heavy blow to Penn State’s best defenses, because there’s no doubt Curley and Schultz were acting in the course and scope of their employment when they failed to follow up on and report the abuse, and so Penn State is vicariously liable for their conduct.

Even if Curley and Schultz are found not guilty of violating the reporting law, and even if it appears that Penn State — apart from Sandusky — complied with all criminal laws, that does not insulate them from potential liability for punitive damages. The Pennsylvania Supreme Court has already ruled that even compliance with detailed governmental safety standards “does not, standing alone, automatically insulate a defendant from punitive damages.” Phillips v. Cricket Lighters, 584 Pa. 179, 191, 883 A.2d 439, 447 (2005).

Penn State Is Not A State University, But Instead A “State-Related” University, And So Is Almost Certainly Not Immune From Liability Under The Doctrine of Sovereign Immunity


Some lawyers have presumed that Pennsylvania State University, as a public university, is immune from tort liability as an instrumentality of the Commonwealth under 42 Pa.C.S. § 8521. That’s not necessarily the case, however. Temple University, for example, is also a public university and is also part of Pennsylvania’s Commonwealth System of Higher Education, but the Commonwealth Court held that Temple was not immune from tort lawsuits because it remains independent in its operation and is not classified by statute as an “agency” or as exercising “public powers.” Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).

[Addendum: In the comments to a followup post I wrote about law professors wrongly asserting Penn State was immune from liability, a smart “Guest” notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there’s reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held “PSU is not an agency of the Commonwealth” for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I’ve cut and pasted the pertinent part of their reasoning to the end of that post. There’s every reason to believe the Pennsylvania Supreme Court would apply the exact same reasoning for tort liability.]

Further, as Jeff Anderson argues, if the Penn State coaches and administrators try to go down the sovereign immunity route by claiming they’re state employees and thus immune from state tort claims like negligence, winning that argument — i.e., the argument that they are state actors — can expose them to liability for federal civil rights claims. Civil rights claims are harder to prove at trial than negligence claims (here’s one of my posts discussing the difficulties of winning even an obvious civil rights case), but, on these facts, Penn State is going to have a hard time arguing they and their employees were not “deliberately indifference” to the rights of those children. They knew. They did nothing.

The State Of Limitations Might Have Run For Some Victims, But Not All, Due To Changes In Pennsylvania’s Childhood Sexual Abuse Statute In 2002


There’s a problem with some of the civil cases that might be filed: the statute of limitations.

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I’ve written several times before how difficult it is to sue the government for failing to do its job, like how you can’t sue the police department for failing to enforce a court order. It’s tough to sue the government even when they wrongly entrap and then kill your son for the trivial ‘crime’ of sports betting. The government doesn’t even need to train its prosecutors in the basics of constitutional law.

“Civil rights” is a tough area in which to practice law, if you’re representing the plaintiffs. There aren’t “typical” civil rights cases, because typical isn’t good enough under the law. The facts need to be extraordinary and egregious. “Shocks the conscience” is the verbage ordinarily used by courts to deny claims:

To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v.California, supra, at 172-173, where we found the forced pumping of a suspect’s stomach enough to offend due process as conduct “that shocks the conscience” and violates the “decencies of civilized conduct.” In the intervening 847*847 years we have repeatedly adhered to Rochin `s benchmark. See, e. g., Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that conduct that “`shocked the conscience’ and was so `brutal’ and `offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process);Whitley v. Albers, 475 U. S. 312, 327 (1986) (same); United States v. Salerno, 481 U. S. 739, 746 (1987) (“So-called `substantive due process’ prevents the government from engaging in conduct that `shocks the conscience,’. . . or interferes with rights `implicit in the concept of ordered liberty’ “) (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, “poin[t] the way.” Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U. S. 1033 (1973).

County of Sacramento v. Lewis, 523 U.S. 833 (1998)(emphasis added). Unfortunately, the lack of a “calibrated yard stick” often leaves civil rights victims at the whim of courts. If the federal district judge or two of the federal appellate judges assigned to a case believe the conduct in question doesn’t “shock the conscience,” then the case is dismissed, without a minute of testimony in front of a jury.

All of those barriers apply to cases even where the government actor — a police officer, parole officer, a prison guard, et cetera — is the one who directly caused the harm. If the harm was caused by someone else, like an abusive spouse the police refused to enforce an order against (the situation in the Gonzales case in the first link), then there are even more barriers. A basic precept of tort law is that there is no duty to control the conduct of a third person to prevent him from causing harm to another absent a “special relationship” between either the dangerous person or potential victim. Restatement (Second) of Torts Section 315.

It doesn’t take too much of a logical leap to see how a parole board has a “special relationship” with a parolee or how child protective services have a “special relationship” with both the children they’re supposed to protect and the suspected abusers they’re supposed to protect those children from, and some courts have adopted that approach — perhaps most notably, the Supreme Court of Arizona in Grimm v. Arizona Bd. of Pardons & Paroles, 564 P.2d 1227 (1977), but many courts don’t see it that way, particularly not for constitutional claims. In DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989),

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

Justice Blackmun’s “Poor Joshua!” lament, though, as a dissent. Joshua wasn’t even allowed to present his case that the Winnebago County Department of Social Services failed him and put him in further danger by leaving him with his father. He lost without his day in court.

That’s what came to mind for me when I read that Jaycee Dugard had sued the United States and a variety of its parole officers (complaint here; a summary here) for a litany of astonishingly lapses in judgment during Phillip Garrido’s parole for rape:

Garrido’s federal parole officers, therapists and counselors described him at various times throughout his federal parole term as follows: ‘a time bomb,’ ‘like a pot boiling with no outlet valve,’ ‘potentially very volatile,’ ‘potential for causing great physical harm is present,’ ‘problems with sexual overtones,’ ‘did not seem honest … as if he was putting on an act,’ ‘possible danger to the community is high,’ ‘major problems are presented in this case,’ ‘there is always threat of repeat [kidnap/rape],’ ‘still seems dangerous to the public … is liable to give little or no warning,’ ‘substantial risk to women,’ ‘is always a threat to women,’ ‘potential rapist.’” …

Despite Garrido’s well-known propensities, federal parole authorities ignored report after report of sexual misconduct by Garrido. For example, Garrido’s parole officers were informed by his 1976 rape victim that shortly after being paroled, Garrido appeared at her workplace and made an alarming comment to her. Inexplicably, the federal parole authorities responsible for Garrido’s direct supervision disregarded the victim’s concerns as mere ‘hysteria’ even though Garrido’s time cards indicated he was not at work during the hours he was alleged to have been seen by the victim. Upon learning of the victim’s statement, Garrido’s own counselor suggested that Garrido be placed on electronic monitoring. Garrido’s parole officer, however, ignored this recommendation and concluded that ‘to subject this individual to electronic monitoring would be too much of a hassle.

The Dugard kidnapping — which, as the complaint alleges, would never happened had the federal government taken the threat Garrido posed towards women seriously — should have become part of the national conversation about the ways that government agencies systematically downplay and under-report rape and sexual assault, but that’s an issue for another day.

For now, there’s the question of the United States’ liability for Dugard’s ordeal. Dugard and her daughters already collected $20 million from the State of California for its role; I don’t know if that reflected an assessment of the merits of her claim or a recognition that the social contract required we do what we can for Dugard and her kids.…
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The “West Memphis Three” have long been a cause célèbre, for good reason: the case had all the hallmarks of a railroad prosecution, from hysteria over Satanism to a coerced confession by a minor with a well below average I.Q. to the lack of any forensic evidence or eyewitness testimony connecting Damien Echols, Jason Baldwin and Jessie Misskelley to the brutal murder of three young boys in 1993.

NPR’s blog sums up much of the story:

The original convictions, based on a theory that Echols, Baldwin and Misskelley killed the three children as part of a Satanic ritual, were the subject of the 1996 HBO documentary Paradise Lost: The Child Murders At Robin Hood Hills and the 2000 follow-up Paradise Lost 2: Revelations. Paradise Lost 3: Purgatory is set to premiere at this year’s Toronto International Film Festival. All three come from filmmakers Joe Berlinger and Bruce Sinofsky.

The case is also the subject of the 2002 book Devil’s Knot.

The first two documentaries — and presumably the third — argue that the three were wrongfully convicted primarily because they were, in a word, weird, and because of fears whipped up in the community by mentions of Satanism.

As the films tell the story, they were misfits in West Memphis, teenagers who listened to the wrong music and dressed the wrong way and made people intensely uncomfortable. Misskelley, a 17-year-old with a reported I.Q. of 72 when he was arrested, confessed to the police after a lengthy interrogation, only to almost immediately recant. The Supreme Court of Arkansas later called the confession, in which he admitted being present but primarily incriminated Echols and Baldwin, “virtually the only evidence” against Misskelley, and noted that it contained “a confusing amalgam of times and events” and “numerous inconsistencies,” both internally and with the actual physical evidence in the case. The court nevertheless upheld his conviction.

After a long, long journey through the court systems, in November of last year the Arkansas Supreme Court unanimously ruled the West Memphis Three were entitled to hearings on whether they could use Arkansas’ DNA exoneration statute for post-conviction DNA testing. Those hearings were scheduled for December when, just yesterday, Craighead County Circuit Judge David Laser announced that the three would be in court the next day.

What The Heck Is Nolo Contendere?

Although the prosecutor has issued a statement (filled with an embarrassing use of capital letters for emphasis) claiming they plead “GUILTY,” various sources have confirmed the nuanced plea bargain:

The so-called West Memphis Three agreed to a legal maneuver that lets them maintain their innocence while acknowledging prosecutors likely have enough evidence to convict them.

“No contest,” a.k.a. nolo contendere, is indeed one of the strangest legal maneuvers on the books, allowing a defendant to plead neither guilty nor not guilty. Even the Supreme Court hasn’t figured out what the plea really means:

Courts have defined the plea of nolo contendere in a variety of different ways, describing it, on the one hand, as “in effect, a plea of guilty,” United States v. Food & Grocery Bureau, 43 F. Supp. 974, 979 (SD Cal. 1942), aff’d, 139 F. 2d 973 (CA9 1943), and on the other, as a query directed to the court to determine the defendant’s guilt. State v. Hopkins, 27 Del. 306, 88 A. 473 (1913). See generally Lott v. United States, 367 U. S. 421, 426-427 (1961), id., at 427-430 (Clark, J., dissenting), 21 Am. Jur. 2d, Criminal Law § 497. As a result, it is impossible to state precisely what a defendant does admit when he enters a nolo plea in a way that will consistently fit all the cases.

Hudson v. United States, supra, was also ambiguous. In one place, the Court called the plea “an admission of guilt for the purposes of the case,” id., at 455, but in another, the Court quoted an English authority who had defined the plea as one “where a defendant, in a case not capital, doth not directly own himself guilty. . . .” Id., at 453, quoting 2 W. Hawkins, Pleas of the Crown 466 (8th ed. 1824).

The plea may have originated in the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter (finem facere) by offering to pay a sum of money to the king. See 2 F. Pollock & F. Maitland, History of English Law 517 (2d ed. 1909). An early 15th-century case indicated that a defendant did not admit his guilt when he sought such a compromise, but merely “that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admittit per finem).” Anon., Y. B. Hil. 9 Hen. 6, f. 59, pl. 8 (1431). A 16th-century authority noted that a defendant who so pleaded “putteth hym selfe in Gratiam Reginae without any more, or by Protestation that hee is not guiltie . . . ,” W. Lambard, Eirenarcha 427 (1581), while an 18th-century case distinguished between a nolo plea and a jury verdict of guilty, noting that in the former the defendant could introduce evidence of innocence in mitigation of punishment, whereas in the latter such evidence was precluded by the finding of actual guilt. Queen v. Templeman, 1 Salk. 55, 91 Eng. Rep. 54 (K. B. 1702).

Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.

North Carolina v. Alford, 400 U.S. 24 (1970). The father of one of the victims, though, has it figured out just right:

The support for the West Memphis Three reaches some of the victims’ relatives who have questioned whether the right people were behind bars.

Byers’ adoptive father, John Mark Byers, said he believes Echols, Baldwin and Misskelley are innocent. He said prosecutors told him that they planned to reach a no-contest plea on Thursday.

“There’s certainly no justice for the three men that’s been in prison or my son and his two friends,” Byers said. “To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.”

Exactly. Either the West Memphis Three murdered three young boys as part of a Satanic ritual or they didn’t. Agreeing to let them out now means the State of Arkansas believes they’re innocent. Like I wrote back when Fairfax County claimed it was “not an admission of liability” when it paid $2 million to settle a wrongful death lawsuit after its police officers pointlessly entrapped and killed an upstanding citizen in his prime, under the circumstances of that case and this case, it most certainly is an “admission of liability.”

The boys should never have been imprisoned at all.

Since most everyone, State of Arkansas included, believes they’re innocent, the question turns around to can they obtain any compensation for nearly twenty years of wrongful incarceration?…
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