Read more about Philadelphia priest molestation lawsuits. This post is cross-posted on the Philadelphia Priest Abuse Trial Blog.

On Thursday, after the prosecution closed their case, Judge Sarmina swiftly dismissed the conspiracy charges against Monsignor Lynn and Father Brennan.  Although the move caught some observers by surprise, it was likely not a surprise to the prosecutors.  To prove a criminal conspiracy, the Commonwealth has to prove beyond a reasonable doubt that the defendants had a “shared criminal intent,” defined by Pennsylvania law as “the common understanding that a particular criminal objective is to be accomplished.” Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. Ct. 2002). Whatever Monsignor Lynn’s crime was, the evidence did not show, beyond a reasonable doubt, that he intended for children to be molested.  Thus, the conspiracy charge was plainly difficult to prove from the onset, and the dismissal is not surprising given the actual evidence presented.

Which brings us to the core question of this case:  What was Monsignor Lynn’s intent?

For centuries, the English common law, and subsequently the American common law, has required that criminal convictions include proof of two separate elements:  the mens rea (the guilty mind) and the actus reus (the guilty act).  In Lynn’s case, he is charged with endangering the welfare of children, and I don’t think anyone can genuinely dispute that Monsignor Lynn’s actions in fact endangered the welfare of children within the Archdiocese of Philadelphia’s parishes and schools.  There is no denying that, as of at least February 18, 1994, when Lynn drew up the list of 35 sexually abusive priests, Lynn’s acts — such as his involvement in transferring priests around once allegations were made — and his inactions — such as his failure to ever report any of them to the police — allowed abusive clergy to keep preying on children in the community.  But it is a fundamental premise of our criminal law that the magnitude of the damage caused is not by itself enough to prove that a crime occurred, the prosecution must also prove he had the mens rea for the crime.

Proving mens rea is inherently difficult; “for who among men knows the thoughts of a man except the man’s spirit within him?” 1 Corinthians 2:11. It is only on television that defendants suddenly concede at trial their own guilt and malicious intent.  In real courtrooms, defendants never confess on the stand, and they also typically have not left behind “smoking gun” emails or letters outlining their wicked plans. Mens rea is thus typically proven through circumstantial evidence, and that’s why the prosecution put on the case they did, which at many times looked more like an indictment of the Catholic Church itself than of Lynn personally.  
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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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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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[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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