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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Norm Pattis’ latest blog post raises an issue near and dear to me: the ethics of personal injury lawyers. I certainly don’t think personal injury lawyers are above reproach, and I’ve commented before on some of the stupid things they can do, but I’m not going to sit quietly and nod politely when a lawyer in another field claims its unethical for an alleged victim’s lawyer to zealously represent their client.

Norm is a criminal defense lawyer; as he posted a few days ago, the next year brings for him “trials involving child sex abuse, child pornography, drugs.” I’m going to go out on a limb and speculate that at least one of those defendants is in fact guilty of at least one crime with which they’re charged, and yet I wish Norm the very best in his defense: that’s his job, and he is required to zealously represent his clients and use every appropriate tactic available to further their defense. That’s how our adversarial system works. That’s how constitutional rights are protected.

Norm, however, apparently doesn’t have the same respect for what the civil lawyers for sexual abuse victims do.
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Read more about our legal work for rape and molestation victims.

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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As a Yale alum, I was shocked and horrified by the death of Annie Le, a Yale School of Medicine student murdered just a week before her own wedding. Like the Petit family murders, the crime was just a depraved act by a stranger, despite attempts by some to downplay it as a “crime of passion” or “workplace violence,” as if any rape-murder were less evil if the perpetrator had delusions of attachment at the time of the crime or if they happened to be employed by the same company. She was targeted and it was murder; we know that from the guilty plea. It may have been sexual assault, too; Raymond Clark submitted an Alford plea to that.

Last week, just before the statute of limitations for negligence would run, Le’s estate filed a wrongful death lawsuit against Yale:

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harrassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

The complaint is here. While I can understand why the estate’s lawyers, Joseph Tacopina (Greenfield, who knows him, has a bit more about him here) and Paul Slager, want to tie Le’s death to the Title IX problems at Yale and thereby generally show university indifference to women’s safety, I don’t see that serving as enough of a factual basis for an independent legal claim. There’s no clear causal connection between Yale’s sexual harassment / sexual assault policies and Le’s death; as far as I’ve seen, Le never filed any sort of sexual harassment or sexual assault claim at the school, so it’s hard to claim that, if those policies had been better, she wouldn’t have been murdered.

Although there’s technically an inadequate security claim in there arising from the security of the building and the failure to search for Le, I don’t see the causal connection there: from all accounts, it seems that, if they had searched earlier, they just would have found Le’s body earlier, rather than preventing the attack.

The strongest claim is predicated on the hiring of Clark himself, and that claim has a bit more behind it and a much closer connection to her death:

The complaint alleges that Yale was negligent in its screening of Clark, who had shown “a violent propensity towards women” before he was hired in 2004. As police began to investigate his possible involvement in Le’s death in mid-September 2009, the New Haven Independent reported that Clark forced his high school girlfriend to have sex with him when they were students …

In addition to Clark’s records, the suit alleges Yale had access to information about Clark’s violent past because the University also employed Clark’s sister and brother-in-law as laboratory technicians in the 10 Amistad St. building where Le was killed. Those two employees were both “well aware” of Clark’s past behavior given their relationship to him, the suit claims.

This sort of negligent hiring claim isn’t novel. The primary case in that field is Ponticas v. KMS Investments, 331 N.W.2d 907 (Minn. 1983). It wasn’t the first, but it’s probably the most frequently cited, and it set the path for tort liability where an employer is alleged to have negligently hired a dangerous or incompetent person:

Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.

Connecticut’s appellate court has already adopted the same theory in Seguro v. Cummiskey, 82 Conn.App. 186 (2004):

A review of case law in other jurisdictions reveals that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party. See, e.g., Island City Flying Service v. General Electric Credit Corp., 585 So. 2d 274, 276 (Fla. 1991)(“employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others”); Henley v. Prince George’s County, 305 Md. 320, 336, 503 A.2d 1333 (1986) (employer has duty to use reasonable care to select employees competent and fit for work assigned to them); Ponticas v.K.M.S. Investments, 331 N.W.2d 907, 910 (Minn. 1983) (“person injured by a negligently retained employee may recover damages from the employer”); Di Cosala v. Kay, 91 N.J. 159, 170-71, 450 A.2d 508 (1982) (“employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees”); Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 346 (R.I. 1994) (recognizing “`direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or unsuitable employees’”); Welsh Mfg. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984) (“employer may be directly liable for wrongful acts of its negligently hired employee”); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208-209, 372 S.E.2d 391 (1988) (recognizing tort of negligent hiring).

Unfortunately, it looks like a hard sell for the Le estate.
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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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Read more about our law firm’s Pennsylvania sexual assault lawyers.

Yesterday the Third Circuit released a unanimous precedential opinion in Reedy v. Evanson:

While working as a cashier at a convenience store, nineteen-year-old Sara R. Reedy was sexually assaulted and robbed at gunpoint by a serial sex offender. She reported the crime to