By Peter Hall (The Morning Call)
June 30, 2012
Jerry Sandusky's defense attorneys seized on the fact that many of the former Penn State assistant coach's victims waited years to report being abused in an effort to create doubt in jurors' minds.
A law signed Friday by Gov. Tom Corbett will allow prosecutors to explain to jurors through expert testimony the psychology that often leads victims of childhood sexual abuse to delay reporting the crimes.
The law, which takes effect in August, will be a powerful tool for prosecutors to counter a common defense in sexual abuse cases where young victims have suffered in silence because they were scared, ashamed or embarrassed about what happened, a legal expert said.
"This law gives victims a voice to say what they cannot otherwise articulate," said Barbara Ashcroft, a former sex crimes prosecutor in Montgomery County. "They don't have the psychological expertise or the wherewithal to be able to explain why they didn't report it because they don't understand themselves."
But criminal defense attorneys opposed the bill, which passed the state House as jurors deliberated Sandusky's guilt last month, saying the expert psychological testimony it allows lacks a sufficient basis in science to be admissible in court.
"The Legislature has seen fit to give the prosecutors a tool of which the judiciary has been skeptical," Easton criminal defense lawyer Gary Asteak said.
Barbara Zemlock, president of the Pennsylvania Association of Criminal Defense Lawyers, said the law does not require experts who will testify about a sexual abuse victim's behavior to undergo the same legal tests to establish a scientific foundation for their testimony as experts on, for example, DNA analysis.
Zemlock said the criminal defense lawyers association also argued the law violates the Pennsylvania Constitution's separation of powers clause, which reserves the ability to make court rules for the judiciary.
And the association noted that the law would create tension with the state Supreme Court's eventual decision on a case that deals with similar issues.
When and how victims reported abuse was a central theme in the June trial where Sandusky was convicted June 22 of 45 counts that he molested young boys he met through his charity for at-risk youth.
Senior Deputy Attorney General Joseph E. McGettigan III noted in his opening and closing statements in Sandusky's trial that humiliation, shame and fear combined to cause the victims' silence. McGettigan asked each why they didn't tell anyone about the abuse.
The eight young men who testified against Sandusky replied variously that they were scared, embarrassed to tell their parents or feared losing the father figure Sandusky brought into their troubled lives.
Sandusky's lawyers tried to create doubt about the victims' motives by highlighting those delays in reporting the abuse, along with the fact that many of Sandusky's victims hired civil lawyers.
Ashcroft said Sandusky's defense was a textbook example of how defense attorneys can take advantage of a victim's delay in reporting abuse.
"The only thing the prosecutor had in their tool bag was to have the victim explain it," Ashcroft said. "Now you have the ability to have an expert explain that dynamic in a way that will make that more palatable for the jury.
"It levels the playing ground because it gives the prosecution a really valuable tool, but that doesn't change the fact that at the end of the day the jury has to believe the victim," Ashcroft said.