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I remember sitting in that courtroom in Bellefonte about day 3 of the trial, having to remind myself to stay present in the moment - to bear witness and to truly listen to the young man who was on the stand telling HIS truth.  You see, the stories --- how Jerry Sandusky groomed his young victims, riding in the car with the hand on the leg, the workouts, showers, soap wars, leading eventually to the rape of these little boys --- had become so rote, dare I say redundant, that I had to remind myself to physically be present, to honestly bear witness to THIS story, rather than become tone deaf because we had "heard it all before."  For this young man, this was his first telling - this was his life that was ripped apart and it was important to SEE, HEAR and BELIEVE him.

Similarly - let us now not breeze over yet ANOTHER story of child sexual abuse and  institutional cover up...  

Poly Prep Country Day School


Poly Prep Country Day School, one of New York's most prestigious private schools, has agreed to settle a landmark lawsuit claiming its longtime football coach sexually abused hundreds of boys over a 25-year period and that officials covered up the assaults for decades. The settlement ends a three-year legal and public relations battle that divided parents and alumni and turned the elite Brooklyn school into a symbol of institutional indifference to sexual abuse in youth sports.

The explosive suit, filed in 2009, claimed officials at the Dyker Heights prep school knew that coach Phil Foglietta was a sexual predator, but ignored repeated complaints during his 25 years at the school because they didn't want to jeopardize the institution's athletic reputation and fund-raising efforts.

 One plaintiff says former Poly Prep athletic director Harlow Parker saw Foglietta abusing him in a shower and simply walked away without stopping the assault, just as a grand jury report describes Nittany Lions receivers coach Mike McQueary as failing to act when he witnessed the now-convicted Jerry Sandusky allegedly raping a boy in the showers of a Penn State locker room.

For over 25 years, it is estimated that this coach abused hundreds of young boys while administrators looked the other way.  Institutional indifference and child sexual abuse  - as history has shown, this is far too common in our society.  Do we really care more about our football programs, image, money, than we do about the innocent lives of children??

He could have been stopped after one of the first rapes


A few months after Foglietta arrived at the school, the suit says, a student named William Jackson complained that the coach had sexually abused him. Parker and then-headmaster J. Folwell Scull, according to the suit, told Jackson's parents that Jackson made up the allegations and threatened to expel him if he raised them again. That was the beginning of a coverup, Mulhearn has argued, that not only allowed Foglietta to rape and assault students for more than 20 years, but also prevented his clients from pursuing litigation against the school in a timely fashion.

A Watershed Moment for Survivors - Statute of Limitations

Poly Prep attorneys argued that the suit, filed in Brooklyn federal court, should have been dismissed because it was filed long after the statute of limitations had expired.  But federal judge Frederic Block, in what may be a watershed moment for sexual abuse survivors, ruled in August that portions of the suit could proceed because administrators may have lied when they said they did not become aware of the abuse allegations until 1991.

New York state law requires survivors of childhood sexual abuse to file a case by the time they are 23 years old. But Block agreed with Mulhearn when he allowed portions of the suit to proceed in August, ruling that Poly Prep could not use the statute of limitations to block the suit if administrators had consistently lied about when they first learned about the allegations. The coverup, according to lawyers for the plaintiffs, continued even after the suit was filed: They complained that Poly Prep and its attorneys, led by Jeffrey Kohn of O'Melveny and Myers, refused to testify honestly or provide requested documents, prompting Pollak to sanction the school in 2011 for discarding documents relevant to the case. In June, Pollak again said there was ample evidence that indicated the school and its legal team were attempting to defraud the court and the plaintiffs.

This could have huge legal ramifications in many cases - particularly as it relates to the Boy Scouts of America, the Catholic Church, Penn State, Horace Mann, Jimmy Saville and the BBC, et al...

It appears to me that this precedence setting ruling may provide the opportunity for victims of child sexual abuse to bring charges even if they are outside the statute of limitations.  

More after the jump...

The Statute of Limitations in Criminal Proceedings - Court Decisions

(emphasis mine)

In criminal cases, courts sometimes have applied two exceptions to the statute of limitations under the common law doctrines of "concealment" and "continuing crimes."  These doctrines originally were developed in other areas of criminal law and focus on tolling the statute until the secrecy of the act ends.
 

Thus, under the doctrine of concealment, the defendant's efforts to conceal the crime by threatening or intimidating the child not to report the sexual abuse justifies tolling of the statute until the concealment has ceased.  The defendant's efforts to conceal the crime are seen to waive his right to the protection of any statute of limitations until he ceases these efforts.  

In one case, the Nevada Supreme Court held that pornographic film hidden by the defendant permitted tolling of the statute of limitations in a criminal child sexual abuse case. (Walstrom v. State, 752 P.2d 225 Nev. 1988)  Other courts, however, have found that concealment did not apply in a child sexual abuse criminal case. Sears v. State, 356 S.E. 2d 72 Ga. Ct. App. 1987).

The continuing crimes doctrine in child abuse cases is based on the idea that any pressure on the child to disclose or use of authority to prevent the victim from reporting the abuse is a continuing crime.  Because the statute of limitations does not begin to run until a crime is completed, invoking the continuing crimes doctrine has the effect of tolling the statute until the crime is reported.  At least one court applied this theory to toll the statute of limitations in a criminal child sexual abuse case in which the child told the mother, who did nothing (State v. Danielski, 348 N.W. 2d 352 Minn. Ct. App. 1984).

Changes in the Catholic Church

...new clerical sexual abuse guidelines were issued in July 2010, in an attempt to clarify and give broader powers to church authorities dealing with cases of molestation, specifically the CDF.

First, the substantive "Norms" that deal with delicia graviora, or grave crimes against the church, were streamlined. In Article I, they make clear that the CDF is the only congregation to which cases against the Sixth Commandment are to be directed and that it is the one office that can impose canonical sanctions. Second, the guidelines included new crimes, including predatory behavior against a minor below the age of eighteen and perversions against "a person who habitually lacks the use of reason," as well as the "acquisition, possession or distribution" of child pornography. Third, they also allowed allegations to be made as long as twenty years after an individual has reached his eighteenth birthday.

And while both of these go a long way in allowing victims time to report, we still have a long way to go in dealing with the cover-up, which allows pedophiles to abuse again...
Conspicuous by its absence, however, was the lack of a canonical requirement to report predatory priestly behavior to civil authorities, thus leaving open the possibility of further church-state disputes over confidentiality, ecclesiastical records, clerical punishment, and financial liability.
References:

Bulkley, J. A., & Horwitz, M. J. (1994). Adults Sexually Abused as Children: Legal Actions and Issues. Behavioral Sciences & The Law, 12(1), 65-87.

Jo, R. F. (2011). Catholic clerical sexual abuse: Effects on vatican sovereignty and papal power. Journal of Church and State, 53(4), 523-544.

Originally posted to TreeClimbers on Wed Jan 16, 2013 at 08:47 AM PST.

Also republished by House of LIGHTS.

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