By Jon Campisi | Dec 21, 2011

The outcome of Jerry Sandusky’s highly anticipated criminal trial, which is expected to take place sometime late next year, could very well hinge on a little known provision in Pennsylvania law.

At least little known to those outside of the legal world.

The Keystone State remains the lone holdout among the 50 that does not allow expert witness testimony in cases of rape and sexual crimes.

Being the only state that prohibits such testimony in these types of cases has given Pennsylvania somewhat of a reputation as being lenient on accused rapists.

When Sandusky, the former Penn State assistant football coach accused of molesting young boys over a 15-year period, goes on trial, his defense team could have the upper edge, some legal experts say, since not allowing expert witness testimony might lead jurors to conclude that alleged victims waited so long to report the crimes because they’re making it up, not because of other factors, like shame or embarrassment, which experts say is so often the case.

Part of the problem is reflected in standard instructions given to by Pennsylvania judges to juries, a section of which is titled, “Failure to Make Prompt Complaint in Certain Sexual Offenses.”

The section reads, “The evidence of [name of victim]’s [failure to complain] [delay in making a complaint] does not necessarily make [his] [her] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make.”

In a nutshell, because experts, such as therapists and psychologists, are prevented from offering testimony during such trials on things such as why an accuser might wait so long to report the alleged crime to authorities, jurors might question the credibility of said accusers.

Organizations such as the Pennsylvania Coalition Against Rape have lined up behind a bill that would bring Pennsylvania in line with the rest of the country as far as testimony of expert witnesses are concerned in cases of sexual assault.

House Bill 1264, cosponsored by state Reps. Cherelle Parker, (D., Phila.), and Kate Harper, (R., Montgomery), passed the state House back in June on a 197-0 vote.

It currently sits in the Senate Judiciary Committee.

If it becomes law, the measure would finally allow experts to testify during trial on factors such as common behaviors of sexual assault victims.

“People get their information from shows like SVU … but the reality is most people don’t understand what they see as counterintuitive behavior is something I see all the time,” Diane Moyer, legal director of the Pennsylvania Coalition Against Rape, said in a phone interview with the Pennsylvania Record.

Moyer, an attorney, is a strong supporter of H.B. 1264. She said children are the best reason for passing the bill, since kids are taught to respect and obey adults, even those who “groom” them for sexual assault.

This means youngsters who are molested are often reluctant to report their abuse.

The Sandusky case is particularly germane to the issue, Moyer said, since here was a highly regarded member of the community whose alleged sexual crimes against children didn’t come out until years after they were allegedly perpetuated.

“It’s not just the Sandusky case. I call it the local hero syndrome,” Moyer said. “They [victims] already have a credibility issue with the public and the community, and now they’re going to speak out against someone who’s gotten awards.”

The way the law is currently set up in Pennsylvania means not only will accusers possibly be second-guessed by members of the public; they could be looked at critically in court as well.

“How is a kid supposed to come forward and be believed,” Moyer said. “Then when we get to the jury trial, what is the jury expected to think.”

If the proposed bill passes, experts would be able to explain to members of the jury, often laypeople, why, for example, a victim of sexual assault waited so long to contact authorities, or took a shower immediately after a crime, even though the cultivation of physical evidence would have been beneficial to their claim.

Other behaviors might also be explained within this context, Moyer said. After a child had been molested, for example, they might act out, be defiant, have trouble sleeping or performing in school.

“They don’t look like what we might think a victim might look like, they might just look like a bad kid,” Moyer said.

She called this the “perfect setup” for a child molester, who could point those behaviors as typical childhood acts as opposed to the behaviors of a victim of sex abuse.

“We need a way for prosecutors to be able to put on expert witnesses to say, ‘this can be typical victim behavior,’” Moyer said. “I think we need to start with children being believed.”

So, just why has Pennsylvania never allowed expert witness testimony in rape cases? Moyer said it comes down to the simple fact that case law has thus far prohibited it.

Pennsylvania judges have ruled that laypersons, i.e. jurors, can, in fact, understand rape victims, and do not need the assistance of expert witnesses.

The bill’s fate remains uncertain. With the legislative session dwindling down, it appears as though the bill will have to wait to be addressed until the New Year.

For now, people like Moyer, as well as some members of law enforcement and prosecutors, will continue to stand behind the bill.

“I’d like to see it [become] a priority when they [the legislature] come back,” Moyer said. “If people want to do good victim bills, this is one that needs to get passed.”

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