Sandusky case: As Penn State girds for civil suits, it faces a dilemma

Beyond the criminal charges against Penn State officials as a result of the Sandusky case, a growing number of civil suits are likely. But depending on how the university chooses to defend itself, it risks a PR disaster.

By MARK GUARINO | Staff Writer Christian Science Monitor

posted November 21, 2011 at 4:00 pm EST

With pedophilia allegations at Penn State already being debated in the streets, the media, and even the football stadium, the university is preparing for the next arena for the scandal: the courtroom.

Aside from a criminal case that is expected to open next year, a series of civil lawsuits are in the works, not just from the eight alleged victims of former coach Jerry Sandusky, but from many others expected to come forward in coming months.

Sandusky, a former defense coordinator for the university’s football team, was arrested and charged with 40 counts of sexual abuse Nov. 5. He says he is not guilty.

The university is vulnerable because the investigation suggests it knew that Mr. Sandusky was suspected of preying on children and did little to stop it. But Penn State faces a dilemma: some of the options available to it as it considers a legal defense could have negative repercussions on its reputation.

Given the growing number of plaintiffs, the alleged cover-up described in the grand jury report, and possible civil rights violations that might push some lawsuits to federal court, the legal picture for the university is expected to get very messy, very fast.

While the university board of trustees is downplaying the possibility of civil lawsuits, it recently hired Reed Smith, a high profile international law firm with an office in Pittsburgh. Penn State also recently hired Ketchum, an international public relations agency.

The number of Penn State officials indicted by the grand jury investigative report suggests that the pending civil suits will cast a wide net in seeking damages to increase the likelihood of receiving compensation. “A wise plaintiff lawyer will sue everybody,” says Norm Pattis, a criminal defense and federal civil rights lawyer based in New Haven, Conn.

Then there’s the growing number of plaintiffs expected to step forward. The Associated Press reports that there may already be as many as 20 victims. In Pennsylvania, the statute of limitations in child abuse cases was extended in 2007, giving the victim until his or her 50th birthday to file charges.

Because the alleged abuse in the Penn State scandal is reported to have taken place between 1994 and 2009, the possibility of many more potential plaintiffs stepping forward is likely. Not only will more plaintiffs make it more difficult to defend, the defense will have a hard time providing alibis for accusations that took place so far in the past.

And there’s also the potential problem of phantom, or fraudulent, claims.

“Any guy within spitting distance of Penn State … can make a claim against the university,” Mr. Pattis says. “How can you defend yourself against that?”

One strategy for rebutting phantom claims is for Penn State to map a timeline for its athletic department that tracks the 15 years Mr. Sandusky is alleged to have been abusing boys. If the university can account for the movements of everyone rotating through the department during that time, it may find it easier to refute plaintiff testimony.

Another strategy the university might consider presents officials with perhaps their most daunting dilemma: researching whether or not the university can claim sovereign immunity, a loophole in the law that prevents suing a state entity that relies primarily on public funds. The university’s board of trustees is free to make a policy decision to invoke sovereign immunity or not.

While invoking immunity is certainly within the university’s rights, it would be politically rash to do so. Officials are already showing remorse and expressing a commitment to rectify the university’s moral failures, which will be contradicted if it puts up any roadblocks for plaintiffs.

Penn State is already in danger of contradicting itself by paying for the defense of athletic director Tim Curley and vice president Gary Schultz, who are both charged with lying to the grand jury and failing to report the abuse to the police.

“By firing the people it has fired, [Penn State] has already suggested that it knows there was wrongdoing,” says Andrew Pollis, who teaches law at Case Western Reserve University in Cleveland. He says it is more likely the university will settle civil cases that can prove abuse rather than risk, not just bad publicity, but the danger of having unforeseen details about the cover-up come out in courtroom testimony.

“They are going to want to over come the bad PR by settling with as many of these plaintiffs as it can. The PR is so bad for them that even if they have good legal arguments, they don’t seem to be legal arguments that challenge that these kids were abused,” Mr. Pollis says.

Even though civil and criminal suits are traditionally disconnected from one another, both sides will likely prefer having the former follow the latter.

For plaintiffs, a criminal conviction delivers their attorneys in the civil trial months of legwork they can use to strengthen their case. For defendants, having a criminal trial first is also in their favor: the jury cannot hold it against a defendant if they choose not to testify, which gives them an incentive to say nothing, not cause any damage, and hope for an acquittal. In a civil case, the jury is allowed to infer wrongdoing if the defendant chooses not to testify.

Which court hears the civil suits is also in question. Common law protections are typically argued in state court, but the plaintiffs also have the option to file suit in federal court if they feel their constitutional rights were violated.

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