Are Pennsylvania's child-abuse laws failing children?

Pennsylvania has a reputation on child sex abuse laws that no state should envy.

It was the last state to allow children who are victims to testify against their abusers through video conference.

For years, Pennsylvania gave up federal money because it was the only state not in compliance with federal child abuse laws.

It remains the only state that doesn’t allow experts to testify at trial about the behavior of child victims, such as why they might wait years before coming forward to police, continue a relationship with the abuser, or why they might not immediately tell police about all of the abuse.

There also is no state training for mandatory reporters in Pennsylvania.

And child abuse is defined in such a way that you could walk up to a 5-year-old on the street, punch that child in the face, get convicted by a jury and still not be listed in the state child abuse registry.

If convicted, Jerry Sandusky, the former Penn State coach accused of sexually abusing 10 boys, probably won’t have to register either, simply because child abuse here hinges on a relationship between child and abuser. A family member or a teacher, for example.

If all this seems antiquated, it’s because child-abuse laws in Pennsylvania really haven’t changed much since the 1970s.

Advocates and experts, along with some lawyers, judges and politicians, have been screaming about it for years.

But the country is now focused on the Keystone State. The horrific acts alleged against Sandusky, and the alleged missed opportunities to stop abuse, have grabbed national attention and motivated several other states to propose changes to their laws — Iowa, Washington, Virginia and Georgia, to name a few.

There are 25 states in which legislation was offered in 2012 on the reporting of suspected child abuse.

But those serving on Pennsylvania’s Task Force on Child Protection, which was created in December by the General Assembly to study sex-abuse prevention, say they want to make sure the state isn’t making knee-jerk decisions but instead making thoughtful recommendations to legislators by the end of the 2012 session.

“In Pennsylvania, we are way, way overdue for a real scrubbing and real review and deliberate examination of how we protect children,” said Cathleen Palm, executive director of the Protect Our Children Committee. “We were really needing that five years ago, so now, in the wake of the Penn State scandal, those of us who are advocates of children are exercising a huge, ‘Take a deep breath, let’s be deliberate about this.’ In many ways, there have been some very fundamental flaws in Pennsylvania law in general.”

Several lawmakers have introduced proposals for changing the laws on reporting child abuse. It’s one of the biggest issues that has come of this scandal: Should a person be required to call 911 if child abuse is suspected? And if he or she doesn’t, should the penalty be greater than a summary fine?

Other states reacting to the Penn State scandal are focused mainly on that issue, too. But Palm said it has to be about more than just something that looks good in a news release. So all this week she’s been asking for patience.

“Everyone’s very focused on reporting. ... That’s key, but it is just one of the bullets,” Palm said. “Reporting has very little value if you can’t in fact respond to it the right way.

“The task force is less focused on what press releases get issued and more about what we need to do: fundamental reform,” she said.

A ‘Herculean’ task

On the surface, statistics appear to show that Pennsylvania has a far lower rate of child abuse than comparable states like Ohio, Virginia and New Jersey.

But part of the reason is because Pennsylvania is limited in what it classifies as child abuse.

Only parents, a paramour of a parent, a caregiver or someone older than 14 and living with the child can be considered a perpetrator.

That does not mean police can’t investigate, charge and eventually convict anyone of abusing a child. What it means is that ChildLine, the state hotline and abuse registry used for things such as background checks, would not recognize that person as an abuser.

“From the judiciary down, historically, there’s been concerns about how child abuse is investigated,” said Jason Kutulakis, a Chambersburg attorney.

Kutulakis is on the 11-person committee, and has worked with Children and Youth Services for several years.

“The brush will be very wide when we start this process,” he said. “And I still remain — maybe overly — optimistic that we’re going to do good things. If it’s not going to happen now ... it isn’t going to happen for a really long time. We want Pennsylvania to set the bar to be looked at to do really positive things.”

Given where the state ranks now, that task is “Herculean,” he said.

And there’s another reason Pennsylvania needs to deal with this first: It’s directly linked to mandatory reporting.

“Because even if I’m a mandated reporter calling ChildLine, ChildLine might say, ‘That’s not child abuse,’ ” Palm said. “There’s a whole lot of steps until someone really gets connected to a real investigation, if someone even gets connected to a real investigation.”

On the federal level, U.S. Sen. Bob Casey Jr. proposed legislation that would require all states to give up federal money unless they pass a mandatory reporting law for every adult. Casey introduced the Speak Up to Protect Every Abused Kid legislation one week after Penn State fired head football coach Joe Paterno and President Graham Spanier in the wake of the scandal.

“We keep acting like really a child abused in New Jersey is different than a child abused in Delaware or Pennsylvania,” Palm said. “Why are we not talking about some degree of national standards around reporting?”

Common behaviors

Why would an abuse victim have dinner with his or her accuser?

When approached by police, why might he or she lie about abuse, or admit to only minimal sexual contact?

Why might his or her story change over time? Or why would he or she wait years, even decades, to tell it?

Those behaviors are common in child sex abuse cases, and they are often used by the defense as strategy.

In Sandusky’s case, for example, his attorney has already publicly said that at least one victim told police a story that morphed over time from simply touching to extremely sexual acts.

And 12 jurors unfamiliar with abuse might not understand.

That’s why all 49 other states, the District of Columbia, the federal government and the military allow experts to testify at trial about the behaviors of abuse victims.

Pennsylvania does not. And it causes prosecutors to lose cases, said Greg Rowe, the Pennsylvania District Attorneys Association’s legislative liaison.

“We need to be able to respond in kind that there is a reason for this,” Rowe said. “It’s not the victim’s fault. We can bring an expert to say why this sort of thing happens, why it does not mean that the evidence is less strong as a result.”

The reason for the delay in Pennsylvania is case law that dates to 1988 that such expert testimony shouldn’t be allowed in court in this state. Legislation would override that, Rowe said.

“I understand, having just taken off the judicial robes a little bit ago, the philosophical reluctance to turn trials into battles of experts,” said Dave Heckler, the Bucks County district attorney, a former judge, and chairman of the task force. “That being said, I agree ... that states broadly have reached the conclusion that there are certain behaviors [that are] not necessarily intuitive or part of our general experience. That is a proper subject for expert testimony.”

In September, the state House Judiciary Committee held a hearing on the issue, and the response was positive, Rowe said.

Rep. Ron Marsico’s office moved the bill out of the House by unanimous vote in June, and it’s in the Senate Judiciary Committee, where Chairman Stewart Greenleaf’s office said he supports the idea. But Greenleaf wants to make sure any bill allows for the defense to bring an expert into court, too.

Pennsylvania falls short

Scandal has long been a jumping-off point for advocates.

In 2006, changes were made to expand the state’s statute of limitations laws in child sex abuse cases because of the grand jury report that led to abuse charges within the Archdiocese of Philadelphia.

But comparatively, Pennsylvania still falls short.

There are about 15 states that have eliminated the statute of limitations for criminal cases of sex abuse against children.

In civil cases, Delaware and Maine have done away with it.

Pennsylvania advocates are hoping the case against Sandusky, because it has brought worldwide publicity, will also bring more change.

“I think the Penn State case ... has helped people understand how arbitrary the statute-of-limitations law is,” Palm said. “You can have a child who experiences the same crime at the hands of a perpetrator, but because of the year, their access to justice is different. ... I think this Sandusky case has helped us as a community better understand that.”

There are pending bills — introduced long before Sandusky was a household name — to expand the law further, but so far they’ve had little traction each legislative session.

A nationwide dialogue

Even if nothing changes because of the Sandusky case, there is no denying that it has opened up a national dialogue on sex abuse that is unmeasured for a crime that still carries a strong stigma.

That could help a national push to change the definition of rape, which right now is more in line with old-fashioned ideas like the one the late Paterno referenced when he said he’d never heard of rape between men.

Well, the law doesn’t always call that rape, either.

Many times, it’s classified as a form of sexual assault, which skews national numbers, advocates say.

“The public is going to be better informed in what’s going on in their community,” said Carol Tracy, with the Women’s Law Project. The organization began asking the FBI to take a look at sex crimes reporting more than 10 years ago in response to the way the Philadelphia police department investigated sex assaults.

“The other thing is that funding follows uniform crime data,” she said. “So this data has been deflated for so many years that it's likely adequate funding hasn’t been available to deal with sex crimes, and there’s significant research that tells us that sex predators are serial predators and are often also involved in other violent crime.”

While the FBI considers the change, women’s groups are celebrating another statistic with trepidation.

More women seem to be reporting sex crimes.

It’s not dramatic. But there’s a 10 percent to 20 percent increase in reporting, which is contributing to an increase in court cases.

“I think people are having the conversation much more frequently than they did a decade ago,” said Kristen Houser, vice president of communications for the Pennsylvania Coalition Against Rape.

Local district attorneys say higher reporting numbers are credited to better investigations and better trained detectives.

But these cultural changes don’t translate as much to rape involving two men.

Tracy offered this anecdote: “I got a two-page letter from a mother whose son was raped on a college campus several years ago, and her description on how shoddily he was treated left me speechless.”