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Michael Smerconish

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See Something, Say Something

Posted: 11/13/11 01:11 PM ET

Among the many things that need to change in the aftermath of the Penn State scandal is Pennsylvania law.

First, the commonwealth needs to require that any witness to child abuse call the police. Second, the statute of limitations for civil claims against child abusers needs to be expanded.

Consider that when Mike McQueary saw a 10-year-old boy being raped in the shower at the campus' Lasch Football Complex, he was under no legal obligation to dial 911 -- much less intervene. According to the grand jury report, on March 1, 2002, McQueary saw Jerry Sandusky, a retired Penn State coach, raping a boy believed to be about 10 years of age. The report makes no mention of any intervention.

Instead, the report says the 28-year-old graduate assistant told his father, and the father suggested he tell Joe Paterno, which he did the next day.

Pennsylvania's Child Protective Services Law was put on the books in 1975. The law imposes a child-abuse reporting mandate on any individual who comes into contact with children in the course of his or her work or professional practice -- medical professionals, child-care workers, teachers -- and has "reasonable cause to suspect" that the minor has been abused. The law requires these "mandatory reporters" to notify a person in charge or a designated agent, not the police.

Arguably, applying the law to McQueary, he discharged his duty when he reported what he'd seen to Paterno, his supervisor, not law enforcement.

"Shouldn't we all be mandatory reporters?" asks Mary C. Pugh, executive director of Montgomery Child Advocacy Project. "Who is expected to take care of abused and neglected children? I think everyone."

She notes that aside from "mandatory reporters" mentioned in the state law, Pennsylvania does not require the report of any crime against a child, however heinous.

"Common decency and the moral conscience dictates that a person try to stop the commission of a vile crime, like the rape of a child, or at the very least a report to authorities," Pugh said. "As a child advocate, I see too many children who have been abused physically and sexually, and many people knew or should have known....

"Sadly, there is still a stigma about sexual abuse where people do not want to get involved -- it is too dirty. Everyone needs to take ownership and protect the children who are being harmed by those whom they trust. It is our duty as people."

Delaware Attorney General Beau Biden agrees with the idea of mandatory reportage for all. He has made the prosecution of child sex abuse a top priority. Next week, his efforts will be recognized by the national Darkness to Light Foundation for his work with the Stewards of Children program, which trains adults to recognize the signs of child abuse. In an email, Biden told me:

"It is not a child's job to protect himself or herself from abuse, it is our job as adults. That is why in Delaware, everyone has a mandatory responsibility under the law to call our Child Abuse Hotline (1-800-292-9582) when we see a child in danger. When only one in 10 abused children reaches out for help, we know that it falls to the adults to see the signs and make the call."

In Pennsylvania, the law is insufficient when it comes to the civil recourse available for child sex-abuse victims.

State law generally provides that a claim for personal injury must be brought within two years of the wrongful act. However, if the victim was a minor when the wrongful act occurred, the two-year limitations period is extended until the age of 20. For example, in a medical malpractice case, an injured child can file suit up until he turns 20.

In cases involving child sexual abuse, the victim has 12 years (not two) after turning 18 in which to file an action. But to get the benefit of these extra 10 years, there must be a showing of "forcible compulsion."

A 1988 Pennsylvania Supreme Court ruling demonstrates the deficiency.

In that case, the guardian of a 14-year-old girl threatened to send her to a detention home if she didn't submit to his demand for sex. The court said the threat did not meet the "forcible compulsion" test, making the victim ineligible to file a claim after she turned 20. In order to apply the shorter statute of limitations, the same defense might be tried against some of the Penn State victims.

"Some courts have interpreted 'forcible compulsion' narrowly, throwing out cases that should be allowed to proceed," explains Shanin Specter, a Philadelphia trial lawyer at a law firm where I maintain an affiliation. "But we all know that it can take years for a victim of child sexual abuse to be ready and able to vindicate their rights in court. So anyone who has been a victim of child sexual abuse should be allowed to bring their claim until 12 years after they become an adult -- that is, by the age of 30."

Report any child abuse to police. Expand the time victims can have to seek justice. No one who reads the 23-page grand jury report can deny those changes are needed.

This piece originally appeared in The Philadelphia Inquirer.