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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.

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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.

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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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