Print and Go Back ESPN.com: OTL [Print without images]

Friday, November 18, 2011
Time gap key factor in sex abuse cases

By Paula Lavigne
ESPN.com

Legal experts in New York say it's highly unlikely any criminal charges will be brought against Syracuse associate head basketball coach Bernie Fine, because the two men alleging sexual abuse say the incidents happened so long ago. The statute of limitations has also run out on any pursuit of a civil lawsuit on the grounds of sexual abuse.

Two former Syracuse basketball ball boys, 39-year-old Bobby Davis and his stepbrother, 45-year-old Mike Lang, told "Outside the Lines" that Fine sexually abused them starting in the late 1970s and continuing into the 1990s -- a time span that ranged from when they were young boys to adults.

Although current New York law puts no time limit on an alleged victim coming forward with certain child sexual abuse allegations, any criminal case Lang and Davis would have would be based on the statute of limitations in place while their alleged abuse was ongoing, and that was a period of five years, according to Larry Braunstein, an attorney in White Plains, N.Y., who has experience with child sexual abuse cases as an attorney and is a former prosecutor.

Braunstein, who speaks nationally on the topic and teaches at Hofstra University School of Law, said the issue of adults coming forward long after they had been abused was common several years ago in the wake of the sexual abuse scandals involving the Catholic church.

"In New York state, on the civil side of things and the criminal, you're kind of out of luck," he said.

Even if investigators could prove there were criminal sexual acts against the two men as adults in the 1990s, either by arguing they were forced or otherwise done against their will, he said the statute of limitations still would have expired.

As for pursuing a civil lawsuit against Fine for the child sexual abuse, Braunstein said that time limit ran out a year after the men would have turned 18. He said it might be possible to explore a provision in the law that would allow for someone to bring a case now by claiming he had a psychological condition that prevented him from reporting the abuse -- a type of repressed memory -- but the fact Davis reported the abuse to police in 2003 and then to the university in 2005 makes that argument more difficult.

"On its face, I don't know that he's got any remedies here," he said.

Edward Z. Menkin, a criminal defense attorney in Syracuse who has represented people accused of child sexual abuse, had a similar opinion.

"There is no case," he said. "On this set of facts, there is nothing to prosecute."

Yet representatives of the Syracuse police have said they are investigating. The Onondaga County District Attorney's Office has not filed any charges against Fine, and a spokesperson for the department refused to comment.

"The police department doesn't want to be faulted for getting these allegations and doing nothing about it," Braunstein said, when asked why law enforcement would still launch an investigation. "They need to figure out what was told to them, whether it was properly investigated or whether it was deep-sixed."

Davis told "Outside the Lines" that he reported his abuse to the Syracuse Police Department in 2003 but was told then that there was nothing police could do because the statute of limitations had already run out. It's unclear why the department would have done nothing then but decided to launch an investigation now. Calls to Syracuse police spokesman Sgt. Tom Connellan were not immediately returned.

Both Braunstein and Menkin said that recent publicity surrounding the case involving allegations of child sexual abuse by former Penn State coach Jerry Sandusky, and the possibility of more victims, could have prompted the department to take a second look.

"I'm assuming it's because they want to be sure that there's no similar conduct," Menkin said. "I think it's inevitable that both the university police and Syracuse police want to demonstrate that they're out front on the matter."

Mary Pulido, executive director of the New York Society for the Prevention of Cruelty to Children, said she believes the investigation -- and coming forward with the allegations -- is important, even if there are no criminal charges brought as a result.

"There's not an exact profile of a pedophile, but it's not uncommon for them to be grooming and working to have sex with more than one child," she said, arguing that if the accused perpetrator still has access to children -- as Fine has over the years -- it's certainly worth looking into to see if there are any other alleged victims.

Even if the two men aren't able to take legal action, she said, publicly coming forward with their abuse can be an important step in healing.

"They feel that it's important to confront the offender, to make sure the abuse does not reoccur," she said, adding that it's common for adults to come forward with allegations even knowing their abuser can't be prosecuted. "It's more that they confront the offender, to say that, 'What you did to me was wrong.'"