In sex-abuse cases of minors and school cover-ups, while there's no dearth of sympathizers and honestly indignant people, there's real scarcity of the number of approaches to compel school administration to act, or to come up with incriminating evidence. Besides evidence, more often than not, the problems faced by attorneys relate to procedural rules, laws of limitations, and the actual laws and sections under which charges are made. This article mentions the first time (August 2012) that civil racketeering claims have been allowed to go forward in a sex abuse case. There was little way out for the victims as the alleged predator died a natural death before any criminal charges were brought against him.
When fighting against a school administration engaged in cover-up of the activities of sexual predators, the RICO or the Racketeer Influenced and Corrupt Organizations Act can be a big weapon in the arsenal of those fighting for victims. In a recent case this August involving a famous Brooklyn prep school, the RICO was tested and while most charges could not be sustained, some were allowed to go forward. The information on the matter would help any attorney in similar situation to design his strategy, and this is why we have included the following information on Zimmerman et al v. Poly Prep Country Day School et al, U.S. District Court for the Eastern District of New York, No. 09-4586.
The lawsuit charging school administration of covering up sex abuse
In the lawsuit against the Poly Prep Country Day School, the plaintiffs claim that the prep school covered up decades of sexual abuse by a former football coach. One of the major difficulties in the case is that the alleged abuser is already dead for over a decade and there is no way to make him testify.
The lawsuit has been brought by 10 former students of the school and two men who, while still underage, attended the school's summer camp. One of the plaintiffs happens to be a current partner at Simpson Thacher & Bartlett in Hong Kong.
The accused Philip Foglietta, a football coach at Poly Prep school from 1966 to 1991, died in 1998.
The problem with the law of limitations
It's mostly difficult to nab sex abuse at school, particularly if the abuser is a person with connections and smart enough to cover his/her tracks. Schools and educational administrations go out of their way to cover up things (as in the Penn State case of Jerry Sandusky) for protecting lily-white reputations, and consequently it becomes terribly difficult for attorneys representing the victims to make headway. Decades of cover-up and personal frustrations of victims leads to limitation running out.
Under New York law and under most similar laws, minor victims of sexual abuse have three years from the date they turn 18 to bring charges, otherwise negligence claims against the school or educational institution become time-barred.
However, the defendants are precluded from arguing victims' claims are time-barred if evidence shows a school knew about and concealed abuse allegations during the period the statute of limitations was running on the claims of victims. The problem is with getting the school to reveal evidence, and this is where the RICO is of immense help.
What stood and what didn't under RICO against the school
According to the plaintiffs, the Poly Prep school and several former and current administrators covered up reports of the predator's abuse in order to protect the school's reputation. The school denied.
The judge dismissed those claims under RICO that related to damages including medical care and diminished educational and employment opportunities allegedly flowing from the years of abuse.
RICO claims brought against current and former administrators by plaintiffs, who submitted that they would not have made donations to the school had they been aware of the cover-up, were allowed to go forward and now the school faces an evidentiary hearing.
According to the judge, financial contributions “are precisely the sort of injury for which RICO was designed to remedy.” Consequently, while dismissing other claims, the U.S. District Judge Frederic Block allowed Title IX claims and state-law claims for negligent retention or supervision and breach of fiduciary duty to move forward, despite the school pleading that such claims were time-barred.
The judge observed, “The scheme alleged is more than just a string of isolated statements … Rather, it is a decades-long attempt to conceal the school's knowledge of Foglietta's despicable conduct.”
While the case is being closely watched, it has already been proved that the RICO can be used in unusual cases like this to force school administration to produce relevant evidence if some donors to the school agree to be involved.
