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Wednesday, November 30, 2011

Ind. Courts - Judge rules the school corporation itself cannot be held criminally responsible for failing to report sex abuse

Two stories about a ruling a week ago by LaPorte Superior Court 3 Judge Jennifer Koethe.

From Stan Maddux' NWI Times report:

LAPORTE | Charges have been dismissed against the LaPorte Community School Corp. but criminal cases against two school officials on allegations involving a coach and player having sex are still moving forward.

"We're disappointed but we kind of expected it," said LaPorte County Prosecutor Robert Szilagyi on Tuesday.

LaPorte Superior Court 3 Judge Jennifer Koethe ruled Wednesdays in favor of a motion by the defense to dismiss a Class B misdemeanor charge of failure to report against the school corporation.

Prosecutors alleged the school corporation should be held criminally responsible for LaPorte High School Athletic Director Ed Gilliland and LaPorte High School girls volleyball coach Mary Beth Lebo not reporting sexual abuse between an assistant coach and player to the proper authorities. * * *

During a Nov. 2 hearing, school corporation counsel Martin Kus said governmental entities cannot be held criminally liable for the actions of its employees under a 2005 decision by the Indiana Supreme Court.

Prosecutors argued the high court ruling applied to civil cases.

And, prosecutors specifically pointed to a criminal statute governing public or private institutions and failure of its employees to report acts such as child abuse.

Szilagyi argued the school corporation was a public institution and, therefore, its actions came under scrutiny of the law.

However, Koethe in her written decision ruled there is nothing specific in the Indiana criminal statutes that clearly allows a school corporation or any other governmental entity to be charged with a crime.

She also pointed to the 2005 Indiana Supreme Court decision involving a case against the Brownsburg Community School Corp.

In that case, the justices ruled, "We have found no criminal code in this country that imposes criminal liability" on a governmental entity.

"The state's arguments in this matter are unconvincing," said Koethe in making her decision.

From Matt Fritz' story in the LaPorte HeraldArgus:
Last week La Porte County Superior Court Three Judge Jennifer Koethe granted the school’s motion to dismiss charges it allegedly failed to report instances of child abuse in the case of former volleyball coach Robert Ashcraft, who was sentenced for sexual relations with one of his underaged players.

The dismissal was based on case law that bars the state from pressing charges against other governmental entities.

The motion was filed by defense attorneys David Jones and Martin Kus, who argued that government entities couldn’t be charged with a crime by the state.

The state, in turn, argued that the school corporation was an exception to this rule since it wasn’t sovereign and couldn’t make laws or ordinances.

But Koethe’s order for dismissal didn’t agree.

After acknowledging that there were no cases where a governmental entity was charged with a violation of a criminal statute, the order said there were two cases where the entities were charged with civil crimes. And these were both shot down, one by the appellate court and the other by the state supreme court.

The Indiana Supreme Court said “state law also finds the concept of a crime by the sovereign to be an alien notion.”

“The state’s arguments in this matter are unconvincing based upon the clear direction provided by the Indiana Supreme Court,” Koethe said in the order.

“We think she came to the right decision,” said defense attorney David Jones. “We don’t think there was any legislative intent for the state of Indiana to prosecute another government entity such as the school corporation. One part of the government can’t bring a charge against another part of the government.”

But La Porte County Prosecuting Attorney Bob Szilagy said the prior cases used in this decision weren’t really apt to the current prosecution.

“They involved civil action for punitive damages not criminal actions,” he said. “Generally they (the school corporation) could be charged based on the statute of the charges, which specifically referred to public and private institutions.”

State statute 35-41-2-3 allows a corporation to be charged with a crime if the offense was committed by its agent acting within the scope of his authority, and employees Mary Beth Lebo and Ed Gilliland were acting within the scope of their authority when they didn’t report the alleged crimes.

“I know she researched it well and did what she thought was required by the law,” he said,

Jones said the case against the school corporation was over.

Szilagy said this outcome doesn’t change the case against the corporations employees Lebo and Gilliland, who are also being charged with allegedly failing to report child abuse. They were the varsity volleyball coach and athletic director, respectively.

Koethe didn’t rule on the arguments of the defense, which included the prosecution missing the statute of limitations and the corporation not being an individual who could be charged with a crime.

“The La Porte Community School Corporation is pleased that the single criminal charge against it has been dismissed,” said defense attorney Martin Kus. “Judge Koethe’s reasoned opinion relied upon well established case law from the Indiana Supreme Court and Indiana Court of Appeals. Those cases clearly support the School Corporation’s position that there was no basis for filing the criminal charges against it.”

Posted by Marcia Oddi on November 30, 2011 08:34 AM
Posted to Ind. Trial Ct. Decisions