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Civil courts across the nation are grappling with the dilemma of whether civil juries should be allowed to consider a minor rape victim’s conduct. In the past several years, about a dozen courts have held that the consent defense � the assertion that the victim knew what he or she was doing � should not be allowed in civil lawsuits. But a half-dozen other courts have ruled otherwise, permitting the consent defense to be used in civil cases. Criminal courts bar the use of the consent defense. The question is currently being raised as a matter of first impression in the Pennsylvania Supreme Court last week. A similar case was heard by the Minnesota Supreme Court on Oct. 3. The Pennsylvania high court heard a case on Oct. 15 involving the alleged rape of an 11-year-old girl after a Philadelphia Phillies game by three teenage vendors. The girl is suing the Phillies baseball team for allegedly failing to protect her at a game she attended. The girl alleged that she sought help from security officials when she became lost and that they told her the game was over and sent her to the parking lot, where she was raped. C.C.H. v. Philadelphia Phillies, No. 4EAP2007 (Pa.). Two of the minor defendants were convicted in juvenile court. At the civil trial, however, a lower court judge permitted the defendants to argue that the girl consented, leading to a jury verdict for the defendants and an unsuccessful appeal. A ‘ludicrous’ holding “If our Supreme Court does not reverse this decision, Pennsylvania law will permit this type of defense, and it could be a 9-year-old the next time,” said Alan Schwartz, the girl’s lawyer, arguing it’s “ludicrous” to hold a child sex victim at fault. Schwartz of Philadelphia’s Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley said that Pennsylvania law is clear about minor-on-minor sex crimes � a child younger than 18 cannot consent. That should hold true whether in the civil or criminal arena, he said. “A child doesn’t become mature and sophisticated just because she’s pursuing civil damages,” Schwartz said. Schwartz is seeking damages from the Philadelphia Phillies, alleging that they violated a lost-person policy requiring personnel to take lost children to a special accommodation room. Robert Reger, an attorney at Philadelphia’s Reger Rizzo Kavulich & Darnall who is representing the Philadelphia Phillies, was unavailable for comment. While the Pennsylvania case hinges on a lower court ruling that permitted the consent defense to be used in a civil case, a Minnesota Supreme Court case presents just the opposite. That case involves a girl who was a guest at a horse farm and sued the farm owner for allegedly failing to prevent her from being sexually assaulted by the owner’s boyfriend. The farm owner had argued the girl knew what she was doing and hid the relationship for years from her and her parents. However, an appeals court ruled last year that the consent defense should not be allowed in civil matters. The defendant was eventually convicted on three counts of criminal sexual misconduct. “We are persuaded that, as a matter of public policy, a person under the age of consent lacks the judgment and maturity necessary to fully appreciate the danger inherent in engaging in sexual relations with an older person,” the court wrote in its opinion. Bjerke v. Johnson, 727 N.W.2d 183 (Minn. Ct. App.). Jurisdictions that have ruled against use of consent defenses in civil suits involving child sex crimes include Oregon, South Carolina, Utah and Washington. States that have allowed the consent defense include Georgia and Tennessee. Courts in California, Louisiana and Maryland have ruled both ways. Jack Riedy, who on Oct. 3 argued in favor of using the consent defense before the Minnesota Supreme Court, believes that juries hearing negligence suits should be allowed to consider an accuser’s behavior and conduct, even if he or she is a minor. “If you prevent the negligence defendant from using the consent defense, you create a situation where the minor knows that she can engage in sex with an adult, then sue someone else for being negligent and there’s no defense,” said Riedy of Maschka, Riedy & Ries in Mankato, Minn. Riedy is representing Suzette Johnson, the horse farm owner accused of failing to protect her teenage farm guest from sexual assault. He said the girl � who claimed Johnson’s boyfriend sexually assaulted her for four years, starting when she was 14 � knew what she was doing and that a court needs to hear that. “There are facts which indicate that the minor here not only consented, but actually sought out and nurtured this relationship and hid it from my client and from her parents,” Riedy said. “We want an opportunity to tell the jury that her conduct is the primary reason that this sexual assault occurred.” The minor’s lawyer, Kevin Wetherille of Jaspers Moriarty & Walburg in Shakopee, Minn., believes allowing consent defenses in civil suits involving sex crimes discourages young victims from coming forward in the future for fear they’ll be blamed for the act, he said.

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