Penn State and Sandusky's Victims: Why Sex Abuse Cases Settle

Was the settlement "fair"?
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Gene J. Puskar/AP

Penn State University announced Monday afternoon that it has settled, or is about to settle, the claims of 26 young men who claim or have proven that they were abused or assaulted by Jerry Sandusky, the former assistant football coach there. Settlement discussions have been underway since last year, shaped and crafted by master claims administrator Ken Feinberg, and while this does not mean the end of all Sandusky-related litigation it is definitive word that we are closer to the end than to the beginning of the public chapter of this awful story.

The figure alone—26 young men, evidently still not all of the victims—gives us a sense of the scale of the damage.  The school says that it has rejected six claims from other "individuals who were or allege that they were victims of Sandusky" and that is involved in discussions with still more claimants who have not yet agreed not to pursue civil litigation. "The Board of Trustees has had one of its primary objectives to reach settlements in a way that is fair and respects the privacy of the individuals involved," PSU Board of Trustee Chairman Keith Masser said Monday.

The amount involved, nearly $60 million, means that the 26 victims (let's not call them claimants here) will receive approximately $2.3 million each (less attorneys' fees, I suppose) in "economic" compensation as well as certain (as yet unidentified) "uneconomic" considerations from the university. In exchange, they will not pursue litigation against Penn State. Most of this money, the university says, will be paid by insurance proceeds and not from the school's mountain of assets. Sandusky, meanwhile, is serving 30-60 years in prison, where he says he's been warmed by God's light.

Word of these settlements, which have been coming out into public view in dribs and drabs for months, is likely to spark a new round of conversation and debate centered around the following question: Are the settlements, to use the trustee's word, "fair"? There is an easy answer to that question: Fair to whom? If you aren't a victim of Sandusky how can you possibly evaluate the value of not going through years of emotional litigation? Fairness in civil litigation is typically in the eye of the beholder. That's especially true where, as here, the bargaining power is a little more equal than it usually is in cases between corporations and individuals.

By accepting the university's terms, the young men here get some money now instead of the potential of more money later while avoiding (another) very public airing of their claims against Sandusky. They will not have to go in court and retell their tales. They will not have to subject themselves to cross-examination by university attorneys. They won't have to wait five years to pick up a check. "I don't want to look at him," one victim said from the witness stand last year during Sandusky's criminal trial. That's the sort of emotion that generates the will among plaintiffs to reach a compromise that avoids future courtroom encounters—especially with the perpetrator himself sitting in prison.

By agreeing to pay these victims, meanwhile, Penn State achieves the sort of certainty and finality that all big corporations treasure. The civil litigation would have continued to be terribly expensive for the school even if the university ultimately prevailed on its claims that it could not as a matter of law be held  liable for Sandusky's criminal acts. There is now far less chance that Penn State will ever have to confront a runaway jury intent on punishing the school for its lack of oversight over its coaches. The corporation has limited its damage. It has reduced the number of live claims against it. That's what corporations do.

Each side had strong incentives not to go to trial. Neither side relished the public display continuing litigation would have generated. No one wanted to spend even more time and money on lawyers. And so the deal is done. The $60 million figure seems low to me—especially when you consider the university has spent about $50 million on lawyers and public relations and consulting since the scandal broke. I think the plaintiffs left some money on the table. But litigants almost always do when they settle cases. And there is still the chance that we will one day see Penn State officials in court, at a civil trial, defending themselves for allowing a predator in their midst for so long.

Settlement in civil cases, high-profile ones like this and even routine ones, come about as the result of a series of complex and interacting factors. I can see the "Penn State Wins" narrative forming in the coming hours and days but not from me. If each individual case were worth $5 million, or $10 million, I believe the settlement would have reflected that. Put another way, if this settlement were so favorable to Penn State, I don't believe the attorneys for the young men would have cut the deal. For those men, in any event, here's hoping this settlement allows them to use this money to try to build happy and productive lives for themselves from the ashes of this tragedy. Here's hoping they never have to spend another day in court, or in a roomful of lawyers, talking about Jerry Sandusky.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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