THE 11th DAUPHIN COUNTY

INVESTIGATING GRAND JURY

IN RE: IN THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY , PENNSYLVANIA

NO. CP-22-MD-475-2018
THE 11th
DAUPHIN COUNTY
INVESTIGATING GRAND JURY NOTICE NUMBER: 11-2018-09

TO THE HONORABLE WILLIAM T. TULLY, SUPERVISING JUDGE:

REPORT NO. 1

We, the 11th Dauphin County Investigating Grand Jury, duly charged to inquire

into offenses against the criminal laws of the Commonwealth, have obtained knowledge

of such matters from witnesses sworn by the Court and testifying before us. We make

the following findings of fact upon proof by a preponderance of the evidence and issue

these recommendations for legislative , executive or administrative action in the public

interest. So finding with no fewer than twelve concurring, we do hereby make this

Report to the Court .

Forederson - 11th Dauphin County

Investigating Grand Jury
DATED: 2019
 INTRODUCTION

We, the members of the 11th Dauphin County Investigating Grand Jury, having

received evidence pertaining to matters occurring in Dauphin County, Pennsylvania,

pursuant to Notice of Submission of Investigation 11-2018-09, do hereby make the

following findings of fact and recommendations.

FINDINGS OF FACT

Over the last several months, the 11th Dauphin County Investigating Grand Jury

received testimony regarding a sexual assault allegation from 2015. The complainant

(hereinafter referred to as “victim”) has served as a staff member with the Pennsylvania

General Assembly since 2013. The alleged perpetrator was a member of the House of

Representatives of the Pennsylvania General Assembly (hereinafter referred to as

“Member”) at the time of the alleged assault.

The victim testified that prior to the night of the assault, she did not have any

sexual relationship with the Member. She indicated that she knew him as a Member of

the House and she characterized her relationship with him as a friend of a friend. She

indicated that they were in the same social circle for after-work social functions. At

these functions, the victim observed that the Member immediately “honed” in on her.

He made sexually suggestive comments to her. She testified that initially she tried to

just be polite to his “aggressive” comments. She did so because “we always say that

they’re our clients, members of the General Assembly.” Nevertheless, she indicated she

clearly conveyed to him that she was not interested in his advances.

With this background, in autumn 2015, a traumatic event occurred. After work,

the victim arranged to meet a female lobbyist, one of her best friends, who was also

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friends with the Member. The two women had a drink together at Carley’s Bar before

her friend left to go to a fundraiser at McGrath’s Bar. Carley’s and McGrath’s are both

bars in the City of Harrisburg. The two women planned to reconnect at McGrath’s once

the fundraiser was over.1 The victim explained that she had one additional drink at

Carley’s and the next thing she remembered was waking up in the bed of the Member.

The victim testified that she had no recollection of the remainder of the night or

how she came to be in the bed of the Member. She explained that she felt as though

her body had been hit by a car. She could not move easily and was having a hard time

being able to speak or process what was going on. She asked the Member what had

happened. He told her that they had been “fucked up” from drinking and that they “had

sex”. She said that she felt that she needed to leave, but she felt paralyzed and passed

out again. She awoke to the Member touching her in a sexual manner and she told him

to stop. He told her that if she was not going to “fuck him” again, that she would need to

leave.

The victim testified that she did not have a recollection of getting dressed, but

remembered that her clothing and personal items were strewn throughout the house

from the entrance to the third floor where she awoke in the Member’s bed. She said

that when she found her mobile telephone, it appeared to be dead.2 She explained that

1 As a matter of routine, members of the General Assembly host “fundraisers”. Such fundraisers are
attended by lobbyists who bring checks to garner an opportunity to have face-time with Members to lobby
for their respective positions on any political topic pending before the General Assembly. The
“fundraisers” are often at bars and carry-over into the night after the official ending of the fundraiser. All
witnesses explained that once the fundraisers are officially over, it is not uncommon for many staffers to
join up with those who had been in attendance at the fundraisers.

2 She explained that while she thought the telephone was “dead”, she later realized that it was just
powered off. She said that when she turned it back on she had multiple text messages and missed call
notifications. She indicated that her cellular telephone was password protected and that she was not
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she kissed the Member before she left because she felt he would not let her leave

unless she acquiesced to his advance.

The victim explained that she went to the hospital two days later. The grand jury

had the benefit of review of the resulting medical records. She stated that she waited

two days to go to the hospital because she felt sick and was not able to get herself out

of bed. When she went to the hospital, she told the examining physician that she had

three drinks with an acquaintance at a bar and then had no memory of the night until

she woke up in the acquaintance’s bed. The acquaintance told her that they had sexual

intercourse. She indicated that she did not consent to the sexual intercourse and that

she believed she had been drugged. She told the personnel that she had no interest in

pursuing it legally; she declined a SANE3 examination to collect potential evidence. She

indicated that she did not want the matter referred to law enforcement authorities. She

indicated that she wanted to be treated for potential sexually transmitted diseases and

to be physically examined. The physical examination revealed no redness, ecchymosis,

or injury to the vaginal area. The victim complained of moderate pain to the pelvic

region, as well as tenderness to the abdominal area. Hospital staff noted the presence

of contusions on her back. The victim testified that she sustained a concussion, but the

medical records did not reflect any indications of a concussion or treatment for a

concussive condition. She was treated for a urinary tract infection.

The detective testified that during an interview with the victim she told police that

she had vaginal tears as a result of the assault and that the medical records should

aware of anyone else having her password.

3 SANE is an acronym for Sexual Assault Nurse Examiner
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reflect those injuries. The detective explained that she asked the victim to consent to

getting her gynecological records to determine if those records reflected the vaginal

injuries. The victim consented to the release of these records. The records did not

reflect any vaginal tearing or other injuries as a result of the October assault.4

The victim did not report the assault to the police or any other authorities for

approximately three years. She explained that she had a great deal of other matters

going on in her personal life and needed to focus on those matters. She stated that in

2017, during media coverage on the “#metoo” movement, she felt a need to bring the

assault to light. She testified that she felt what the Member had done was wrong and

that she felt that others could be violated because she did not speak up about her

assault. In December of 2018, the victim reported the assault to the Criminal

Investigation Division of the Dauphin County District Attorney’s Office.

During the course of the investigation, county detectives spoke with numerous

witnesses. One witness was a close friend of the victim who was out with her the night

of the assault (herein referred to as “friend”). During grand jury testimony, the friend

explained that she left the victim at Carley’s to attend a fundraiser at McGrath’s. Later

in the night, the victim joined the friend at McGrath’s. The friend testified that while the

victim may have been a bit more boisterous than usual when they met up at McGrath’s,

she did not perceive the victim as severely impaired. The friend testified that she had

seen the victim consume alcohol on multiple occasions and she did not observe

4 The medical records reflect another visit to the hospital by the victim in 2016. She erroneously
attributed statements made during that visit to the hospital visit in autumn 2015. The Grand Jury
attributes this conflict in the evidence to the passage of time and resulting confusion, not an intentional
falsehood. The existence of a neutral investigative body within the General Assembly to investigate
misconduct would have encouraged an earlier report of the fall 2015 incident.
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anything out of the ordinary on that particular night. The friend explained that later in

the evening the Member joined up with their group and that they all associated

throughout the evening.

The friend testified that, at about 10:00 p.m., she left McGrath’s to meet up with

her boyfriend. She was concerned about the victim driving home and the Member

assured her that they would get her an Uber so she did not drive. She stated that while

she did not believe the victim should be driving she did not perceive that she was

unable to handle herself due to intoxication.

The friend testified that the next time she heard from the victim was early the

next morning. The victim called her and told her that she woke up naked in bed with the

Member and that she believed they did something “sexual”. She stated she did not

consent to any sexual contact. The friend indicated that she wanted to know where the

victim was so she could pick her up. She also implored the victim to go to the hospital.

The victim declined both. The friend stated that she was angry and texted the Member

to confront him. She indicated she did not recall his response. The victim stated during

police interviews that the friend had stated that the Member admitted to having sexual

intercourse with the victim.

An associate of the Member stated that in January or February of 2018, the

Member reached out to him. The Member stated that rumors were abound that he had

assaulted a woman. The Member stated that he had been with the victim and that they

had both fallen during the course of the night. The associate stated that he cut him off

in the conversation and advised him to seek out legal counsel. Another male friend of

the Member testified that after the night in question, the Member stated that he and the

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victim had “hooked up”. The Member also stated that the victim had gone to the

hospital because she had hit her head in the bar. The male friend testified that there

had been rumors circulating about the incident and that multiple people approached him

and discussed the rumors with him prior to the formal report being made.

The Grand Jury sought the testimony of the Member in the interest of getting a

complete account of what had occurred. Through counsel, the Member invoked his

privilege against self-incrimination and declined to testify before the Grand Jury.

During the entire grand jury proceeding, a recurring concern was the complexity

of making reports of alleged sexual assault or sexual harassment in the General

Assembly. In addition, witnesses expressed hesitancy to provide information because

of the concern that there would be a backlash. The grand jury received testimony from

Attorney Shea M. Rhodes, Director of the Institute to Address Commercial Sexual

Exploitation at the Villanova University Charles Widger School of Law. Ms. Rhodes

testified that after an extensive research project by the law school, it was clear that the

policies in the General Assembly concerning sexual harassment were confusing, lacked

transparency, and were inadequate to properly address a pervasive problem within that

body.

Ms. Rhodes referenced a Joint State Government Commission study finding that

in the last five years, there were over 600 claims of sexual harassment within state

government with $1.9 million in taxpayer funds paid out in settlements as a result of

such complaints. She cited a report in The Caucus (December 12, 2017, pp. 6-9), “The

Culture of Silence” by Paula Knudson and Brad Bumsted, which reflected that the

culture of the political environment in Harrisburg promotes sexual misconduct. “[T]he

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lack of workplace diversity, significant number or young adult employees, ‘gender power

disparities’, alcohol consumption ‘during and around’ work hours, crude jokes and

banter [are ingredients for sexual harassment].” Based upon her research, Ms. Rhodes

identified the following five problems in the current system.

(1) Lack of transparency and clarity in the existing policies and procedures

Ms. Rhodes explained to the grand jury that it is nearly impossible to navigate

through the system to report instances of sexual harassment and misconduct. Each

caucus5 has their own separate and distinct policies and procedures. There is no

centralized reporting system for a victim to report sexual harassment. Indeed, there is

no universal definition of what constitutes sexual harassment. Ms. Rhodes

recommended that a board be established to receive all complaints of sexual

harassment and sexual misconduct. By centralizing the reporting process, potential

victims would not be discouraged to file a complaint because of an onerous system.

She also explained that the process should be made transparent so everyone

understands it. For example, the reporting policy should be published on the General

Assembly’s internet site, https://www.legis.state.pa.us/, so that the policy is accessible

and understandable.

(2) Lack of Accountability

Ms. Rhodes identified a systemic lack of accountability. Under the current

system, individuals accused of sexual misconduct can avoid any accountability by

simply resigning from office. Such members are often able to retire with generous

5 This is a reference to the four caucuses within the General Assembly—the Senate Republican and
Democratic Caucuses and the House Republican and Democratic Caucuses.
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pensions and without repercussions for misconduct.

(3) Failure to Address Non-Workplace Sexual Misconduct

As Ms. Rhodes explained, the current policies and procedures to address sexual

misconduct and harassment, inadequate as they are, wholly ignore misconduct outside

the four-walls of the capitol. It was abundantly clear during testimony before the grand

jury that the “business” continues well beyond the chambers of the Capitol. If sexual

misconduct occurs within the confines of the Capitol complex it is considered to be

“workplace” harassment—however, what if the misconduct occurs during a fundraising

event? Ms. Rhodes suggested that elected officials should be held to a higher standard

because they are entrusted with the public confidence.

(4) Inadequate Timeframes for Reporting

Ms. Rhodes identified problems with the current deadlines for reporting sexual

misconduct and sexual harassment. Under current procedure, in the House of

Representatives, there is a five-year window to report sexual misconduct. In the

Senate, there is no specific rule delineating a deadline to report sexual harassment or

sexual misconduct. However, if that body chose to apply the current timeframe to report

campaign ethics violations, there would be only a one-year period to make such reports.

Ms. Rhodes explained that victims are often reluctant to report abuse/misconduct

because of embarrassment; concern of retaliation; and challenges associated with

trauma. Given the dynamics of this type of victimization, the internal deadlines within

the General Assembly for reporting abuse should be expanded considerably.

(5) Inadequate Confidentiality Protections

According to Ms. Rhodes, one of the most egregious failures in the current

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system in the General Assembly is the lack of confidentiality if a victim chooses to come

forward and report impropriety. Across the board, victims become subjected to the

Capitol rumor mill. The resulting whisper-campaign is perhaps just as emotionally

damaging to the victim as the original misconduct. Victims of sexual harassment or

sexual misconduct should feel confident that their report will be taken seriously and not

subject to water-cooler banter. In addition, by implementing a system where

confidentiality is enforced, other witnesses will feel more confident in providing

information that is truthful, without fear of repercussions.

Furthermore, the current system allows the House to refer a matter to law

enforcement without the victim being involved in that referral. If a sexual assault victim

presents to a hospital, they have the ability to decline law enforcement involvement.

The same should apply for a victim who reports abuse to the General Assembly.

Certainly, they can be advised of the right to refer to law enforcement—but they should

not be stripped of that decision-making process. The grand jury also felt it was

imperative for individuals to face consequences for breaching confidentiality of reports—

fines that are assessed personally against violators—not another cost to be absorbed

by the taxpayers.

Institutional pressures within the General Assembly decrease the likelihood that a

victim of sexual assault, sexual harassment or other misconduct by public employees

will report that misconduct6. The victim did not report the sexual assault by the Member

6 The Grand Jury places no blame or criticism on any of the four legislative caucuses for its procedures
regarding reports of assault or misconduct by its members. The Grand Jury recognized that in large part
as a result of the #MeToo movement, many victims of violence, especially sexual violence, have
thankfully felt more comfortable coming forward to report their serious allegations. The Grand Jury also
recognized that at the same time many victims of sexual violence do not always react in the same
way. Some do not immediately report and sometimes feel ashamed, fearful or filled with self-doubt. The
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in fall 2015 for three years. The passage of time, diminishing memories, the resulting

inability to corroborate the victim, and all the surrounding circumstances of this case

make a criminal prosecution of the Member impracticable. Improvements in the system

can make it more likely to achieve justice for victims and suspects in the future.

RECOMMENDATIONS

Based on the above findings of fact, the 11th Dauphin County Investigating Grand

Jury makes the following recommendations for legislative, executive, or administrative

action in the public interest:

1. The Grand Jury recommends that the Pennsylvania General Assembly

establish a centralized Office of Legislative Responsibility7 with the authority to

investigate any claim of misconduct by a member of the General Assembly or staff

member of that body where the alleged misconduct in any way was connected with or

related to his or her official duties.

2. The Grand Jury recommends that the General Assembly eliminate any

time limitation on institutional sanctions against a member of the General Assembly or

action against a public employee for official misconduct. The criminal statute of

limitations is tolled against public officials and public employees for crimes committed in

connection with their offices and extends five years beyond that. 42 Pa. C.S. §5552(c).

Grand Jury believed that as our society evolves in terms of understanding victimization, particularly the
science regarding delayed reporting, our institutions should similarly take the opportunity and improve
their own practices and procedures regarding such investigations and recognize the different but
completely appropriate ways in which victims of sexual violence react. These recommendations are made
with these goals in mind.

7 Pending legislation, HB 1000, would create the Office of Compliance. The Grand Jury recommends an
office with broader authority than that proposal.

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Certainly, less punitive sanctions should not carry a more restrictive reporting deadline.

3. The Grand Jury recommends that the Office of Legislative Responsibility

be an independent office with authority to act without interference by members or staff

of the General Assembly. The Office of Legislative Responsibility should be headed by

a qualified individual with investigative or prosecutorial experience with a fixed term of at

least six years, who cannot be removed, except for cause by a vote of a majority of both

chambers. This individual could be appointed by the heads of the four legislative

caucuses. The Office should have a highly qualified staff and be allowed to conduct

confidential inquiries free from interference by leadership, members, or staff of the

General Assembly or the executive branch. The General Assembly is a political

institution by its nature. Referral of a matter relating to a public official or public

employee to law enforcement authorities for investigation and possible prosecution can

have political consequences. Such a decision should be made by a neutral and

detached authority insulated from political influence and consequences.

4. The Office of Legislative Responsibility should have authority to obtain

documents and other evidence by means of subpoena. Based upon the experience of

the Grand Jury, the lack of such power would make such an office ineffectual. Such

subpoenas must be enforceable with the authority of a court of record. The Office of

Legislative Responsibility should be permitted to seek to enforce any subpoena it

issues. The Office of Legislative Responsibility should be required to work with the

district attorney in the county where the alleged misconduct occurred before procuring

or enforcing a subpoena to ensure that the actions of the Office of Legislative

Responsibility to not interfere with any other ongoing criminal investigation.

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 5. Interference with an investigation of the Office of Legislative Responsibility

or tampering with or attempting to tamper with a witness who has provided evidence,

may provide evidence or will provide evidence to the Office of Legislative Responsibility

should constitute a criminal offense. The grading of such an offense should be at least

a misdemeanor and of a felony grade if the tampering or attempted tampering occurs by

means of force, threat, coercion, or inducement.

6. All members of the General Assembly and staff who become aware of

serious misconduct, such as sexual assault or sexual harassment against another, by a

member of the General Assembly or staff member should be mandated to report that

misconduct to the Office of Legislative Responsibility. Such obligation should exist

whenever the misconduct is related to or in connection with official duties, even if it

occurs outside work hours or outside the workplace, if it relates to official duties such as

gatherings following lobbying events. No person or entity obligated to make a referral

under such a policy, including any of the four legislative caucuses, should conduct its

own preliminary inquiry prior to making the referral to the Office of Legislative

Responsibility. Such a preliminary inquiry would tend to impede any subsequent

criminal investigation or an investigation by the Office of Legislative Responsibility.

7. The Office of Legislative Responsibility should conduct a preliminary

examination of the referral. Prior to conducting a detailed interview of any witness, if the

Office of Legislative Responsibility determines that the allegation could carry criminal

liability, that office should immediately refer the case to the appropriate law enforcement

agency. In such event, the Office of Legislative Responsibility should not alert any

member or staff of the General Assembly of the referral as that could impede the

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criminal investigation. In a case involving an allegation of sexual assault, the victim

should be consulted before any referral to law enforcement authorities.

8. Every victim of sexual assault or sexual harassment should feel free to

report misconduct by a member of the General Assembly or a staff member. However,

if a victim of sexual assault or sexual harassment does not wish to come forward, he or

she should not feel obligated to do so.

9. If the Office of Legislative Responsibility determines that further

investigation is required, but not a criminal referral, that office should then conduct a

thorough investigation of the allegation. If warranted, following full investigation, the

Office of Legislative Responsibility should make prompt referrals to the appropriate

oversight committee (e.g., the House Committee on Ethics), or other entity with proper

authority to reliably adjudicate the claim.

10. The basis for the present recommendation involves accusations of sexual

assault that were not brought in a timely manner for fear that they would not be pursued

vigorously. The same concerns apply to any accusation against a member of the

General Assembly or a high ranking staff member, irrespective of the nature of the

claim. Accordingly, the Grand Jury recommends that the Office of Legislative

Responsibility have authority to investigate any claims of criminal behavior, sexual

assault or sexual harassment, financial crimes, or claims that a public official or

employee of the General Assembly acted improperly against any person in the course

of their duties on the basis of race, ethnicity, national origin, gender, sexual orientation

or identity or other impermissible basis.

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