By P.J. D’Annunzio, from The Legal Intelligencer

A federal appeals court has upheld the dismissal of a lawsuit filed by a man who claimed he was sexually assaulted as a minor by Kevin Clash, the puppeteer and voice of the “Sesame Street” character Elmo.

The U.S. Court of Appeals for the Third Circuit affirmed Wednesday a federal district court’s ruling that plaintiff Sheldon Stephens’ claims were barred by the statute of limitations. According to media reports, three other lawsuits filed against Clash had also been dismissed last year.

Stephens claimed that he and Clash had a sexual relationship beginning in 2004 when Stephens was 16 years old, according to the appeals court’s majority opinion authored by Judge D. Brooks Smith. Stephens alleged Clash, who he met at an actors’ networking event, had arranged to have him driven from Harrisburg to New York on several occasions to engage in sexual activity.

“Although he was ‘a compliant victim showered with attention and affection,'” Smith said, “Stephens contends that he ‘did not become aware that he had suffered adverse psychological and emotional effects from Clash’s sexual acts and conduct until 2011.'”

Stephens further alleged Clash used “intellectual, emotional, and psychological force” by “‘ingratiat[ing] himself to [Stephens] through [Clash’s] wealth and celebrity with knowledge that [Stephens] wanted to enter the modeling industry,'” according to Smith.

However, Stephens was too late in filing his claim, Smith said. The six-year statute of limitations started running in 2004. Stephens filed suit in 2013.

“Here, Stephens’ allegations demonstrate that he was aware that Clash had inflicted an injury at least as of the time Stephens willingly engaged in sexual relations with Clash,” Smith said. “From the outset, ‘Clash led [Stephens] to believe that [Clash] was interested in having a sexual relationship.’ Stephens willingly traveled from Harrisburg to New York City at Clash’s request. Stephens then became a ‘compliant victim’ of Clash’s sexual advances. Stephens’ complaint thus indicates that he was cognizant at all times of the sexual abuse from which he contends he suffered an injury.”

Smith said in a footnote that he described the sexual contact as nonconsensual because Stephens was a minor at the time.

“Indeed, Clash’s nonconsensual sexual contact with Stephens … inflicted an injury, regardless of Stephens’ willing participation or any additional, latent psychological or emotional injuries that Stephens may have suffered at the time of the abuse, or even later in life.”

In addition to appealing the federal court’s dismissal of his case, Stephens also argued the district court should not have dismissed his state-court battery claim as untimely.

New York state law, under which the battery claim was filed, has a statute of limitations of one year for battery, Smith said. Stephens argued that Pennsylvania’s two-year statute of limitations for battery should be applied in the case.

But Smith said regardless of which state’s law prevailed, “Stephens turned 18 in 2006, and thus any sexual relationship continuing beyond that date would not constitute the abuse of a minor. Stephens did not file his complaint until 2013, well after the expiration of New York’s one-year statute of limitations.”

In a separate opinion, Judge Kent A. Jordan wrote he agreed with the outcome of the case and also commented that while victims of child pornography or abuse, for example, might benefit from more time to file claims before the statute runs, it is not the job of the court to change legislation.

“In the end, however, it is not necessary for us to decide what can be discerned of congressional intent on this point,” Jordan said. “The outcome for the claimant here is unaffected by the issue, for reasons persuasively set forth in the majority opinion.”

Stephens’ attorney, Stuart Mermelstein of Boca Raton, Florida-based Herman Law, and Clash’s attorney, New York-based Michael Berger, did not return calls seeking comment.

IMAGE: Elmo puppeteer Kevin Clash poses with the “Sesame Street” Muppet in the Fender Music Lodge during the 2011 Sundance Film Festival in Park City, Utah.

AP Photo/Victoria Will

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