Three of the four men who have sued puppeteer Kevin Clash are using a legal theory that asserts their cases should proceed despite the statute of limitations having run out because they only recently realized they were harmed by the sexual encounters they allege they had with Clash when they were underage.
“There’s no case that I’m aware of where someone succeeded on that theory,” said Michael G. Berger, Clash’s attorney, who filed a motion to dismiss all three cases in federal court in Manhattan on March 1. “It’s a theory that would write the statute of limitations right out of the statute.”
One man, identified as S.M. in his complaint, said he met Clash, now 52, in Miami when he was 16 or 17 in “late 1995 or early 1996.” The alleged sex occurred in New York City in early 1996 when Clash, who voiced Elmo on “Sesame Street” for nearly 20 years, paid for a plane ticket to New York City for S.M.
“Although Kevin Clash’s sexual activity occurred with [S.M.] in or about 1996 when he was a minor, he was not immediately aware of his injuries,” the complaint read. “As a compliant victim, [S.M.] did not become aware that he had suffered adverse psychological and emotional effects from Kevin Clash’s sexual acts and conduct until 2012.”
The other complaints, one filed by Cecil Singleton and another by a man identified as D.O., assert that the alleged sex occurred when they were 15 or 16 but they only became aware of the harm they suffered in 2012. The motion to dismiss puts the alleged sex with D.O. in 2000 and with Singleton in 2003.
According to the motion to dismiss, the plaintiffs have six years from the act or three years from their 18th birthday to sue. Singleton missed the date by three years. Depending on which cutoff date is used, D.O. missed by six or three years and S.M. missed by 10 or 12 years.
“Under that statute, it’s a six-year, three-year statute of limitations,” Berger told Gay City News. “That’s it, period.”
In the motion, Berger argued that allowing the plaintiffs to proceed with their lawsuits would, in effect, create a license to sue.
“Creating a judicial exception for plaintiffs such as these, who immediately and at all times know both of the alleged injury and the person who allegedly inflicted it, would invite a flood of frivolous litigation,” Berger wrote. “Any plaintiff, anytime, anywhere, who had any relationship to New York, could track the boilerplate language of the complaints here, and start a litigation against anyone for any reason. Plaintiffs’ theory could presumably apply decades after the conduct alleged, as it would not depend on any objective fact that would be susceptible to being proved or disproved.”
The three men are represented by Stuart Mermelstein, a partner at Herman, Mermelstein & Horowitz, P.A. The fourth plaintiff, Sheldon Stephens, is represented by Jeff Herman from the same Miami law firm. Stephens filed his lawsuit in Pennsylvania on March 18.
Stephens went public with his complaint in late 2012, but quickly recanted saying the sex occurred when he was an adult. Published reports at the time said that Clash and Stephens had cut a deal that gave the younger man $125,000. Stephens has since recanted his recantation.
While Clash has yet to respond to Stephens, this plaintiff suffers from the same issue that confronts the other three. Stephens said the alleged sex occurred in 2004 when he was 16 so his claims would also be time barred.
Some press reports suggested that Stephens filed in Pennsylvania to take advantage of that state’s more generous statute of limitations laws, but his complaint says the sex that harmed him took place in New York City. The Stephens’ case may be moved to New York.
Mermelstein did not respond to an email seeking comment.
