Elmo Star Back in Court on Sex-Abuse Appeal

PHILADELPHIA (CN) - Hoping to keep sex-abuse claims against puppeteer Kevin Clash pinned down, an attorney for Elmo's old voice told the 3rd Circuit today that his client's accuser should have come forward sooner.

Sheldon Stephens was 23 in November 2012 when he told media gossip titan TMZ that he wanted to recant a $125,000 settlement that required him to describe his association with Clash as an "adult consensual relationship."

That report led Clash to immediately take a leave of absence from "Seseme Street," and the voice actor resigned on Nov. 20 as he was hit by a wave of lawsuits alleging that he abused teenage boys.

In the suit Stephens brought in Harrisburg, Pa., he claimed that he was 16 and Clash was 44 when they met and began having sex at Clash's apartment in New York.

Stephens had filed about six months too late, however, for a federal sex-abuse claim under the six-year statute of limitations, the court found. He lost his state-law battery claims as well under New York's one-year statute of limitations.

That ruling rejected a bid to apply Pennsylvania's two-year statute of limitations, and the commonwealth's infancy statute, a law that keeps the window to sue open for 12 years after the minor reaches the age of 18.

With Stephens lobbying the 3rd Circuit to revive his suit, Clash's attorney Michael Berger told a three-judge appellate panel Wednesday that Stephens was a "compliant" participant in the relationship, and that his age at the time placed him in a lesser tier of consent requirement.

"He would in effect be the least vulnerable minor with regard to sexual conduct," Berger said.

Judge Dolores Sloviter said offhandedly, "We let them drive."

In his argument to revive the case, attorney Stewart Mermelstein said that the "psychological, intellectual and moral compulsion" Clash used on his client was akin to an act of force.

Judge D. Brooks Smith nevertheless pointed out that Stephens seemed "happy to accept the intentions and perhaps gain the advantages with Mr. Clash" through the sexual relationship.

Mermelstein countered, "Well, he was groomed, he was mentored, by Mr. Clash,"

"When you look at intellectual and psychological compulsion," Mermelstein continued, "Mr. Clash developed this relationship with Mr. Stephens, and basically given Mr. Stephens lack of maturity - "

But the judge interrupted.

"Does that drain it of all meaning? If you say there was a relationship and psychological force, then any encounter is going to be forcible, where there's some relationship."

Stephens maintains that it took him years to understand the psychological damage caused by his relationship with Clash, and that the statute did not begin tolling until the moment of realization.

The doctrine known as the discovery rule, which starts the clock when an injury is understood, is often applied in medical malpractice cases. But the statutes for sexual assault in Pennsylvania and New York, the jurisdictions involved in the case, do not explicitly mention such a rule, which Berger said was an indication of the legislatures' intentions not to apply it in such instances.

Cecil Singleton, D.O., S.M. and Kevin Kiadii were among a group who sued Clash in New York, but a federal judge preserved only D.O.'s claims in 2013.

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