HARRISBURG — State prosecutors are arguing that the 10-year statute of limitations for failure to report child abuse charges that Tim Curley and Gary Schultz are facing doesn’t apply in this case.

“To date, (d)efendants still have not notified the proper authorities that they had information that Sandusky was abusing children,” prosecutors wrote in a motion filed in Dauphin County court Wednesday.

Attorneys for the former Penn State administrators argue the statute has passed, because the incident it applies to — when Mike McQueary found Jerry Sandusky naked in a campus shower with a boy — took place in February 2001. Prosecutors had initially argued the incident took place in March 2002, so it would have fallen within the 10-year time frame. Now, they’re arguing failure to report is “a continuing offense.”

In the latest court filing, the prosecution compares the offense to someone failing to register as a sex offender with state police.

“The Superior Court has held that failure to register is a continuing offense for purposes of the statue of limitation,” prosecutors argue.

Curley’s attorney Caroline Roberto said while it’s been known since May that the true date of the shower incident was February 2001, the prosecutors waited until Wednesday to file a pleading using another justification to keep the failure to report offense alive.

“Under these circumstances, I think the commonwealth has to bear the consequences of their choices and their investigation and bear the consequences of choosing the later of two days that McQueary gave them and bear the consequences of not filing this charge when they could have, within 30 days of talking to Mike McQueary.”

Attorneys did not address the issue in the pretrial hearing in front of Dauphin County President Judge Todd Hoover on Thursday. Instead, the defense attorneys will respond to the prosecution’s argument in 10 days.

There’s a two-year statute of limitations on the failure to report charge. That can be suspended for eight years, which would put the deadline for filing the failure to report abuse charges in February 2011.

Wes Oliver, Duquesne University law professor, said the state’s argument that the failure to report is an ongoing offense because “every day they didn’t report they were committing that crime” could be difficult to argue.

“If you follow that line of argument that would mean there would be no statute of limitation whatsoever on that particular crime, and the legislature absolutely said there’s a two-year statute of limitation,” he said. “A 20-year statute of limitation, a five-minute statute of limitation would be meaningless if failing to report was an ongoing offense.”

Anne Danahy can be reached at 231-4648. Follow her on Twitter @AnneDanahy