The “Legacy of JoePa” May Go Further Than Football

Posted by By at 27 January, at 07 : 45 AM Print

On January 22, Penn State University’s legendary football coach, Joe Paterno passed away of complications from lung cancer. Paterno, who remains an icon to many a Penn State fan, boasted an unrivaled 46-year career, where he not only won more football games than any other major college coach. But what I want to talk about today, is the scandal that rocked his athletic career in the end, and may have cut his life short.

Yes, I’m referring to that scandal. At this point, hundreds of different outlets have covered the alleged (and gruesome) details  of child sex abuse perpetrated by Paterno’s longtime defensive coordinator, Gerald “Jerry” Sandusky.

Many have also waxed on about Paterno (and other school officials’) moral responsibilities in this matter. But I’ll spare you a rehash of that debate, and instead explore one of the less-discussed aspects of the case–specifically, the legal ramifications of the actions (or lack of action) by Paterno, Penn State University President Graham Spanier, Athletic Director Tim Curley and Vice President Gary Schultz.

State of the Law

Approximately 48 States, the District of Columbia, and the U.S. Territories have laws that impose a “mandatory reporting” requirement in the case of child abuse on certain individuals.[1] For example, Pennsylvania,[2] mandatory reporters include, but are not limited to, individuals employed as:

  • Social workers
  • Physicians and other health-care workers
  • Mental health professionals
  • Child care providers
  • Medical examiners or coroners
  • Law enforcement officers
  • Teachers and other school personnel

In the case of staff members of a hospital or educational institution, such reports must be made to the “person in charge” of that institution, which in turn must file an oral or written report to the Department of Public Welfare (DPW) within 48 hours.

In at least one case, that of “Victim No. 2,” wide-receiver coach Mike McQueary, then a graduate student at Penn State, described, in graphic detail to Paterno, that he saw a naked Sandusky sexually abusing the victim in the showers at Penn State.[3] According to the Sandusky grand jury transcripts, Paterno complied with the state’s mandatory reporting requirements by reporting the incident to Schultz and Curley. However, according to his testimony, he did so using remarkably minimizing language, couching Sandusky’s behavior as mere “fondling” that was “of a sexual nature.”[4]  However, while it’s clear he complied with the letter of the law, he arguably didn’t comply with the spirit of the law–that is, by giving enough of a representation of the act to encourage an investigation. Complicating matters still, was the fact that Curley and Schultz further minimized the crime by reporting to Spanier that Sandusky was merely “horsing around” with a young boy in the shower area at Penn State, and that the allegations were “not that serious” and had no indication that a “crime had occurred.”[5]

While Pennsylvania case law is sparse on the issue of mandatory reporting, there may be some support for imposing an affirmative duty on Paterno, Curley, Schultz, and Spanier to warn alleged victims of Sandusky’s abuse. Under the common law, many states have recognized a “duty to warn” others in cases of abuse, particularly where victims may be known. While I won’t bore everyone with a bunch of sleep-inducing judicial decisions, I will briefly summarize one of the seminal cases on this issue, which has been accepted by many states: Tarasoff v. Regents of Univ. Of California.[6]

In Tarasoff, the plaintiff was killed by a patient of the defendant therapist, two months after the patient announced his intent in a therapy session. The therapist did not notify the plaintiff. The California court ruled that the defendant was negligent, and violated the common law duty to warn in that instance, and that the plaintiff’s family could therefore bring a civil suit against the therapist. The court added that while a general rule of liability is not imposed to the public at large, there is an exception when the parties in question are in a “special relationship,” such as teacher-student, therapist-patient, or even employer-employee.[7] This special relationship may be between the defendant and the victim, or the defendant an the perpetrator.

Arguably, Paterno, having a “special relationship” as a previous employer to Sandusky, might have fallen under this framework, which in turn, would have obligated him to disclose Sandusky’s activities to the victims, or at a minimum, to board members of The Second Mile (the charity Sandusky founded, and where he was alleged to recruit his victims). It’s unclear based on a dearth of case information in Pennsylvania however, whether such a relationship would be too distant to qualify.

Additionally, Paterno could have faced potential liability for obstruction and perjury if it could have been shown that he obstructed the investigation of Sandusky by deliberately reporting a watered down version of the facts.[8] As it stands, the grand jury investigation did lead to misdemeanor criminal charges against Curley and Schultz for obstruction and perjury, based on their failure to report the incident to proper authorities.[9]

In mitigation, many have asserted that Paterno would not be liable under Pennsylvania statutory or common law, because he lacked any direct relationship with the children involved, and his relationship with Sandusky by the time of the 2002 act was no longer in a strict employer/employee capacity. Additionally, due to the length of time (at least in the case of Victim 2), Paterno would likely have been shielded from liability for obstruction, on the grounds that Pennsylvania has a 5-year statute of limitations period for most crimes. Such statutes are designed to prevent authorities from charging individuals with crimes after a period of years. And while a statute of limitations defense wouldn’t likely shield Paterno in avoiding a perjury charge–his death probably will.

Although the ultimate question about whether the members of Penn State involved in the cover-up will face legal liability may never be reached, at a minimum, this horrible event will encourage the Commonwealth and other state legislatures to re-evaluate the scope of mandatory reporting laws generally, and how crimes against children are handled in the future.

Photo by allenmock

 

Footnotes    (↵ returns to text)
  1. Child Welfare Information Gateway, “Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws,” 2010 at: http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.cfm
  2. Pennsylvania’s mandatory reporting law (located at 23 Pa.C.S. § 6311), provides that when an individual who, “in the course of employment, occupation or practice” comes into contact with children, any suspected acts of child abuse that occur to a child under the “care, supervision, guidance or training of that person or …organization or other entity with which that person is affiliated” must be reported to the Department of Public Welfare.
  3. For a full summary of McQueary’s testimony, See: Sandusky Grand Jury Presentment, p. 6-7 at: http://cbschicago.files.wordpress.com/2011/11/sandusky-grand-jury-presentment.pdf
  4. See: Sandusky Grand Jury Presentment, p. 8 at: http://cbschicago.files.wordpress.com/2011/11/sandusky-grand-jury-presentment.pdf
  5. See: Sandusky Grand Jury Presentment, p. 9-10 at: http://cbschicago.files.wordpress.com/2011/11/sandusky-grand-jury-presentment.pdf
  6. Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976)
  7. Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d at 24
  8. Pennsylvania Criminal Code § 5101 states that a person commits a misdemeanor if they “intentionally obstruct[], impair[] or pervert[] the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act.”
  9. See: Sandusky Grand Jury Presentment, p. 8 at: http://cbschicago.files.wordpress.com/2011/11/sandusky-grand-jury-presentment.pdf

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This post was written by:
- who has written 6 posts for Rock The Capital
Carey N. Lening, Esq. is a solo practitioner, writer, and lecturer who is devoted to legal issues relating to technology, security & privacy, social media, and intellectual property. She writes on areas ranging from business data privacy and security to the legislative changes affecting privacy, copyright, and trademark law. Ms. Lening received her Juris Doctorate from Pierce Law Center of Concord, NH. Prior to opening her practice, Ms. Lening was a journalist for BNA’s Patent, Trademark & Copyright Journal. - Email Carey Lening

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