Penn State case to test failure-to-report law
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The prosecution trying the cases of two former high-ranking Penn State University officials implicated by the Jerry Sandusky sex abuse scandal might be facing an uphill battle on one of the charges lodged against the two administrators, legal observers say.
Former Penn State Athletic Director Tim Curley and former Vice President for Finance and Business Gary Schultz have been charged with failure to report an incident of child abuse, as well as perjury, a more serious crime.
But one attorney specializing in child advocacy said the officials might have a "credible, if not very satisfying, defense" on the failure to report charges, because the alleged incident occurred when a more restrictive version of the law was in place.
Mr. Sandusky, a former defensive coordinator for the Penn State football team who coached for more than 30 years, faces a 40-count indictment stemming from allegations he sexually abused eight boys over the course of at least 10 years.
The charges against all three men follow a 23-page grand jury report alleging Mr. Curley and Mr. Schultz heard about an incident in 2002, but did not report it to authorities.
Under the statute at issue -- 23 Pa.C.S. Section 6311 -- a "mandated" reporter must "[come] into contact with children" as part of his or her position. In 2002, when the alleged incident occurred, a prior version of the statute required an abused child to come directly into contact with a person "in their professional or official capacity" in order for them to be a mandated reporter.
But the law widened in 2007 to include those who hear the information secondhand.
"The law then was a bit more restrictive in establishing the obligation to report, so that for the administrator that heard about the report secondhand there wasn't arguably a legalistic standard," said Frank Cervone, executive director of the Support Center for Child Advocates.
"One has to conclude these kids were strangers to the Penn State officials, whether or not they were visiting the building with Sandusky."
The grand jury has alleged Mr. Schultz, who worked above the university's police force, and Mr. Curley were made aware of the 2002 incident, in which Mr. Sandusky allegedly subjected his young victim to anal sex in a Penn State locker room.
It claims the officials took some action, such as barring the then-retired coach from bringing youths on the campus, but did not alert police. It alleged the two men never discussed doing so.
Mr. Cervone said the university's connection with Mr. Sandusky's long-standing charity, The Second Mile, was both important for the children involved and indicative of Penn State's responsibility to protect them.
He said the prosecution would likely want to play up that relationship.
"Penn State was, in a most noble way, supporting that organization and those needy kids," Mr. Cervone said. "That connected them."
According to Bruce Ledewitz, a professor at Duquesne Law School, neither of the men are implicated by the language of the statute.
He noted the statute is not limited to listed categories, but added "that's going to be a strong argument for the application of this particular statute."
Both the prior and current versions of the statute list 24 persons who are required to report such a crime, and "school administrator" is the closest to Mr. Curley or Mr. Schultz's job descriptions.
Both statutes note the list is not limited to the positions enumerated.
Other observers pointed to the case against the administrators as a chance to develop the law.
"The questions here are unique to both a university and an athletic department within the university," said John M. Burkoff, a law professor at the University of Pittsburgh. "And while there may be other situations that are similar and will help a court decide what this means, a university setting and the particulars in this case may make the facts here distinguishable."
Mr. Burkoff said he is "quite certain" the case will lead to some type of appellate decision, but added the prosecution would not have brought the failure-to-report charges if it weren't confident it could obtain a conviction.
"The attorney general wouldn't have sought indictment under this as well as perjury if she didn't think that prosecution would be successful there, too," he said.
A spokesman for the state Attorney General's office said the same.
"We believe very firmly that in a situation like this -- where it is reported to university officials that a young boy was sexually assaulted late at night in the showers at the football locker room on the Penn State campus -- the statute absolutely applies," Nils Frederiksen wrote in an email.
Mr. Frederiksen declined to comment on the implications of the change in the statute.
Thomas W. Sheridan, whose practice at Sheridan & Murray specializes in part in sexual abuse victims, said the egregious nature of the case led the prosecution to file all possible charges.
"The fact that this coach was permitted to continue to have access to those facilities after he was already investigated for sexual misconduct allowed him to become emboldened and to continue this abusive behavior," Mr. Sheridan said of the allegations.
"What's critical here is these school officials failed to do anything when they learned the most horrific kind of child abuse. They took no action to discipline the coach. They took no action to help the child and they took no action to identify the child."
"They buried their heads in the sand," he said.
Former Penn State head football coach Joe Paterno has not been charged by the Attorney General's Office and state Attorney General Linda Kelly released a statement last week that said Mr. Paterno was not the target of an investigation, at this time.
First Published November 14, 2011 12:00 am