You’ve Got Legal Questions About Penn State, I’ve Got Answers

What? Me Worry?

The child rape scandal at Penn State continues to spiral out of control. At this point, the news is coming so fast and furiously, it’s hard to tell what’s really happening in Happy Valley. The legal aspects of the case, however, appear to be pretty straightforward, though seriously stomach-churning. I’ll do my best to answer your legal questions about the “Penn State Scandal” here:

Why didn’t the locker room witness stop Sandusky from assaulting the child or call the police?

When you’ve spent as much time cross-examining witnesses as I have, you learn that there are no easy answers to these kinds of questions. By all accounts, receivers coach Mike McQueary, who was a grad student at the time, walked in on Jerry Sandusky in the process of anally raping a child in the Penn State locker room. Rather than intervening and saving the child, McQueary waited until the following Saturday to tell head coach Joe Paterno what he had seen in a private meeting at Paterno’s house.

I once had  conversation with a cop about why people don’t intervene in violent crimes and why battered women don’t leave their husbands and such (I believe, at the time, we were discussing a case where a guy killed his wife on the South Side by stabbing her in front of a crowd of on-lookers, all of whom did nothing).

After listening to me lambast the on-lookers, the cop said, “But you’re asking the people with no power to stop the guy with all the power. Instead, you should be asking why the person with all the power can’t behave like a civilized human being in the first place.”

Not that this idea makes McQueary’s actions (or lack thereof) excusable or even understandable, but that conversation always helps me process situations like this.

What is the statute of limitations on child rape?

Sandusky has been charged with seven counts of involuntary deviate sexual intercourse with a child; eight counts of corruption of minors, eight counts of endangering the welfare of a child, seven counts of indecent assault and numerous other offenses. The charge that most closely resembles what we would consider “child rape” is involuntary deviate sexual intercourse with a child. The applicable statute in this case reads as follows:
A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age.
Involuntary deviate sexual intercourse with a child carries is a first-degree felony that carries a penalty of up to 40 years in prison PER ACT, which means that Sandusky could be sentenced to up to 280 years in prison on those seven charges alone. 

In addition, Sandusky was charged with seven counts of indecent assault, these are misdemeanor charges that prosecutors typically include as a catch-all when they charge someone with a felony. These charges will most likely be dropped when Sandusky is convicted on the felony charges (and believe me, having read the grand jury report, there is more than enough evidence to find him guilty on each and every charge).
The statute of limitations on the involuntary deviate sexual intercourse with a child charges is 12 years. However, when a crime is committed against a child, the statute of limitations does not start running until the child turns 18 years of age. This means that the boys raped by Sandusky have until they are 30 years old to report his crimes before time runs out.
Does Paterno knowing about the situation open him up to a civil lawsuit? 
It's possible. A good lawyer can turn just about anything into a negligence case, and there's plenty here that Paterno was negligent about. The problem is that, in order to file suit against him under good, old-fashioned negligence, the boys have to be able to show that Paterno's failure to report Mike McQuerey's allegations to the police was the "proximate cause" of their injuries (the rapes).  This means that, but for Paterno's failure to do more than the bare-minimum required by law, they would not have been harmed. 
That's a very difficult case to make, especially when the criminal conduct of another person is involved. The bottom line is that no one is truly responsible for the harm to the children but Jerry Sandusky.
There may be a specific state law that allows children to sue adults for failure to report abuse. I'll look into that and get back to you.
Is it ok for me to go to Sandusky's house and introduce his face to a 2x4? 
As the mother of  9-year old and 10-year old boys, I'd be right behind you. Alas, your butt would wind up in the slammer for assault with a deadly weapon. Then again, no jury (the Penn State student population excluded) would convict you. It's a push.
How high up in the chain at PSU will be prosecuted in this? Just those that were told about it? 
First, let's make a distinction between those charged with crimes (Sandusky, Athletic Director Tim Curley and Vice-President of Finance and Business Gary Schulz) and those who are simply morally culpable. 
Both Curley and Schulz have been charged with perjury (lying to the grand jury) and with violating the Child Protective Services Law. To make matters simple, just accept that the prosecution is claiming that Curley and Schulz are "required reporters" under the CPSL. Their lawyers argue that they are not. The prosecution has determined that Joe Paterno is a school employee, and not a school administrator. So the relevant portion of the statutes are these:
With regard to Curley and Schulz:  "In addition to other reports they make, required reporters shall report suspected child abuse to ChildLine." As best I can tell, "ChildLine" is akin to calling the DCFS hotline to report abuse.
With regard to Paterno: "Required reporters who work in an institution, school, facility or agency shall immediately notify the person in charge of the institution, school, facility or agency or the person in charge’s designee of suspected abuse. The person in charge, or the designee, shall be responsible and have the obligation to make a report of the suspected child abuse to ChildLine immediately. Nothing in this chapter requires more than one report from any institution, school, facility or agency.

(b)  The person in charge or the designee may not make an independent determination of whether to report. The person in charge or the designee shall notify the employe when the report was made to ChildLine.

(c)  Notwithstanding subsection (a), nothing in this chapter prohibits an employe who is a required reporter from making a report directly to ChildLine.

So basically, if you’re an employee of the school, you only have to report to your superiors (which is why Paterno hasn’t been criminal charged with anything. Technically, he told his superiors and he satisfied his obligation.) Now, if I were prosecuting this case, I’d try damn hard to make a case that Paterno is not just an “employee” of the school, but an administrator in charge of the entire football program.  Sadly, for whatever reason, the prosecutors have chosen not to go this route. Given the public outcry, I’m guessing they’ll live to regret it.

Is it possible more people could be charged as more information comes out? Yes. Is it likely? No. The grand jury did a very thorough investigation and I think those who will be charged have been charged.

Do you expect Paterno to face any legal charges or is this just a matter in the court of public opinion?

See above. For reasons I do not understand (I mean, other than that he's a legend and he's old), the prosecution has chosen to treat Paterno like one of the "good guys" in this case. I vehemently disagree with that. I think they could pretty easily argue that he's also a school administrator and charge him along with Curley and Schulz. But I think we all know how this one ends: Paterno is allowed to retire and walk off into the sunset with his "Winningest Coach In College Football History" sash around his shoulders.  
I would like to see Paterno charged with perjury based on the fact that he told the grand jury that McQuearey never told him the details of what happened in the locker room. It seems like his claim could be pretty easily refuted by McQuearey and his father (who reportedly went to Paterno's house with his son).
Since Paterno apparently never "witnessed" any of the actions of Sandusky would his testimony be allowed in court?
Paterno's testimony will be used for two purposes, if indeed this goes to trial (criminal cases usually don't): First, to establish that he did tell Curley and Schulz that McQuearey reported that something improper was going on with Sandusky and a child in the locker room (Paterno claims this is the extent of what McQuearey told him) for purposes of showing that Curley and Schulz violated the CPSA by not reporting the rape, and secondly, to refute Curley and Schulz's testimony that they were never told of Sandusky's actions. He can't testify as to the rape itself 1) because it's  hearsay and 2) because he claims McQuearey never told him.

Does anything about this case bother you?

You mean aside from all the children who were raped and sodomized so that a football program could maintain it’s sterling reputation?

Yes.

From a legal standpoint, it bothers me that Joe Paterno, the person who arguable had more power than anyone else in the Athletic Department, is being treated by prosecutors as a hapless employee who did the best he could in reporting vague allegations to Curley and Schulz. I would argue that Paterno is one of the most powerful men at Penn State. He’s certainly more of an administrator than a mere “employee.” Had they wanted to, prosecutors could have easily made a case against Paterno. They chose not to.

The motive in not doing so is obvious.

Thanks to everyone who submitted questions. I’ll try to update this page as more questions come in.

7 thoughts on “You’ve Got Legal Questions About Penn State, I’ve Got Answers

  1. Thank you for doing this. While I read the report and have been following along, this answered a lot of my questions about some of the finer details.

  2. Agree with Kristine. I’ve been reading a ton about this to better understand. But this was more informative than most things I’ve come across. Thank you!

  3. bcschick says:

    I loved the “Is it okay to go over to Sandusky’s house and introduce his face to a 2×4.” :)

  4. teebob2000 says:

    >>an administrator in charge of the entire football program

    Who are we kidding?? He’s in charge of Happy Valley.

    1. juliedicaro says:

      that’s my point. When they wrote the law, Joe Paterno wasn’t exactly who they had in mind as “an employee.”

  5. mb21 says:

    Julie, couldn’t they decide to prosecute Paterno at a later date? It wouldn’t surprise me if new school administrators sold him out in an effort to clean up. They’ve got a lot to clean up and they have to care more about the school’s future than its past. If selling him out helps the school move forward, I could easily see him being prosecuted. I hope he is

    1. juliedicaro says:

      They could, but they did come out in support of him at the intial press conference.

      I wrote a piece for Red Eye arguing that he can and should be charged with perjury. I’ll link to it when it’s up.

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