Do little details like the law matter?

Earlier I wrote a comment in which I explained why I am defending Joe Paterno, who has been condemned by a number of commenters at this blog:

Without wearing blinders, I have read numerous accounts and reports. Paterno (a longtime family friend) was exonerated of any legal wrongdoing years ago. He has been subjected to a media circus for failing to report to the police what he did report to his university superiors: a statement by a man who claimed to be a witness, but who never called the cops and did NOTHING to prevent an atrocious crime he claims he saw in progress.

I am standing up for Joe Paterno and against what I see as a media-driven lynch mob. I would stand up for anyone accused in a similar manner of being culpable because of the actions of someone else.

If Paterno’s failure to call the cops was so egregious that it demanded his firing, then why wasn’t he fired in 2002? The reason is that he followed university procedures in place at the time. Penn State is a government run school, and there is a chain of command. Paterno — a non-witness — had the right to assume that what he reported would be investigated, but that investigation was not his responsibility.

Not that anyone cares, but it has never been established that the crime which was alleged actually took place. The alleged victim has never been identified. The outcry demanding the head of Paterno rests on a very flimsy legal standard.

As a couple of commenters have pointed out that the reporting law is murky, I thought I would look into what Pennsylvania law required of Paterno at the time.

First, Paterno would have to have been a person required to report child abuse:

§ 6311. Persons required to report suspected child abuse.

(a) General rule.–A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator.

[…]

Coming into contact with children is not normally considered to be within the scope of “employment, occupation or practice of a profession” of a university football coach. College football teams consist of adults, and a college football coach is analogous to a college professor. Any contact with kids would be incidental, but not part of their employment. Unless Paterno had been running a summer football camp for children or something like that, his normal coaching duties did not involve contact with children.

Second, the alleged child abuse has to occur in relation to “a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated.” As no one knows the identity of the child in question, it is impossible to determine under whose care or supervision he was supposed to be, or whether it was appropriate for him to be present in the locker room where he was allegedly seen. As Sandusky was not a coach at the time of the incident, Paterno had no authority over him. Nor is there any indication he was involved in any way with the care, supervision or guidance of an unidentified boy he has never been alleged to have even seen. (A lingering question in my mind is that if we consider that the alleged victim has never been identified, why is everyone saying he was ten years old? Because the witness said so? How could he possibly know that?)

So I am not seeing Paterno as being in the category of persons required to report, nor the boy in the category of persons under his care or supervision. Other than whatever University rules existed at the time, I’m not seeing a legal duty on the part of Paterno to report anything.

But he did so anyway. Paterno reported the secondhand information to his superiors. By doing so, he did more than he was legally required to do, not less.

Now, even if we assume Paterno was in the category of persons required to report child abuse, and that the child was within his supervision or control, that still would not have made him the person charged with responsibility for filing the required child abuse report.   Such a responsibility would lie with the person in charge of the institution:

(c) Staff members of institutions, etc.–Whenever a person is required to report under subsection (b) in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with section 6313. This chapter does not require more than one report from any such institution, school, facility or agency.

The ultimate reporting requirement, if any, was with the President of Penn State.

By reporting this to his superiors, Paterno did more than was legally required of him, not less.

I am getting really ticked off about this because I know Paterno to be a very decent man, and I’m mad as hell about the way they’re going after him as if he’s culpable.

At least I’m not alone in my opinion that this is a disgraceful witch hunt.

MORE: As of now, McQueary (the eyewitness who admits he saw the child raped but did nothing) is on administrative leave as coach.

Penn State’s deposed receivers coach Mike McQueary, today placed on what the school called “administrative leave,” moments ago told his receivers on a brief conference call that he was in “protective custody” at a secluded location not in State College.

McQueary, witness to the alleged sexual assault of a 10-year-old boy in 2002 by Jerry Sandusky, has been the subject of physical threats. He is the key subject in further investigation into the scandal and potentially could be the single most important trial witness.

On Friday afternoon, according to two team sources, new receivers coach Kermit Buggs gathered his players in a room at the PSU football complex and allowed them to talk with McQueary on a speaker phone.

During a brief and emotional conversation, McQueary told them, “I wanted to let you guys know I’m not your coach anymore. I’m done.”

The story keeps getting weirder and weirder. And why is it being reported as a fact that the boy was ten?


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17 responses to “Do little details like the law matter?”

  1. JohnAGJ Avatar

    Really? You’re falling back on a “technically legal” defense? That’s pathetic. You may be right that Paterno did not local or state law, but you’ll be hard-pressed to claim that what he did was ethical. He was right to report the allegations to his superiors but never followed up on it, even after seeing Sandusky around campus later on. What he did was either extremely negligent morally-speaking or cowardly as hell. The more I read about this the angrier I get at Sandusky to be sure, but also Paterno the PU president, that coward McQueary who did nothing to stop the assault on that boy and the rest of them.

  2. Allen Edwards Avatar
    Allen Edwards

    This.

    Arguing “legal” versus “moral/ethical” is cowardly caviling. I expect more of you, Eric.

  3. Will Avatar
    Will

    I have no clue what Joe Paterno knew, thought, or believed, over the years of these events. A lot of people loved him and just as many hated him before this story unfolded. Most of them know little more than I do about the real man.

  4. dr kill PSU 76 Avatar
    dr kill PSU 76

    This isn’t nearly the mess yet it will be during the next five years, as the cases are resolved and the lawsuits begin. This is gonna feed many many lawyers. Every aspect of the school will suffer for at least another ten years. There’s surely more people to be fired and jailed.. Only in the progressive leftist statist bureaucratic academic shithole of a university could these guys not understand the anger of the alums with real fucking jobs. I believe these stand in line commies really thought they had done what was required. they are pathetic. universities actively breed anti-individualists and punish free thinkers.

    The trustees cynically used this as an excuse to finally get rid of pain-in-the-ass Joe and pussy Spanier. it’s a big business, and they need to save the brand. Joe should have gone ten or twelve years ago, don’t you remember? But he dug in and somehow beat Spanier, then weaseled his way in tight with the undergraduates with Paternoville and pizza and ass-kissin at the stadium. I understand how they feel , he has been their man the past ten years. he made them feel important.

    Joe has always said he does everything for the glory, but he has had three huge choices to do the right thing for the U in the past 15 years and he did none of them, but instead chose the behavior which benefited him. Up to the end he manipulated to stay till the end of the year. He had to go now. The trustees could not allow him to be cheered on nat TV saturday

    They say everyone around Sandusky knew there was a problem, going back 20 years or so. I cannot believe how he was allowed to continue. Honestly, everyone knew. Why else he retired never to coach again? and there is a district atty out there somewhere who disappeared during an investigation, too. maybe a murder

    just when you start to think you cant be any more cynical-

    you might have a small idea that i hate all things government and distrust all authority and all law enforcement, and have a deep suspicion of those who participate. I know all about right and wrong, but what passes for legal v illegal in the am system of justice as it is currently interpreted is sickening.
    Only someone who supported a wife and 4 kids by the seat of his pants for 35 years would really understand how i feel
    so you can imagine how i feel about this sandusky shit, as again i predict the future. I also hate the grand jury system. this shit had no business in the hands of a DA. I can’t imagine the politics and pressure used against anyone trying to do the right thing.

    my granddad used to say — never underestimate what a man will do to keep a good payin’ job

    but i dont really understand bureaucratic inertia and nepotism they way you must. i spent all my life fighting against it, avoiding it and railing about it. But im pretty sure that all these guys feel that they really did what they were supposed to do. and are surprised to see how we on the outside feel about the charges and timeline put forward. so while i feel they all are to blame, it again is the system which insulates the users from the reality of day to day on the outside that allows this shit to happen. americans now judge events not on results but on whether good intentions and the proper feeling was demonstrated. we have changed from keeping score to everyone gets a trophy. from hockey to fugure skating and the progressive judges do all the scoring

    all the poor little abused boys from broken or low functioning families that are same as good little commies, conditioned by gov to standing in line for some gov cheese, this is where it breaks people down, people who dont need to think for themselves wont.

    well, I told paterno, so it must be ok
    well i told curley
    well i told spanier
    fuck all of them. this is going to destroy, recruiting, applications, fundraising, faculty, coaches for at least ten years. i wouldnt be surprised (if the charges are true) that season ticket sales drop off and maybe someone organizes a boycott of a game or two. i believe they will all lose their jobs in the next two years as this thing plays out. they must go

  5. Eric Scheie Avatar

    OK, so what would anyone have had Paterno do? The boy’s identity was unknown, right? Does anyone think Sandusky would have told them who it was? What was there to go on? Intuition? If you know a guy is a child molester, exactly what do you do? He was no longer on the staff, they took away his access to the locker rooms, but unless McQueary had tackled him at the time and detained the child, they could not have prosecuted.

    What should Paterno have done? Call the DA and demand a prosecution? On what evidence? Child protective services had already investigated Sandusky in 98 and brought no charges.

    Paterno could have shot him, I guess. Would that have been a good career move?

  6. JohnAGJ Avatar

    Did he call the police? No. Did he follow up with the Administration to make sure that they called the police? No. Did he say anything when Sandusky was on campus again afterwards? No. Did he follow up with McQueary? No. He kept working with the man for years. This was one of the most heinous crimes imaginable and Paterno did nothing. Oh yeah, he told his supervisors. Great. Swell. That’s fine for minor crimes I suppose but most definitely not child rape.

  7. Eric Scheie Avatar

    Without an identified or identifiable victim, it’s like talking about a murder without having a body.

    “So-and-so told me he witnessed a murder.”

    “So-and-so told me he witnessed a rape.”

    OK, but who? Where? Unless you saw it, what is there to go on?

  8. JohnAGJ Avatar

    An identifiable victim isn’t necessary when a graduate student comes to someone like Paterno stating that he witnessed a child rape on-campus by a former coach. That brings an ethical and moral duty to report such crime to the police. It wasn’t Paterno’s duty to ascertain who the victim was, that’s the job of the police to investigate, but it sure as hell was to notify them. Instead, he failed to do so and Sandusky was allowed to get away with his child rapes for another 9 years because of Paterno’s inaction.

  9. Eric Avatar

    Sandusky was allowed to get away with his child rapes for another 9 years because of Paterno’s inaction.

    Wrong. First of all, the police knew all about Sandusky. So did everyone at Penn State. That’s why he was no longer on the staff. Remember, in 1998 he had been caught by the police admitting to his crimes:

    http://www.pennlive.com/midstate/index.ssf/2011/11/gricars_nephew_on_1998_sandusk.html

    ***QUOTE***

    In that 1998 case, Gricar [the DA] had the mother of one boy confront Sandusky in her home while police hid in another room.

    According to the grand jury report, Sandusky admitted to taking a naked shower and touching the boy, asked for forgiveness and said, “I wish I were dead.”

    About six weeks after the incident, police closed the case.

    ***END QUOTE***

    So, if Paterno knew the cops had done nothing even when they had an actual named victim PLUS an admission by Sandusky, what would calling the cops in the absence of a victim have accomplished? It is very easy to judge Paterno now, but he did report it. I fail to see how calling the cops would have accomplished anything at the time. Sure, no doubt Paterno wishes he had called the cops in retrospect. But that wouldn’t have meant anything, not would it have stopped Sandusky; it would only have added to the paper trail to make Paterno look better. I guess that’s what this is about.

    The way people are talking, you’d almost think Paterno is the bad guy.

  10. MikeIA Avatar
    MikeIA

    Out of the whole population of Penn State, over a long period of time, only a few people in the athletics dept knew of this? Or are they the only ones who tried to do something? Where were the social activists, intrepid reporters and such?
    The onus of this scandal lies with the trustees,hence the name and position. The fact is Paterno and the coaches did more than anyone else. Should they have done more? Emphatically yes.But they shouldn’t be judged by people who did nothing.

  11. Frank Avatar
    Frank

    The indignation over this event is great, but meanwhile we are giving billions of dollars to a group of tribes in Afghanistan whose cultural focus is now and has been for centuries male pedophilia.
    Our entire government is not only looking the other way, we are supporting it.

    http://www.youtube.com/watch?v=P1BNeXTLHoY

    As if this isn’t enough we continue a draconian War on Drugs here, and in Columbia, and run guns into Mexico to facilitate even more carnage, while spending billions building roads and schools and greasing the pockets of tribal chiefs in Afghanistan, the opium capital of the world.

    Excuse me while I laugh my ass off listening to those who want to jail a college coach who didn’t do his moral duty and report hearsay to police.

    From that pillar of moral rectitude, Andrew Sullivan, we have this:

    To my mind, Paterno needs to be prosecuted…

    http://andrewsullivan.thedailybeast.com/2011/11/dissent-of-the-day-1.html

    His asinine remark is buried in a response to a well written dissent by an attorney which he quotes. The dissent is worth your time.

  12. JohnAGJ Avatar

    So, if Paterno knew the cops had done nothing even when they had an actual named victim PLUS an admission by Sandusky, what would calling the cops in the absence of a victim have accomplished?

    Perhaps nothing at all or perhaps everything. It doesn’t matter or negate the fact that he had moral obligation to inform them of what McQueary claimed to have witnessed. What the police may or may not have down afterwards is irrelevant to that fact and not something Paterno, McQueary, or anyone else at PennState would have been responsible for legally or morally.

  13. Frank Avatar
    Frank

    For a libertarian site, this event has sure brought out the busy bodies and do-gooders. So if I get this straight, anytime someone passes along a second hand event and wants ME to rat to the police because he doesn’t have the guts, it is my moral responsibility to hot foot it down to the local precinct. Or maybe we could get a toll free number set up specifically for rumors, innuendos, and gossip.

    Do you guys realize just how close to your ideal the Cuban block committees and the Stasi were? Or is this just a long repressed desire to return to the good old days of Salem?

  14. Frank Avatar
    Frank

    Rush Limbaugh, November 3, 2011:

    They’ve been gunning for Joe Paterno for years — assorted alumnae, media, what have you — simply because of his age. So it looks like Joe Paterno who up until all of this had just an impeccable reputation, is (if this New York Times story is correct) gonna be forced out of Penn State with none of that intact which, sad to say — there are several in our culture — several people love to just tear people down, no matter what. They just love to destroy ’em. It’s a fact of life in our culture because impeccably reputed people make everybody else look bad. So if we can make everybody look like a reprobate, it’s not so bad to be a reprobate. If everybody looks like a scumbag then it’s not so bad to be a scumbag.

    The model now? People like Bill Clinton. That’s the hero, that’s the star, that’s the guy we all want to end up being like.” That’s who the Democrat Party hoists up — and if they don’t hoist ’em up, they do their best to protect ’em, as in John Edwards, Ted Kennedy, you know the drill. See, the left wants no standards for themselves. They don’t want to be judged, because they know full well they’ll fail. They know full well that they will come up short if measured against standards, and so there can’t be any standards. It’s just like people in poverty. The left… You’re seeing it now. They don’t want to elevate people. They’re not interested in taking the 99% and getting them into the 1%.

    They’re not interested in taking the bottom 40% and putting them in the top 50%. Nope! They want to go up to the top, take everybody up there, and bring ’em down; cut everybody down to size — and they’re doing it to the country.

  15. Frank Avatar
    Frank

    So if we can make everybody look like a reprobate, it’s not so bad to be a reprobate.

    Does Rush have Sullivan in mind?

  16. Frank Avatar
    Frank

    Correction: November 8, 2011 for Limbaugh.

  17. […] testimony brought down Joe Paterno and got several other Penn State officials indicted (and whose story of the anal rape and constantly shifting statements convince me that he is not credible), has changed his story yet […]