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Are we Penn State?

I spent a good amount of time this weekend talking about Joe Paterno and not because of football.  As an attorney with a Master of Social Work degree and years of experience working in and around child welfare, child sexual abuse and mandated reporter laws are issues that hit close to my heart and my professional life.

First, let me say despite the media’s initial concern about Penn State’s football program followed by its stumbling attempts to express sympathy for and sensitivity to the alleged victims in this case, I don’t care one bit what happens to Penn State’s athletic program compared to what happens to the alleged victims.  I feel the same about any athletic program when there are unresolved legal and factual issues about an alleged abuser and untreated, uncompensated alleged victims.  Victims, especially child victims matter.  In comparison to the suffering of a child victim of sexual violence, football does not, no matter how many years of service or how many wins a coach may have.

Secondly, let me tell you about the discussion I had with my dad this weekend about the legal and moral responsibilities that are at play in a situation like the one in which Joe Paterno and the Penn State football staff found themselves this weekend.  If you aren’t familiar with the story, here’s a link with a summary of events as I understand them to   as I write this.  http://espn.go.com/college-football/story/_/id/7207465/penn-state-nittany-lions-sex-abuse-scandal-jerry-sandusky-was-campus-last-week-reports-say.

My dad is a retired middle school teacher and long-time coach.  He takes his mandated reporter status very seriously and was very angry at Joe Paterno and believed Paterno should face criminal charges for failing to report the alleged child abuse by former assistant coach Jerry Sandusky to law enforcement.  Paterno did report to Penn State Athletic Department personnel, but did not take the extra step to report to law enforcement or child welfare agencies.  In my dad’s role as a public school teacher working with children, he would have faced criminal charges for failing to report the alleged conduct of Sandusky to police or child welfare.  He felt very passionately (the way he does) that Paterno’s conduct violated “the spirit of the law” if not “the letter of the law.”

Let’s take a step back here for some lawyer stuff.  Dad taught 11-13 year-old students at a public middle school in Illinois.  Paterno coached mostly adult college students in Pennsylvania.  Generally, our system of law does not place an affirmative (making you do something as opposed to preventing you from doing something) duty to report crimes.  This is a very old principle of our law that is older than our Constitution and comes down to us from English law.  Mandated reporter statutes place a higher duty than the general population has on certain people who work in certain kinds of jobs that put them in constant contact with children as part of their job.  Typically these sorts of people are health care workers like doctors and nurses, public safety officials like police and fire fighters, child welfare workers, and public school employees like teachers.  But remember, the duty owed by a mandated reporter to a child to report suspected abuse comes from the state statute in the state where the mandated reporter works.  In Illinois as a teacher, my dad was required to report to child welfare officials or police AND notify his superiors at the school when he suspected child abuse or neglect.

Here’s the relevant part of Pennsylvania’s mandated reporter law.  This is the law that defines the legal duty Paterno owed to the alleged victims.  Here’s a link to the whole section. http://law.onecle.com/pennsylvania/domestic-relations/

It’s a lot to read.  If you trust me, read on and I’ll explain the parts that are important.  If you don’t, follow the link and check the language of the statute against what I say.  This law says what a mandated reporter must do.  If the law doesn’t apply to Paterno, he had no legal duty to do anything to report the alleged abuse.

1)  Notice “college football coach” isn’t listed under (b), the list of persons required to report, but he might fall under the “but not limited to” language there.  His training to coach adult college football players may also not be sufficient to allow him to form a reasonable belief about abuse or neglect, but we don’t know exactly what he was told or when.  Paterno probably falls under part (c) above for staff members of public or private agencies.

2)  If Paterno was a staff member at an institution obliged to report under part (c), he might not have come into contact with children as part of his occupation, practice or profession.  He probably has to do with youth football camps and clinics as many college coaches do, but a court might find the kind of contact he may have had in the course of these camps and clinics constitutes “contact” for the purpose of this law.  There may be some argument over whether this kind of contact was in his “occupation, practice or profession” as a coach of adult college football players as an employee of Penn State or whether this was an extra activity, but I bet there were Nittany Lions all over the t-shirts and promotional materials for these camps.

3)  Even if Paterno came in contact with children as part of his occupation practice or profession, his obligation was to notify the person in charge of the institution (Penn State).  He arguably did that by notifying his superiors in the athletic department.

4)  When the alleged abuse occurred, a law with less stringent reporting requirements was in place.   You can read a discussion about that at: http://mattmangino.blogspot.com/2011/11/penn-state-mandated-reporter-law-under.html

Not very satisfying is it?  That gets back to my dad’s argument about the letter versus the spirit of the law.  The letter of the law lays out a mandated reporter’s duty in words.  If a person does not satisfy their duty as it is written in the law, the law prescribes a penalty. In this case it’s a misdemeanor for failure to report suspected child abuse.

But what would happen if our courts enforced what they saw as “the spirit” of the law?  How would Joe Paterno know what his duty was?  Whether to report child abuse is an easy one.  Yes, you report.  To whom you report may be tougher.  Joe’s a less sympathetic case.  He’s probably a millionaire or at least doing very very well financially.  He can probably get another coaching job relatively easily (at least after the media attention dies down and any possible criminal liability is resolved).

What about a janitor at Penn State who volunteers at football camps with youth?  Does he come in contact with children in the course of his occupation or profession?  Is he one of the enumerated lists of people obliged to report?  Does he have the training or experience to form a reasonable suspicion that abuse has occurred?  Let’s pretend our janitor, who we’ll imagine has a high school degree in this economy reports the Nittany Lions for harboring a child molester in College Station, Pennsylvania.  Football is a religion in College Station and Joe Paterno is its god.  Will our hypothetical janitor be able to find a new job if he’s fired for reporting to law enforcement or child welfare?  How will he feed his family while he’s looking?  Tougher question than Paterno?  If you were our janitor, wouldn’t you want to know what the law required of you before you made your decision to report?  Or would you want the courts to decide whether you were a criminal based on “the spirit” of the law?  Some lawyers and judges would call this judicial activism.

Do you know what your mandated reporter obligations are?  Do you know what the law says in the state where you live?  Is it more important to you to comply with the letter or the spirit of the law?  Here’s a link to a guide published by the Missouri Department of Social Services. http://www.dss.mo.gov/cd/pdf/guidelines_can_reports.pdf.  Do you think your state’s mandated reporter law would cover a Penn State situation?  Here is Missouri’s mandated reporter law.  http://www.moga.mo.gov/statutes/C200-299/2100000115.HTM

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