Should Joe Paterno have done more to protect children?

If what the Attorney General says is proven to be true, then Jerry Sandusky, Tim Curley, and Gary Schultz have failed Penn State University, every student-athlete, and every fan of the program in the most egregious way possible, and infinitely more grievously, contributed to the violation of eight young men by either commission or omission.

Innocent or guilty, Penn State's reputation is permanently changed from this day forward. Penn State's athletic slogan "Success With Honor" is irreparably defiled with the alleged defilement of eight young children by an icon of the university and the charges of cover-up by the school's athletic administration.  

But an important question still remains unanswered and will be debated ad nauseaum: Despite the lack of a charge against him, did Joe Paterno, the winningest head coach in Division I history, do everything he should have done to protect children? Or should he also be implicated in the alleged cover-up?

My answer is yes to the first question and no to the second. I am not a lawyer, but three years ago I wrote the majority of our church's Child Protection Policy, and in doing so became very familiar with the requirements for mandatory reporting of child abuse in Pennsylvania. If Paterno's testimony is true, (and the Grand Jury found his testimony credible), he did exactly what was both legally and morally required in the situations in which he found himself. 

In the spring of 2002, a graduate assistant football coach allegedly found former defensive coordinator Jerry Sandusky in the showers of the Lasch Building engaging in sexual activity with a minor. He had a decision to make. He could have kept what he saw to himself, which would have been both illegal and immoral. He did the right thing and went to his immediate superior, Head Coach Joe Paterno.

The laws in Pennsylvania regarding mandatory reporting of suspected child abuse can be found in 23 Pa. C.S. 6111-6119. Section 6111 has to do with the responsibility of mandated reporters to report suspected child abuse. Subsection c is quite important, as it has to do with the responsibilities of staff members of institutions. It reads thus: 

(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.

When I explain our child protection policy to our Sunday School teachers and others who have contact with minors, I stress that they are not to contact law enforcement themselves with their observations or suspicions. Rather, they are to contact the person in charge of the institution, the pastor (or in his absence, the vice-president of the Congregation Council), and inform them of their suspicions and observations. The pastor or the vice-president is then to make a report of suspected child abuse according to the guidelines of section 6313.

This is exactly the procedure that the graduate assistant, and then Joe Paterno, followed, in an infinitely larger institution. The graduate assistant reported to his immediate superior, Coach Paterno. Coach Paterno then reported the suspicions and observations to his immediate superior, Tim Curley, the athletic director. The graduate assistant was interviewed by Curley and Gary Schultz. What should then have happened?

Whether Curley and/or Schultz should have reported to the President of the University, or whether in his position as athletic director, he was the "designated agent" of President Spanier and authorized to make a report on his behalf, he did neither of these things. Instead, according to the charges, the matter stopped there. Law enforcement was not informed, as should have been automatic under section 6313. This is "failure to report" and is covered under section 6319:

§ 6319.  Penalties for failure to report or to refer.
        A person or official required by this chapter to report a
     case of suspected child abuse or to make a referral to the
     appropriate authorities who willfully fails to do so commits a
     misdemeanor of the third degree for the first violation and a
     misdemeanor of the second degree for a second or subsequent
     violation.

 

If the Attorney General's charges are accurate, and Tim Curley and Gary Schultz willfully failed to report a case of suspected violation of child abuse, they are guilty of a crime.

But this is exactly what the graduate assistant and head coach Joe Paterno did NOT do. When observing suspected child abuse (in the graduate assistant's case), and receiving a report of such (Coach Paterno), they reported it to their immediate superiors, who then had the responsibility on behalf of the institution to inform the authorities of their suspicions. They followed the law.

The question will be asked, however: If Coach Paterno discovered that there had been no follow-up (still an open question), should he have gone to the authorities himself? Did he protect himself by following the letter of the law and ignore its intention for the sake of his own reputation, or that of a friend's, or of Penn State's ? I say no, for the following reason:

When child abuse is suspected, it is a matter for law enforcement to determine the facts of the case. Both the graduate assistant and Coach Paterno had neither legal nor moral authority to judge for themselves whether child abuse had actually taken place. If every person that suspected child abuse in an institutional setting were permitted to take the law into their own hands by contacting authorities, it would become incredibly easy for anyone with a vendetta against a colleague, a superior, or an underling to ruin a career and a reputation by making unfounded reports with no check. That is why they are to report to the heads of their institutions, whose responsibility it is to make the report, based on whether or not there is 'reasonable suspicion' that abuse has occurred.

Curley and Schultz had this responsibility. In the view of the grand jury, the graduate assistant's testimony was "very credible." Curley and Schultz's testimony as to why they did not report was not credible. Therefore, the charges of perjury and failure to report.

If the grand jury findings are accurate, the graduate assistant who discovered Coach Sandusky in the showers with a young man and Coach Paterno, who reported this man's suspicions to Athletic Director Spanier, are blameless in this matter. They did what the law required, and they did what was moral, because they had no legal or moral authority to judge whether Jerry Sandusky was guilty of a crime. They reported suspected child abuse, which was not passed on. 

If the charges against Coach Sandusky, Athletic Director Curley, and Vice President Schultz are true, it would be a tragedy. It would be tragic that Coach Joe Paterno, who has stood for the highest ideals of integrity in college athletics for over sixty years, will be associated in the last years of his brilliant career with this sordid scandal. It would be infinitely more tragic that eight innocent children would bear for their entire lifetimes the scars inflicted by the sins of omission and commission of these three men.