Wednesday, May 11, 2016

Penn State Focus Shouldn't Only Be Paterno, But How Sex Crimes Were Handled At Penn State Overall

In the news last week came, essentially, four new claims of abuse that happened at the hands of Gerald Sandusky while he employed as a linebackers coach at Penn State.

All are, at a bare minimum, troubling, and they invite the question "who knew what, and when" in terms of these allegations.

Three of the allegations, however, are worthy of further examination because they could demonstrate that the administrators at the time, which would include former athletic directors Ed Czekaj and Jim Tarman, violated the law.

It also could eventually - though nothing has surfaced yet - implicate Joe Paterno.

With the very important caveat being we don't know everything, we do seem to have enough to bring some context to the goings-on inside Penn State's athletic department during the last 40 years.  The only clear fact was that child sex allegations weren't handled with the respect they deserved.


To understand why, you need to go over the laws governing child abuse in the state of Pennsylvania.

On November 26th, 1976, the state of Pennsylvania passed Act 124, the Child Protective Services Law.  That law significantly broadened the way child abuse claims, and specifically child sexual abuse claims, were mandated to be reported.

It required that people in certain professions report immediately suspected abuse to law enforcement.

Two of the professions mentioned in the law are "school teacher" and "school administrator".

It also added that these professions that report child abuse claims would have immunity from prosecution.

To aid in that effort, the state of Pennsylvania created a hotline called "Childline", which was designed to make it very easy for members of the professions mentioned to report a claim.

Fast forward to last week.

The recent round of Penn State allegations in the news consist of four claims.   Three of them occurred after 1976.  One of them allegedly happened in 1976, under the sitting athletic director, Ed Czekaj.

Two more of them allegedly occurred in 1987 and 1988.  Both were made by assistant coaches, and at least one was referred directly to the sitting athletic director, Jim Tarman.

Recently, a report came out that those particular accusations "had no value":
Allegations that two Penn State assistant football coaches saw Jerry Sandusky have inappropriate sexual contact with children in the late 1980s are not only unreliable but of "no value," a prosecutor in Pennsylvania told The Associated Press. 
The alleged contact would've been more than 20 years before Sandusky's arrest and conviction on dozens of child sex assault charges. 
''The reports turned out to be double and triple hearsay and of no value, with the coaches in question each denying they saw anything,'' state Solicitor General Bruce Castor said. ''So dead ends there all around.'' 
The previously undisclosed allegations — included in depositions by some of Sandusky's accusers — came to light last week as part of a Philadelphia judge's ruling in a lawsuit brought by Penn State against an insurance company. 
The allegations claimed that an assistant coach saw "inappropriate contact" between Sandusky and a child at a university facility in 1987 and another witnessed "sexual contact" between Sandusky and a child in 1988. However, the court document offered no other details, such as the coaches' identities.
But is that really the end of the story here?  I don't think so.

The judge on the insurance case, Gary Glazer, didn't mention the accusations in the context of a criminal case.  His scope in regards to the allegations involved the communication of these allegations to Penn State's president and board of trustees.  "There is no evidence that reports of these incidents ever went further up the chain of command at PSU," he wrote, adding importantly in the prologue that the burden of proof in a criminal case is stronger than what he was required to adjucate.

From the actual report:
PSU requests indemnification from PMA based on CGL policies issued for the period spanning from 1969 until 2011, when Sandusky was employed by PSU (the "Insuring Period").  The terms of the policies existing from 1976 through 2001, when Sandusky committed acts of child molestation for which there is some evidence of record, are of particular relevance here.  Even more specifically, the court must examine the policies for the years 1976, 1987, 1988, 1998, and 2001, when PSU agents allegedly learned of Sandusky's abusive acts ("Potential Notice Incidents").  The form of the PMA policies changed over time, and different definitions and exclusions applied throughout the Insuring Period.  Of course, the facts of each Potential Notice Incident are different too.
The year 1976 is important because that corresponds to Act 124, while 2001 is the date of Sandusky's final documented crime on the Penn State Campus (as per the the special prosecutor's report during Sandusky's trial).

Also:
PSU is defined to include only its officers, trustees and stockholders.  The PSU employees with knowledge of these incidents, Paterno, the Assistant Coaches, and the Athletic Director, are not officers, trustees, or stockholders.
So for the purposes of Glazers' court filing, the criminality of all three of these parties are not within the scope of his work.  Despite the very interesting note that Paterno was, in the eyes of the judge, aware of one or more of the "incidents", Paterno is not an officer of the school, per this definition.
Since they apparently neglected to inform their superiors, including the Risk Manger, of the 1976, 1987 and 1988 incidents involving Sandusky, PSU cannot be charged with knowledge of Sandusky's molestations sufficient to require it to have notified its insurer, PMA.
So the court filing is saying that, since Paterno, the assistant coaches, and the athletic director were "agents", not "officers", and did not apparently tell higher-ups that there were abuse claims - including, crucially, the Penn State president - so it can't be proven that Penn State was obligated to report sex abuse allegations to its insurer in the 1970s and 1980s.

The revelations, however, do beg more questions - and that's the real value, in my mind, of Judge Glazer's court filing.

I am not a lawyer, but Act 124 states that the assistant coaches were bound by the law to report the claim of abuse at the time they learned of it.

The way the law is set up now it is certainly the case - if a mandatory reporter failed to report suspected child abuse by a variety of different means, they would be guilty of a crime.  (Recently, the Pennsylvania legislature made changes to these CPSL laws to expand them.)

Was that also the case in 1976, 1987, and 1988?  It's hard to say, without more information.

The prosecutor said that the assistant coaches in 1987 and 1998 denied they saw anything.  Conveniently, this also would mean that they didn't violate the law in regards to Act 124.  If they saw a child sex crime or reasonably suspected a child sex crime, as mandatory reporters, they would have been required by law to report it.

(This is one of the exact crimes that Tim Curley, Graham Spanier and Gary Schultz are allegedly scheduled to be tried for at some point in the future - that they were aware of allegations of child abuse by Gerald Sandusky, but did not report them to law enforcement.  All three are at large at the moment.)

It is unclear whether the sitting athletic directors at the time of those earlier allegations were actually made aware of these claims - if they went beyond the assistant coaches or even Paterno himself.

But based on Judge Glazers' court finding, his conclusion was that any allegations of child abuse claims in 1976, 1987 and 1988 were not reported above the athletic director to and sitting Penn State President, any member of the Board of Trustees, or members of the school's Risk Management team - who would have been required by law to disclose this fact to their insurance company.

Here's something else that's may need to be taken into account: for a two year span, Joe Paterno was Penn State's athletic director as well as head football coach.

It is extremely important to note that, as of this moment, not a single claim of child sex abuse by Jerry Sandusky is alleged to have been made or reported during Paterno's brief tenure as athletic director from 1980 to 1982, though of course there were allegedly claims made before and after.

It's also important to note that Jim Tarman was running the day-to-day operations of the athletic director's office when Joe Paterno was athletic director.

But it's not hard to imagine, considering that his predecessor and successor allegedly had to deal with the allegations of child sex abuse, Paterno having to go through the same decision making process as them - had a child sex abuse allegation cross his desk.

The key here isn't the crime of child sex abuse - the key is how critical administrators handled claim of abuse - including Paterno.

All of these administrators, at one time or another, have been faced the same questions in regards to the allegations.  Should this be reported to law enforcement? Do I inform the President?  Are there other victims?

Perhaps one allegation might be able to be dismissed.  But critically, once the accusations mounted, what is the threshold for action - especially when certain actions were mandated by law?

What we do know, thanks to my timeline, is that from 1980 to 1982, Sandusky had already opened The Second Mile already and had already spent a lot of time and energy tying that organization to Penn State athletics and Joe Paterno.  (There are even multiple newspaper accounts that make it look like Paterno and Penn State athletics were behind the venture, even though they weren't.)

There are still loads of questions about everyone's involvement at Penn State over the course of Jerry Sandusky's time at Penn State.

But the critical thing were is: scrutiny cannot begin and end with Joe Paterno.

It needs to expand everywhere, to assistant coaches, athletic directors, even former Presidents and board of trustee members, over the span of forty years.

The focus needs to be on precisely what crimes were committed, and when - how seriously charges of child sex abuse were considered, what the real interactions were with the victims, and what special treatments Sandusky was offered over his victims in terms of benefit of the doubt.  (For example, we know that the head of campus police, Tom Harmon, held off on reporting a sexual crime in 1998 due to "lack of clear evidence", despite clear evidence to the contrary.)

Much of the press coverage involves the involvement of Joe Paterno - what he knew, and when he knew it.  But there's a better way forward for everyone involved.

Follow the the allegations, follow how they were handled, and follow the actions of the people of Penn State.

Revealing all of these things will tell everyone what they need to know - and may, finally, help everyone start to this whole ugly chapter behind us.

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