Following the 40 count indictment of former Penn State assistant coach Jerry Sandusky for child sex abuse and Athletic Director Tim Curley and Gary Schultz, Vice President of Finance and Business, for sex child abuse cover up and perjury, many state legislators are now playing Monday morning football and focusing on whether tougher child abuse reporting laws are needed. Reporting child abuse allegations varies from state to state. In Pennsylvania where these alleged acts took place, the law did not require that everyone who suspects child abuse must report it to authorities. Pennsylvania Governor Tom Corbett, former Pennsylvania Attorney General and a Penn State trustee is considering stricter child abuse reporting laws for Pennsylvania.
Based on present Pennsylvania law, assistant coach Mike McQueary, who eye witnessed Sandusky having anal sex in a shower with a 10 year old child in 2002, was not legally obligated to report what he saw to any authorities. McQueary was considered a “permissive” reporter in that he was permitted to but not required to report. Head coach Joe Paterno and Penn State President Graham Spanier, who were made aware of some of the allegations were also not criminally charged. Both were fired for a lack of a moral obligation.
Under Pennsylvania law, a person who is required to report suspected sex or child abuse crimes but fails to do so is subject to a misdemeanor. Eye witness McQueary, the person most morally obligated to report the incident, bears no legal responsibility and has been allowed by Penn State to keep his job, albeit under alleged death threats.
The assumption by Pennsylvania Governor Corbett and other state legislators considering tougher reporting laws is that it will result in more reports of child abuse. While it’s too late to help the alleged victims of Sandusky, it is hoped that laws with tougher penalties and criminal consequences for non-reporting and a higher legal obligation to report will help future victims.
Failing to report crimes is nothing new. There have been other well known cases dating back to the infamous Kitty Genovese New York case in 1964 where allegedly over a dozen of witnesses saw a murder take place and did nothing to report it. As a former prosecutor, I oversaw a murder investigation in a well- known night club with over 200 potential witnesses and no one came forward.
And the first case against Sandusky was reported to the authorities in 1998 by the mother of the victim and investigated by the state prosecutor’s office. It resulted in no charges being brought. It begs the question of whether more stringent reporting laws would have made a difference in the Penn State sex scandal. Tighter laws are nothing without enforcement of those laws.
According to the Department of Health and Human Services, all states, including the District of Columbia have laws on who is required to report child abuse. Many states designate certain professions such as social workers, teachers, health care worker, mental health professionals, child care providers, medical examiners and law enforcement officers as persons required to report instances of abuse. In 18 states including Puerto Rico, anyone who suspects child abuse is required to report it. In all other states, any person is permitted to report but not required to do so. The identity of the reporting person is kept confidential from the perpetrator in 39 states and the District of Columbia. Presumably, Pennsylvania and other states may now be considering making it mandatory for anyone who suspects child abuse to report it.
It still begs the question of whether stricter laws will make the difference. We’ve all heard the saying men will be men and boys will be boys. Well cowards will continue to be cowards. And tougher reporting laws will not change their actions. More laws will not necessarily mean more reporting. Cowards will continue to go on protecting their own selfish interests, do nothing and hope they will not get caught with their pants down in a Penn State type scandal.
On an institutional wide basis, what will make a difference is hitting them in their pocketbook with punitive damage awards. Getting hit with tens of millions of dollars and more will go a long way towards making a difference. Ask Penn State—they’re about to find that out soon.
Debbie Hines is a lawyer, former prosecutor and legal commentator appearing in national and local media including CNN, the Michael Eric Dyson Show, XM Sirius radio, NBC , ABC and CBS -Washington, DC affiliates, NPR, the Wall Street Journal, Washington Post, USA Today, Black Enterprise among others. She founded LegalSpeaks, a progressive blog on women and race in law and politics. She also writes for the Huffington Post.