Saturday, November 03, 2012

More Penn State prosecutions

More prosecutions were announced in the Penn State child sex abuse scandal. The NY Times reports:
On Thursday, Pennsylvania’s attorney general, Linda Kelly, said Spanier and the two other university officials — Gary Schultz, a former university vice president, and Tim Curley, the athletic director, who has been on administrative leave — engaged in a “conspiracy of silence” to “actively conceal the truth.”

“If these men had done what they were supposed to do and legally required to do, several young men may not have been attacked by a serial predator,” Kelly said at a news conference, adding it was not a “mistake” or an “oversight” by the men that allowed Sandusky to continue his abuse.

Spanier, 64; Schultz, 63; and Curley, 58, now all face numerous charges, including perjury, obstruction of justice, endangering the welfare of children and criminal conspiracy. Schultz and Curley, who reported to Spanier, were already scheduled to stand trial in January on charges of perjury and failing to report child sexual abuse.
It appears that they concealed some emails from prosecutors, but my main concern here is how this scandal will affect abuse reporting law.

It is not obvious why these officials would have any legal reporting responsibility at all. In most states, the responsibility goes to K-12 officials who witness evidence of child abuse. Penn State teaches students over 18 who are legal adults, and the officials only had hearsay. No Penn State students were abused, and no Penn State employees were suspected abusers. (Sandusky was retired, and no longer an employee.)

Here is the smoking gun against the Penn State president:
Spanier told Freeh's team that he believed in 2001 that the encounter witnessed by graduate assistant Mike McQueary amounted to "horseplay," although an email sent by him to Curley at that time reflected a much more somber tone.

In that email, Spanier was reacting to a proposal by Curley in which they would not report Sandusky to authorities but instead tell him he needed help and that he could no longer bring children into Penn State facilities.

"The only downside for us is if the message isn't `heard' and acted upon, and we then become vulnerable for not having reported it," Spanier wrote in 2001. "The approach you outline is humane and a reasonable way to proceed."

Spanier's lawyers have called the Freeh report a myth, and said he would have acted in 1998, 2001 or any time if he knew a predator like Sandusky was on campus.
This sounds bad, but why is this email incriminating? If Spanier believed that Sandusky had raped a boy, then they would be vulnerable whether the message is acted on or not. So I think that the email corroborates Spanier's story that he thought that the incident was just horseplay, but sufficiently inappropriate to raise concerns.

An email admitting vulnerability is normally not an admission of guilt at all. Suppose he wrote an email saying, "We should fire the teacher for doing a lousy job. The only downside is that if he fails to get a comparable job elsewhere, then he could sue us for racial discrimination." That is not really an admission of racial discrimination, but common cautiousness from a college administrator. See for example this recent post about Yale being overly cautious about use of the word "sissy".

The problem for Spanier is that if he is subject to the reporting law, then he is required to reported suspected abuse. If an email even mentions reporting as a possibility, then it is an admission of suspected abuse. Unless there was at least some suspicion, then why would he even discuss reporting?

Thus abuse reporting law is different from every other area of law. Normally you can freely discuss your obligations without incriminating yourself. If you ask a lawyer about a legal obligation, then the attorney-client privilege prevents that discussion from ever being used against you.

I once heard of a case where a hospital saw some unusual symptoms, and did not know whether they were evidence of abuse. So they called in a leading medical expert at the local university to give an opinion, and he said that it was not abuse. The hospital officials were later charged and convicted of failing to report suspected abuse. The prosecutor said that there mere fact of calling in an outside expert was proof that abuse was suspected.

I post this because I am afraid that the Penn State scandal is going to expand the scope and enforcement of these reporting laws. We will all be required to report our suspicions. Given the choice of making a phone call or running a jail risk, people will make the phone call. Even if it ruins lives. We are becoming a nation of busybodies.

More and more, the govt is going to be keeping lists of suspects from anonymous reports. Gays, blacks, immigrants, and Moslems should all be prominent on the lists because they are always suspected of being up to no good. And the liberals will not stick up for them because they like the expansion of govt power and the bureaucratic control over peoples' lives.


Anonymous said...

So Spanier decided that it was just horseplay, despite receiving a more somber email involving the event that Curley had described to Spanier ? Do you happen to know exactly what Curley's email to Spanier said ? Could Spanier have made a convenient, self serving interpretation ?

kurt9 said...

The charges against Curley and Spanier appear to be that they actively worked to cover up Sandusky's acts. I agree that if they are being charged for not reporting their suspicions to the police, that this is a serious threat to liberty, in general. Other than paying taxes, I've not known of any situation where the law places the burden of positive action on an individual.

Anonymous said...

Do you happen to know exactly what Curley's email to Spanier said ? Could Spanier have made a convenient, self serving interpretation ?

George said...

No, I do not know what Curley's email said. I believe that McQueary only reported horseplay, not rape, and changed his story later. It seems quite likely to me that if Curley and Spanier knew of a rape allegation, then they would have told McQueary to report it to the police. McQueary himself would have intervened or reported it. If emails prove me wrong, I will post it.