The debate over Penn State's treatment of football coach Joe Paterno has reached into law school classes.
In my Legal Ethics class at Harvard Law School, a spontaneous debate broke out over whether Joe Paterno got a bum rap for being fired. As in any good law school class, all sides of the issue were presented vigorously and articulately.
First, we discussed whether Paterno had any legal obligation to report to the police what his assistant coach, Mike McQueary, told him he saw in the locker room. The virtually unanimous view was that he had no legal obligation to do anything -- not even to do what he did, namely relay the conversation to his immediate superior, the Director of Athletics. Unlike many European countries, most American states place no affirmative duty on citizens to report even crimes they have themselves seen, and certainly no duty to report crimes that others have told them about. I'm not aware of any Pennsylvania law, in effect at the time of these events, that would have imposed any such legal duty on Paterno. The fact that he did report the conversation to his superiors would seem to immunize him from any legal liability, either criminal or civil.
This conclusion was based on what is currently in the media. There may be facts not known to the class that could change the legal landscape.
Several students immediately sought to probe the distinction between legal and moral obligations. This being a class on legal ethics, this distinction is often central to our discussions. In the classroom, the issue often arises in the context of information confidentially given to a lawyer by his client. In such situations, the lawyer may have conflicting obligations: a legal obligation to confidentiality of his client; and a moral obligation to try to prevent continuing conduct that could harm others. But Paterno is not a lawyer, and McQueary was not his client. He was free, therefore, to disclose the conversation to anyone he chose, and it seems likely that McQueary actually wanted him to turn the information over to the proper authority, so that Jerry Sandusky would not be able to continue doing what McQueary had seen him do.
The moral question, therefore, is whether Paterno did enough by simply conveying the information one step up in the hierarchy to the athletic director, and doing nothing further. Reasonable people can, and do, disagree over the answer to this question. Some take the view that Penn State is a rigidly hierarchical organization, and that in such an organization, it is sufficient to report to one's superior. Others point out that the Catholic Church too, is a hierarchical organization, and when priests reported abuse to their bishops and the bishops reported the abuse up the hierarchy, the problem persisted. Yet others take the view that if Penn State is a hierarchy like the Vatican, then Paterno was "the Pope," and the buck stopped with him. He, not his superiors, was the person responsible for reporting the episode to the police. That seems unfair in light of the fact that popes can't be fired, and yet Paterno was discarded like a bag of putrid garbage, when it served the interests of the Board of Directors to distance themselves from him. The President, who was also fired, was apparently the highest official to whom the information was transmitted, although it isn't clear precisely what he was told by the time it got to him through the filter of several others. It was the president who was ultimately responsible for the misguided decision to "resolve" the "problem" internally instead of reporting the crime to the police, as should have been done.
There is another factor, which may explain, if not justify, Paterno's limited actions in going only to his immediate superior. Paterno and I come from roughly the same generation. We grew up during the period of McCarthyism, and my parents taught me, as his parents may well have taught him, that the most unforgivable sin is to "snitch" on one's friends and colleagues. Being called a "snitch" was just about the worst thing anybody could say about someone who grew up in the 1940s and 1950s. Moreover when we grew up, no one understood the pervasiveness and seriousness of child abuse. Again this is not an excuse, any more than the Catholic Church's long traditions of confidentiality, forgiveness and hierarchy, were an excuse for its inactions in the face of widespread child abuse. But it may help some to understand why a good man like Joe Paterno might fail to do what a younger generation of good men and women would naturally do when told about a child being abused by a former assistant coach.
I think the consensus of the class was that regardless of what the law did or did not require, Paterno should have done more than simply report to his superior and wash his hands of the matter -- if, in fact, that's all he did. As the moral leader of Penn State athletics, he should have served as a role model for the current generation of students and athletics. At the very least, he should have followed up to see whether the school had done enough to avoid a recurrence. Perhaps if he had insisted that more be done beyond taking away Sandusky's key and gym privileges, more would have been done.
All this is clear with the benefit of hindsight. But from the perspective of events as they unfolded, it is asking a lot of a football coach, even one as revered as Paterno, to have served as the primary or exclusive guardian of the morals of Penn State.
I believe, and here I'm speaking for myself and not my students, that, on the basis of the information now in the public sphere, Paterno was treated unfairly by the Penn Board. His extraordinary contributions to the school -- both on the field and off -- should have been weighed in the balance and he should have been permitted to retire with dignity. His legacy should be that of a giant, who may have made one serious mistake of judgment, which seems clearer in retrospect than it probably was at the time it was made. There are no perfect heroes in real life, just flawed human beings who should be judged on the totality of their merits and demerits. When so judged, Joe Pa is still a flawed hero in my eyes. Many of my friends and students disagree, believing that his mistake was so serious that it trumps his victories on the Grid Iron. It's an interesting debate. What do you think?
A version of this article first appeared on Newsmax
Joel Cohen and Bennett L. Gershman: Is Jerry Sandusky Also a Victim?
http://law.onecle.com/pennsylvania/domestic-relations/00.063.011.000.html
23 Pa. Cons. Stat. § 6311
Chapter Heading. The heading of Subchapter B was amended
December 16, 1994, P.L.1292, No.151, effective July 1, 1995.
§ 6311. Persons required to report suspected child abuse.
(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.
McGarity fulfilled his obligation to report to a "Superior". Thus the obligation rested on Paterno to inform the authorities.
I don't think many of the 32 million hits to Google on the Sandusky case would agree with you that a serial homosexual rapist like Sandusky represents just "one debatable oh schitte! " It's not debatable. And what we from Sandusky's accusers so far is just the tip of the iceberg. He didn't start doing this yesterday. And Sandusky could be the tip of an iceberg where 240 THOUSAND American high school boys have been subjected to the same thing, only to have the RCC cover it all up. Even so, NO "lifetime of superior attaboys" should permit even ONE case like this to go unpunished. And imprisoning him is NOT punishment.
• 85% of Mississippi voters amend state constitution in 2001
• 76% of Texas voters pass Proposition 2
• 71.6% of Kentucky voters amend state constitution
• 70% of Nebraska voters amend state constitution with Initiative 416
• 69.4% of Nevada voters amend state constitution
• 68% of Alaska’s voters amend state constitution
• 66% of Hawaii legislators amend state constitution, 69% of voters endorsed that amendment
• 61.4% of California voters pass Proposition 22 on March 7, 2000, then again 53% pass Proposition 8 in November 2009
• 57% of Oregon voters reject the National Gay and Lesbian Task Force and amend their state constitution
• 53.4% of Colorado Voters amend state constitution on November 3, 1993
• FEDERAL DOMA law passed on September 21, 1996 ends gay marriage
• “Voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah all approved anti-same-sex marriage amendments by double-digit margins”, per CNN
• “Focus On the Family” reported that 35 states had already passed DOMA laws prior to California voters passing Proposition 8 in a landslide victory, making that 36 states
• Voters in Maine and Washington reject their legislator’s initiatives to recognize gay marriage
• 40% of Canadian voters want to recognize gay marriage
• Seven states have laws that define marriage as a legal union between a man and woman, deny recognition of same-sex marriages solemnized in other states, and make same-sex marriage a violation of public policy. These states are Alabama, Arkansas, Georgia, Kentucky, Michigan, Pennsylvania, and Missouri
• Six states define marriage as a union between a man and woman and deny recognition of same-sex marriages solemnized in other states. These states are Alaska, Florida, Indiana, Nebraska, South Dakota, and West Virginia
• Four states deny recognition of same-sex marriages solemnized in other states and make such marriages a violation of public policy. These states are Idaho, Louisiana, Montana, and South Carolina
• Three states-Colorado, Kansas, and Tennessee-define marriage as a legal union between a man and women and make same-sex marriage a violation
Situational ethticians do not seem to see the web of uncertainty and wiggle roomed mayhem that they weave.
Is Joe guilty or not? Did he deserve what he got? How high is up? How low is down? Where's the middle?
The man did pay dearly with a lifetime of superior attaboys for one debatable oh schitte!
Paterno "retired" Sandusky in 1999. After that date, all the access to the football facilities, all the perks, all the partnerships with his Second Mile charity were a result of direct actions of the Penn State administration and the Board of Trustees, and had nothing to do with Paterno or the football program. Paterno got rid of him, the administration enabled him to remain a part of the PSU community.
My sense is that Paterno AND the administration knew far more about Sandusky's behavior than that created by the 2009 incident.
Generational influences? The concept of PTSD and treatment for childhood sexual abuse evolved in the 1980's. it was not an independent body of study, clinically speaking, until some of the pioneers began writing about the issue seriously... VanDerKolk, Kluft, and (later) Judith Lewis Herman.......
That said, it remains a mystery to me, generational aspects notwithstanding, why there should be such resistance to calling showering naked with a minor what it is... abusive.
Unfortunately, Joe Paterno wasn't the real victim here. His departure can be seen as collateral damage.
http://law.onecle.com/pennsylvania/domestic-relations/00.063.011.000.html
23 Pa. Cons. Stat. § 6311
Chapter Heading. The heading of Subchapter B was amended
December 16, 1994, P.L.1292, No.151, effective July 1, 1995.
§ 6311. Persons required to report suspected child abuse.
(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.
McGarity fulfilled his obligation to report to a "Superior". Thus the obligation rested on Paterno to inform the authorities.
HOWEVER, IT IS SOCIALLY REPUGNANT THAT HE COULD KNOW OR HAVE KNOWLEDGE OF THE SEXUAL ABUSE OF A CHILD AND DO NOTHING ABOUT IT.
A LEGAL ISSUE NO, A MORAL ISSUE, YES!
http://law.onecle.com/pennsylvania/domestic-relations/00.063.011.000.html
23 Pa. Cons. Stat. § 6311
Chapter Heading. The heading of Subchapter B was amended
December 16, 1994, P.L.1292, No.151, effective July 1, 1995.
§ 6311. Persons required to report suspected child abuse.
(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.
http://deadspin.com/5862257/how-grand-juries-in-pennsylvania-make-it-impossible-for-jerry-sandusky-to-get-a-fair-trial?tag=penn-state-scandal
Joe Paterno was tried, convicted, and lynched by the media and then the university based on two lines of a GJ report that is not a transcript but a prosecutor's summary of findings. The has been contemptible in their coverage. A casual observer would be led to believe that JoePa personally hand picked victims and then held them down for Sandusky. Sports Ilustrated devoted a cover to the story.
http://twitpic.com/7eyrsl
No mention of Sandusky. Just an indictment of Paterno and the university, once again, based on a GJ report that is not a transcript but a prosecutor's summary.
Yes, Sandusky appears to be the most egregious of predators. If guilty, he deserves the maximum penalty allowable. JoePa has already been convicted and punished. What he knew, when he knew it, and what he did about it should not be based on the media's interpretation of two lines in a GJ report. Hopefully all the facts will eventually find the light of day. If JoePa is guilty of coverup, he deserves his fate, but I'm surprised
that a certain studio is not registering seismic activity from all the knee jerking and tongue wagging courting inside its walls.
as for how paterno was treated...facts have come out that he may very well known about sandusky's predilections long before the incident in question (ergo, sandusky retiring in 99)
come on dersh...you are better than this
I think as a society we have a duty to protect those who cannot protect themselves. Here was a young boy being raped and no one thought to protect him. Check on him. Worry about him. Paterno made a choice - whether it was conscious or unconscious - that he didn't owe it to the child to protect him. He was in a position of power. He was not an underling. In my opinion, he had a moral duty to help that child and to help prevent any other child from being in a similar situation. Had he done the right thing, the morally right thing, he may have been able to prevent even more children from being abused. And for this decision, I do believe losing his position is correct.
When you have that much power within an institution, you should use it wisely. He chose the institution over this boy. He chose a former colleague over this boy. He chose football over this boy.
And believe me he would have made a different choice if it affected him more directly - like it was his
Would you be singing that tune if it was your son?
Imagine the following HYPOTHETICAL conversation at Paterno's house with McQueary:
MM: "Coach Paterno, sorry to bother you at home but I have something important to that you need to know about... I was at the locker room last night and I saw Coach Sandusky there...with a kid..."
JP: (cutting off MM): "Was it one of my players?"
MM: "No."
JP: "Good. So what's the problem."
MM: I saw Coach Sandusky doing something in the shower...something inappropriate."
JP (cutting off MM): "I got rid of that S.O.B. two years ago. He doesn't work for me. Why are you talking to me about Sandusky?"
MM: "Well, I thought you needed to hear about it"
JP: "I think I've heard all I need to hear. You think you saw something happen with a kid who is not one of my players and a former coach who does not work for me anymore. Right? Go talk to Curley. He's the Athletic Director."
Nearly 50 years of practicing plausible deniability resulted in abject moral failure for Joe Paterno and that is the reason he got fired.
1) he was fooled by Sandusky
2) he didn't know anything about the 1998 incident
3) he followed university protocol in handling the situation in 2002
4) he didn't know the serious nature of the alleged shower incident
5) he wished he had done more
I believe Paterno to be stating the truth in his official statement. But I can't accept that for a person of Paterno's stature this is an acceptable way to behave, to live in a bubble of oblivion.
Try to come up with some other plausible scenario where Paterno could be so clueless. McQueary went to his house and told him about the 2002 incident. How else could Paterno or McQueary not be flat out lying?
And other than using the words "imagine" and "hypothetical" (in all caps) to preface my made up, hypothical, fictitious, facetious, sarcastic, fairy tale conversation, I don't know how else to make the point that this is a FICTIONAL account.