Posted: Wednesday November 9, 2011 11:50AM ; Updated: Thursday November 10, 2011 1:29AM
Michael McCann
Michael McCann>SPORTS LAW

Did Joe Paterno break the law?

Story Highlights

Paterno hasn't been charged, but he may have violated law by not going to police

Paterno's statements to grand jury will come under scrutiny as case goes to trial

Even if Paterno isn't criminally charged, he could be found negligent in civil trial

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PSU trustees fire Paterno, president Spanier
Source:SI
Penn State's trustees fired coach Joe Paterno and president Graham Spanier amid a child sex abuse scandal involving former assistant coach Jerry Sandusky.

While Pennsylvania Attorney General Linda Kelly says that her office won't file charges against Joe Paterno for not reporting the alleged child sexual abuse by former Penn State defensive coordinator Jerry Sandusky, the 84-year-old coach could eventually face criminal charges for perjury, obstruction of justice and violating the state's Child Protective Services Law. Paterno could also become a defendant in civil lawsuits filed by Sandusky's alleged victims. Those lawsuits could allege that Paterno negligently failed to prevent a third party with whom he had a supervisory relationship (Sandusky) from committing abuse.

Perjury and Obstruction of Justice

Under Pennsylvania law, as in other jurisdictions, perjury refers to knowingly lying while under oath. Obstruction of justice describes interference with the administration of justice, such as by concealing evidence or delaying or frustrating a criminal investigation. While Paterno has thus far escaped these criminal charges, his statements and behavior suggest that he remains vulnerable to them. That is particularly evident when considering troubling inconsistencies between Paterno's testimony to the grand jury that investigated Sandusky and the testimony of Penn State assistant Mike McQueary.

These inconsistencies related to Paterno's and McQueary's statements about "Victim 2" in the grand jury's statement of facts. According to the grand jury's findings of fact, McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno.

After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy.

To be sure, the phrase "doing something of a sexual nature" technically includes forcibly subjecting a child to anal intercourse, meaning Paterno may have been more evasive than untruthful. Then again, Paterno's hazy choice of words could encompass a band of sexual acts, from raping a 10-year-old boy to inappropriately touching or patting a child, that ranges too widely in heinousness to be deemed consistent with McQueary's allegedly more specific statements. The phrase unnecessarily imports ambiguity and generality where none had existed, and dubiously invites the listener -- Curley -- to assign a lack of severity to the incident. From that lens, Paterno appears to have told Curley a different account than what McQueary had told him.

The inconsistent testimonies raise several questions:

• Did McQueary lie to the grand jury about what he saw or told Paterno?

• Did Paterno lie to the grand jury about what McQueary had told him?

• If neither witness lied, did Paterno intentionally misrepresent what McQueary had told him in order to discourage Curley from aggressively investigating the matter or alerting the police? If so, did Paterno conceal the severity of the evidence or delay the onset of a criminal investigation to such an extent that he obstructed justice?

It should be reiterated that Paterno is at least publicly regarded by law enforcement authorities as a witness, rather than as a possible defendant; if authorities thought his actions clearly violated the law, he would have already been charged, just like Curley and former Penn State senior vice president of business and finance Gary Schultz. For purposes of obstruction of justice, Paterno also benefits from Pennsylvania's statute of limitations, which prevents authorities from charging individuals with crimes after a period of years. Although the length of years can be extended or "tolled" under certain circumstances, authorities would likely encounter difficulty charging Paterno nearly 10 years after the 2002 incident. Statute of limitations would not help Paterno deflect perjury charges, however, as his grand jury testimony occurred within the last year, thereby clearly falling within the applicable five-year statute of limitations.

Nonetheless, the potential exists for Paterno to face both perjury and obstruction of justice charges, especially as the investigation intensifies and as other witnesses, as well as defendants and potential defendants, talk. Also, should Curley and Schultz and, if eventually charged, university president Graham Spanier seek plea deals, they may be willing to implicate Paterno in exchange for more favorable treatment. Paterno, conversely, could seek the same type of arrangement with prosecutors, implicating Curley, Schultz et al. in exchange for avoiding prosecution. It is thus very possible that Penn State officials who worked closely together may wind up in a "prisoner's dilemma" where they will have an incentive to cut a deal and implicate their former colleagues before those former colleagues cut a deal and implicate them.

Child Protective Services Law

Under Pennsylvania's Child Protective Services Law, certain individuals, including teachers and school administrators, have a legal obligation to immediately report suspected child abuse to child protective services or law enforcement, or to a "person in charge" (supervisor), who must then report the alleged abuse to the authorities. The reporting must be honest. When in writing, the reporting must also include known information about the nature and extent of the suspected abuse, along with other material details.

Within one day of learning from McQueary of the alleged abuse, Paterno notified Curley, his boss. By doing so, Paterno satisfied an obligation to immediately report to a person in charge.

On the other hand, one could read the Child Protective Services Law to classify Paterno as himself a person in charge of McQueary and as one who had a subsequent obligation to report to the authorities. Still, Curley's status as Paterno's boss likely insulates Paterno from liability, at least for failing to notify child protective services or law enforcement.

Paterno may have nonetheless violated the Child Protective Services Law by failing to tell Curley the specific story as told by McQueary and by failing to provide known information about the nature and extent of the suspected abuse. As discussed above, if McQueary's testimony is true, Paterno appeared to downplay the severity of the incident while speaking with Curley. His portrayal seemed incomplete, if not outright disingenuous. Also, while Paterno made his initial report of the suspected child abuse to Curley by phone, any written communications would have required the known information.

In Paterno's defense, law enforcement authorities have indicated that, in their current view, while Paterno appeared to do the bare minimum, he technically satisfied his legal obligations under the Child Protective Services Law. Whether that viewpoint proves sustainable could depend on the development of new and more incriminating facts and public pressure.

Negligence

Although Sandusky retired from coaching Penn State's football team in 1999, he remained connected to the university in a professional capacity. Until this past weekend, in fact, he was listed on the school's website as "assistant professor emeritus of physical education." He also enjoyed access to the football team's gym and other facilities, as well as use of a psu.edu e-mail account.

Sandusky's alleged victims could file lawsuits against Penn State for negligently failing to protect them from Sandusky. Under tort law, employers have a duty to prevent their employees from committing crimes or civil harms on others while their employees are engaged in their employment. Even after Sandusky retired, Penn State, by allowing him on campus despite questions about his treatment of children, could have breached a duty of care to children whom Sandusky allegedly abused. Penn State, for its part, could maintain that it took preventative steps, including prohibiting Sandusky from bringing children to campus and taking away his keys to university facilities. It could also portray Sandusky as no longer an employee but rather a retired individual who was permitted to use a very limited range of campus resources.

The alleged victims could also sue Paterno on similar grounds. While Paterno was not technically Sandusky's "boss" after 1999, it seems plausible to assume that Sandusky -- still actively involved with the team, albeit in an informal capacity -- continued to view himself as Paterno's subordinate. Victims of Sandusky could allege that Paterno negligently failed to protect them or to adequately warn authorities of Sandusky's alleged abuse of children.

Should tort lawsuits be filed, expect Penn State, Paterno and other targeted Penn State officials (e.g., Curley, Schultz and Spanier) to attempt to settle the claims before they go to trial. At a minimum, such trials would paint the university and its top officials as immoral and irresponsible, and as embracing a "hear no evil, see no evil" approach to what appears to be the actions of a sadistic man.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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