by Tim Koch
I grew up in Pennsylvania and although I have not lived there in over two decades, it is still my emotional home. Since my childhood, Penn State University (PSU) has been “my” college football team and Joe Paterno “my” coach. On Wednesday night, 9 November 2011, the Trustees of PSU fired the president of the University and Paterno, in the wake of a reported series of horrifying rapes of already at-risk children by a one-time football coach from PSU—committed over a period of years, well beyond the time that these outrages had been reported to principals involved with the football program and PSU Administration. Press coverage is at a fever pitch, and these events will be analyzed from virtually every angle imaginable, and for months to come. My concern above all is with these raped children, and my hope and prayer is that they not be further victimized (even by their own family members) in the time ahead.
I have two points that I believe are both worth addressing and so far have not received much attention. Upfront, I recognize that these two points are not made in a vacuum and are not meant to eclipse other crucial matters, including the perpetrator’s primary responsibility for these heinous acts and the failure by the graduate assistant who actually witnessed abuse to physically intervene.
The first matter is something I have to ponder: time and again, radio and television talking heads have been pointing out that although Joe Paterno met his legal duty in reporting that “something” was going on, nevertheless Paterno failed his moral duty to stop the abuse. Wow. To think that the gap between what is legal and what is moral is the space in which children were raped. Breathe deep. Seriously.
Second, I believe it is important to build out from something that Law Professor Zachary Kramer addresses in his recent Law Journal for Social Justice article, “The Details of Discrimination.” Kramer takes the Supreme Court to task for its choice not to recite the facts of repeated acts of despicable sexual violence in its opinion in Oncale v. Sundowner Offshore Services. Instead, a unanimous Court in a ruling written by Justice Scalia maintained that “in the interest of both brevity and dignity we shall describe them only generally.” Kramer asserts that this failure “was a missed opportunity of the highest order.” Specifically, that opportunity was to “document discriminatory behavior,” inasmuch as discriminatory behavior cannot be eradicated if people do not know what it looks like and grasp what it actually entails.
In the Penn State debacle, early reports suggest that as one man who observed an incident of child rape occurring in the showers told another man who told another man who related it to yet another man, the details conveyed were brief and described only generally. “Horse play.” “Inappropriate touching.” These are simply not acceptable descriptors for an adult sodomizing a child. To this moment, Paterno insists that he was given a vague report which he dutifully passed on to his Athletic Director, as required by law. By these individuals not speaking frankly and thoroughly about this sexual abuse, the opportunity missed was not merely educational: it was the opportunity to stop destructive, criminal assault on children.
Law Journal for Social Justice 
From a young age, we are taught to use euphemisms to gloss over horrible details. It is a perfectly acceptable and understandable response when a pet’s not coming home or a family member slips away. There is no need to think about painful details, and we want to move on. The problem is when those details are vital to understand, and our acculturation does not allow us to share them. It is simply unacceptable for a court of a criminal report to not include every detail. We cannot prosecute someone based on “horseplay” or even “assault.” The jury needs to understand what truly happened, not the euphemisms we use to gloss over the details in normal life.
As far as we know, Joe Paterno did not rape anyone. Joe Paterno did not molest any kids under his charge. Joe Paterno did not lay a hand on any kids. Joe Paterno only fault here is looking the other way. Not to go all Sally Struthers on you all – but what kind of world do we live in when it is ok to look the other way when children are being raped under your care? How many molested kids is enough before you use your power to do something? Do you have an obligation to start helping when its five kids, ten kids? How about twenty? Twenty lives ruined, twenty families that are now devastated? I don’t really give a damn, personally, about legal duty and mandated reporting, I don’t think anyone should when it comes to a pedophile sexually assaulting children under your care. This is not a legal duty matter, it’s a human one. And yes, Joe Paterno should be fired, if it was up to me I would fire many many other adults that knew about this or should have known. The time has come for a higher standard when it comes to protecting our most vulnerable citizens. There no other way to look at it.
Most states have reporting mandates that are much, much stricter for those working with children regularly. For instance, as a teacher in AZ, if you suspect any abuse is happening to a student (sexual or other), you are required to immediately report it formally (through a written report), and the process of writing the report and interviewing with law enforcement may take as long as eight hours. The school districts take this requirement very seriously.
I wonder if a public employee at a university does not also fall under the umbrella of the reporting mandate (as do teachers, doctors, law enforcement officers, and others). Here is PA’s statute: Cons. Stat. Tit. 23, § 6311, http://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.processSearch
It seems, at the very least, he was a “child care provider” in this capacity, and was therefore legally required to not just vaguely tell a superior what he overheard, but to file a written report with the authorities. That he apparently failed to do so exposes him to criminal liability.
Amanda, Professor Buel argued the exact same thing yesterday. When I worked for a public Arizona university as an advisor, I was considered a mandatory reporter. In fact, all employees (even the graduate assistants) were considered mandatory reporters. I’m not sure if the university was interpreting Arizona law correctly, or had decided to require all employees to abide by the requirements to simplify training. In any case, I think it’s a valid question to ask. Somehow, we have all just assumed that he has not violated any statute, but I’m not sure that is a correct assumption.
I get the feeling that Penn State’s PR line has consistently been, “He complied with all the legal requirements,” as though if they say it enough times, no one will question it (since every article I’ve seen has had the exact same sentence to that effect – as though copied directly from Penn State’s press release). I hope that criminal charges are at least investigated. A clear message needs to be sent that failing to report is a very serious crime – or the purpose of the reporting statutes is moot.
I sort of doubt the PR line is going to make that much of a difference anyway. The families are going to sue Penn State, and they’ll settle for big undisclosed awards, regardless of whether everyone complied with the technical letter of the law or not. I don’t think a jury’s going to care that much about the technical letter of the law when a big name, rich celebrity’s silence got 8 little boy’s raped, and Penn State’s lawyers are smart enough to know that. I think the PR line has more to do with the school’s image than avoiding liability.