What If the Molestation Travesty at Penn State Happened at ASU?

What if the Molestation Travesty at Penn State Happened at ASU: Would Arizona’s Mandatory Reporting Statute Have Made a Difference?

Jerry Sandusky, the accused child rapist and ex-Penn State Assistant Coach, will never again be known as Joe Paterno’s defensive guru. That’s easy to understand. The more difficult aspect of the case surrounds who knew what and who had a responsibility to report what they knew.

The grand jury report states that Coach Mike McQueary, who was a graduate assistant in 2002 and who is currently the wide receiver coach and the recruiting coordinator at Penn State, testified that he witnessed Sandusky sodomizing a child in Penn State’s locker room in March 2002. The report goes on to state that McQueary, after seeing the horrendous act, contacted his father. After discussing what Mike saw, the McQuearys decided that they needed to tell McQueary’s boss, head coach Joe Paterno. Mike McQueary did so the following day.

Paterno, the report says, waited an entire day to relay McQueary’s story to Paterno’s “immediate supervisor,” Tim Curley, the Penn State Athletic Director, an ex-Penn State and Paterno-coached football player. Curley waited a week and a half before calling a meeting, which included McQueary, Vice President Gary Schultz, and himself. McQueary relayed the atrocious story to Curley and Schultz, and about two weeks later, Curley told McQueary that Penn State had taken Sandusky’s keys to the locker room and that Sandusky’s charity for underprivileged boys, The Second Mile, had been notified.

As part of his job at Penn State, Vice President Schultz was assigned to oversee the University Police. Yet Schultz testified that he only reported the incident to Penn State President Graham Spanier (his immediate superior) and The Second Mile, never to the University Police or any law enforcement or social services agency. From start to finish, McQueary’s report was “resolved” by Penn State in about a month.

The McQuearys took a basic up-the-chain-of-command approach. Paterno and his superiors did the same. There are allegations that what McQueary told Paterno was downplayed as the story rose through the ranks.

The remaining questions are: Were McQueary’s, Paterno’s, Curley’s, and Schultz’s actions enough? Did any of them need to follow up with their respective superior? What legal obligations did these men have to the victims?

The grand jury directly addresses the violation of Pennsylvania’s mandatory reporting statute, 23 Pa C.S. § 6311, in its report. The statute states that a person who suspects child abuse or neglect in the course of his or her employment (including, but not limited to, a public or private school) shall report to the “person in charge” of the institution. That person is then charged with making the report. The grand jury found that Schultz and Curley violated the statute and should be held to answer (they were also charged with making a materially false statement while under oath). The report does not mention Paterno and McQueary violating this statute.

If you read the entire grand jury report, you will see that Schultz tries to shirk his responsibility by saying he was never told what McQueary saw amounted to rape. Rather, Schultz testifies that what he was told wasn’t that serious and he never felt a crime occurred. McQueary’s testimony goes directly against that, saying that he explained what he saw in detail to Paterno, Curley, and Schultz. Either way, if Schultz reasonably believed that Sandusky was acting inappropriately with children, he should have reported same to the police or CPS.

The Pennsylvania statute is quite different from Arizona’s mandatory reporting statute. In Arizona, A.R.S. §13-3620 controls such a situation. Specifically, “[a]ny person who reasonably believes that a minor is or has been the victim of physical injury, abuse, [or] neglect…shall immediately report or cause reports to be made of this information to a peace officer or to child protective services [CPS] in the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.” Subsection (A)(4) of the statute defines “person” to include “school personnel”. Therefore, in my opinion, all four of the men above would be in violation of Arizona law if this story went down at Arizona State University or the University of Arizona.

Further, the fact that McQueary told his supervisor, Paterno, and Paterno told his supervisor, Curley, and so on, does not fulfill their obligation of mandatory reporting under Arizona law. All of these men, whether they saw the rape like McQueary or whether they heard a watered-down version like Schultz, were obligated to make a report (or cause the report to be made) to a peace officer if they “reasonably believed” the rape occurred. That is, if McQueary told his superior and the superior never reported the suspected abuse, McQueary would be held responsible for not making the report (as would his superior, Paterno, in this case).

A distinction could be made if McQueary had been a volunteer. The first question, under Arizona law, would be to ask whether McQueary was responsible for the care of children. If a volunteer carries this responsibility, they have a duty to report suspected abuse to a police officer or CPS. In this case, it could be argued that McQueary was responsible for the care of children. That is, if there were 17 year old football players at Penn State or if facts showed McQueary ran a football camp for teenage boys, McQueary could be held to answer.

Brad TenBrook is an attorney at Gregg R. Woodnick PLLC. While Brad is a committed Ohio State fan (and proud graduate), his opinion here has nothing to do with football.

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