Joe Paterno and the Sexual-Abuse Scandal

Stephen Kershnar
Blaming Joe Paterno
Dunkirk-Fredonia Observer
November 14, 2011

A sexual abuse scandal has brought down legendary Pennsylvania State University football coach Joe Paterno. At issue is whether he is guilty of a crime or a moral failure. Let me begin by stating the obvious: sexually assaulting children is extremely harmful, horribly wrong, highly illegal, and should not be tolerated.

Here are the facts as set out by Wikipedia, The Washington Post, ESPN, Sports Illustrated, and other news sources. For 31 years, Jerry Sandusky served as an assistant coach under head coach Paterno from 1969 to 1999. For 23 of those years, he was the team’s defensive coordinator (lead defensive coach). In 1977, he founded a charity (The Second Mile) designed to help troubled boys at State College, Pennsylvania, where Penn State is located. Roughly two weeks ago (November 5, 2011), Sandusky was arrested and charged with 40 criminal counts of sex crimes against boys. This includes seven counts of sexual assault (involuntary deviant sexual intercourse), seven counts of indecent assault, eight counts of corruption of minors, and so on.

The evidence for these alleged crimes is not new. In 2000, a janitor noticed Sandusky in a Penn State shower performing oral sex on a boy. He reported what he saw to his supervisor, but the latter did not pass this information on to school officials or the police. In 2010, assistant coach Mike McQueary saw Sandusky sodomizing a ten-year-old boy in the shower. He did not intervene, but later reported the incident to Paterno. The next day Paterno relayed this information to Athletic Director Tim Curley. Curley and Penn State Senior Vice President Gary Schultz (the administrator in charge of the police) ordered Sandusky not to bring any more children from Second Mile to the football building. University President Graham Spanier approved this order. None of the three appear to have taken further action. Sandusky was allowed to operate a summer camp on a Penn State satellite campus (Behrend near Eric), where he had daily contact with boys ages 9 to 18.

Curley and Schultz appeared before a grand jury. They testified that McQueary didn’t tell them of sexual activity. They were then charged with perjury (lying about McQueary) and failure to report suspected child abuse to the police. Penn State placed Curley on administrative leave and Schultz resigned. The Board of Trustees gave Spanier an ultimatum: resign or be fired. He resigned. Paterno offered to retire, but the Board refused and fired him.

One issue is whether Paterno committed a crime. University of Mississippi law professor Michael McCann argues that while possible charges against him include obstruction of justice, perjury, and failure to report suspected child abuse, he is probably not legally guilty of these crimes. Legally, a person obstructs justice when he conceals evidence or when he delays or frustrates a criminal investigation. Paterno probably didn’t do this because the day after McQueary spoke to him, he reported a version of what he heard to his boss, Tim Curley. Under oath, Paterno testified that McQueary told him that Sandusky was engaged in a general act (“doing something of a sexual nature”) to a boy, whereas McQueary testified he told Paterno that Sandusky was engaged in anal intercourse, but it is doubtful this difference, and how it affected what he told Curley, obstructs justice. Also, there is a time limit on pursuing this crime and it is about to expire.

Paterno is likely not legally guilty of perjury. The difference in Paterno’s and McQueary’s testimony is not clearly lying (intentional misrepresentation). Paterno might have failed to remember exactly what he was told (most of us can’t remember exactly what we were told and Paterno is 84 years old). Also, convicting Paterno would require a prosecutor to show that McQueary, rather than Paterno, did not misremember what he said or lie. Given his failure to intervene, McQueary might be seen as having a motive to misstate what he told Paterno.

Nor is Paterno likely legally guilty of failing to report sexual abuse. The Pennsylvania Child Protective Services Law requires teachers and school administrators to report alleged abuse to child protective services, police, or a supervisor. Paterno did this. In addition, it is doubtful that the law applies to him.

The moral issue is murkier. Was Paterno blameworthy for failing to do more? First, Paterno promptly turned the information over to his boss (Curley). He likely knew or reasonably expected that the information would be given to the administrator who oversaw the Penn State police force (Schultz). It is unclear that he knew or should have known that these two would have dropped the ball by not ordering an investigation. Nor did Paterno have a clear duty to monitor or oversee their actions.

By analogy, consider a lieutenant in the army who gets a report of a sergeant abusing recruits. He promptly reports this to his commanding officer (a captain) whom he trusts and who tells him he will take it from there. It is not clear that the lieutenant should second-guess the captain’s judgment about what happened and how to proceed. Nor is it clear the lieutenant should insist on meeting with the military police or the commanding officer’s boss (for example, a major) if the commanding officer were to disbelieve the report.

Second, even if he should have known, negligence is not the sort of moral failure that makes one a monster. Consider a ship pilot who daydreams and doesn’t notice himself doing so. As a result, he fails to steer his ship away from the rocks, which results in it sinking and a passenger drowning. Such an individual is flawed, but not terribly blameworthy.

Third, people often confuse moral and legal obligations. This is commonly seen in police officers and judges who enforce obviously unjust laws with a clear conscience. Consider, for example, officers who aggressively enforced laws that criminalized homosexuality in the 60’s and 70’s and perhaps, also, those who enforced the Rockefeller anti-drug laws. It is unclear whether Paterno made this mistake, but it is a common one.

Fourth, it is very hard to turn in beloved family and friends. Most mothers would have a hard time turning in a son, even if they had evidence that he committed a date rape and was a threat to do it again in the future. This might be due to self-deception or the sheer strength of her love. A similar thing is true of soldiers who witness wartime atrocities by brothers in arms. Consider, for example, soldiers who observed the My Lai massacre and did nothing to stop it. My guess is that after 31 years of working together under stressful conditions, Paterno was close to Sandusky.

Fifth, there is an underlying philosophical issue as to whether people have a moral duty to save strangers. For example, many rich and middle class people fail to donate money to starving children in the third world and don’t see themselves as bad people. Whether there is such a duty and whether it applied to Paterno is a discussion for another day.

None of this establishes that Paterno acted rightly (or wrongly). What it likely establishes is that he is not a moral cretin, gross moral failure, disgusting human being, etc. It is a separate matter whether these labels fit Spanier, Schultz, and Curley. They obviously fit Sandusky.