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November 8, 2011

"Child-Abuse Reporting Law Is Challenge to Prosecutors"

The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program.  Here are excerpts:

Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.

Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus.  Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse.  The two men have also been accused of lying to a grand jury about what they knew of the allegations.  They have denied the charges. Mr. Sandusky has denied any wrongdoing.

It is unclear if the officials were obligated to report the allegations in the first place, legal experts said.  Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....

Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail.  Under sentencing guidelines, they would likely face one to 12 months....  The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine.  Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.

"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.

November 8, 2011 at 05:49 PM | Permalink

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Comments

Does anyone know when this PA Law was finally approved? We have something similar in my becoming fascist state but it became law in 2003-2004. My inquiry is if we believe something may have occurred 20 years ago, are we obligated to disclose it under penalty of prosecution, even though all we may have is hearsay?

Posted by: albeed | Nov 8, 2011 10:51:40 PM

and this, ladies and gentlemen is how bad laws get passed.

Sensational case with lots of media coverage - check

Feeling that someone needs to be punished - check

Won't somebody protect the children - check

People are outraged - check

We in the state legislature need to do something about this whether there is actually a problem or not- check

But my questions are: how much of an issue has there been outside of this case of having school administrators failing to report abuse?

Aren't almost all suspected child abuse cases reported even in the absence of mandatory reporting statutes? Won't they continue to be simply because people do not want to see children get hurt?

And um, wasn't one of the relevations of this case that the police and DA office in the area did investigate one of the allegations and cover it up? How does mandatory reporting statutes keep the police and DA from not protecting a highly profitable operation in the local area at the expense of children?

Posted by: virginia | Nov 9, 2011 6:34:57 AM

One is supposed to report emotional abuse, defined by the racist feminist lawyer as a derogatory statement. So a mother tells a child to "stop acting like a fool" in the doctor's office. That is reportable, and sets off government make work home investigation. The child abuse law targets the Southern child rearing methods of the isolated black communities that maintained their American South culture. They are far more likely to be investigated and to have a child removed than whites are.

These workers have far more powers than the police. They do not need a judge's order with probable cause to enter the home. They do not need any arrest warrant to remove a screaming begging child against the will of the parent. If you refuse their decisions, a man with a gun will enforce the arbitrary, anti-family, subjective decisions of these feminists, and their male running dogs, such as Representative Todd Stephens.

They are out to destroy the American family, especially what remains of the black family. Why? The substitute for the competing authority of the family is child rearing by big government, a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. Because the main motivation is rent seeking, there should be a presumption of their acting in bad faith. Every opportunity should be taken to sue them, as individuals. Even if the suit is dismissed, they are likely to lose their jobs for generating the expense of the defense. As they show no quarter toward the family, so no quarter need be shown them. They are the KKK Night Riders of 2011.

Posted by: Supremacy Claus | Nov 9, 2011 6:53:59 AM

Isn't it time to end all self-dealt immunities, including that of the legislature, a front organization of the criminal cult enterprise that is the lawyer profession? If a legislature passes an unproven law, it is below standards of due care for that body. Victims of its carelessness should be able to get compensated from the personal funds of the members. Let these worthless rent seekers buy insurance as productive parties have to.

Posted by: Supremacy Claus | Nov 9, 2011 7:05:54 AM

Virginia stated: "But my questions are: how much of an issue has there been outside of this case of having school administrators failing to report abuse?"

I am sure not much. Although this is a huge issue in public schools, remember that this case involves a university. There are not too many minors running around a college campus unsupervised.

She stated: "Aren't almost all suspected child abuse cases reported even in the absence of mandatory reporting statutes? Won't they continue to be simply because people do not want to see children get hurt?"

Unfortunately, no. One of the reasons public schools adopted the mandatory reporting laws (I used to be a mandatory reporter) is that public school employees need to be trained to recognize signs of abuse. Most people do not walk in on the event like the P-State grad student, they have to connect dots and make assumptions. This leads to my second point. Many people are not willing to report something they are not 100% sure of because they often know the perpetrator, which can be mighty awkward if you are wrong.

As far as this particular case, I do not know much about how the statute is written (other than what Prof B. provided). However, I would say that this part, "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse...." tells me that the university officials are not liable. It appears a stretch to me that a university employee comes in contact with children very often "in the course of their employment." I know that I do not and when I received my job at the university they never asked if I had taken the mandatory reporter training.

Posted by: TarlsQtr | Nov 9, 2011 9:33:04 AM

"Failure to report" as a crime, presents problems by way of over-reporting. If the reporter has immunity, which is probably the case in most jurisdictions, there is no risk to the reporter in making a false report. Not every bruise, even in "sensitive" areas, is abuse. If someone subject to a mandatory reporting requirement has a doubt, it is probably safer for the reporter just to report it and let the parent or other party try to salvage his/her life.

Posted by: Stanley Feldman | Nov 9, 2011 10:18:50 AM

I think the key problem with these statutes is that the violate a citizen's right NOT to speak. They are no different than loyalty oaths held unconstitutional under West Virginia v. Barnette. There has been a discussion among the more intellectually inclined posters to this site about the "right not to" in this thread:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/11/the-right-not-to-keep-or-bear-arms.html#comments

and discussing this paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926235

But the very term used to described such laws "mandatory reporting" reveals their underlying malice. They are government compelled speech.

Posted by: Daniel | Nov 9, 2011 2:12:38 PM

But isn't it like mandatory insurance if you drive a car? No one is forcing you to drive just like no one is forcing people to enter a profession that requires you to be a mandatory reporter. Thus, the government is not compelling speech.

Posted by: TarlsQtr | Nov 9, 2011 5:52:34 PM

@tarlsqtr

It's been long established in the law that driving is a privileged not a right and whatever "freedom of speech" might mean it can't mean anything less than a right, so the analogy is inapposite.

The issue about industry regulation is an interesting one but it's also off point because these statutes are not constructed as industry regulations but as general purpose statutes. If the law said that in order to be a doctor, for example, a person has to agree to be a mandatory reporter that would an entirely different law than the one at issue.

Posted by: Daniel | Nov 9, 2011 7:18:35 PM

I find it a little disconcerting that a Penn State graduate student was alleged to have witnessed Sandusky performing anal sex on a 10-year-old boy in a shower at Lasch, and instead of reporting it to PSU police or other local authorities, he chose to call his father.

Posted by: Huh? | Nov 10, 2011 1:49:25 AM

@huh?

The whole situation is quite bizarre. I'm still taking in how a single graduate student who allegedly saw something late at night in a shower and who presented his information in bits and pieces over several weeks to several different officials could in one fell swoop bring down the most famous coach in college football, two senior vice presidents, and one of the most well-respected university presidents in the country. That's quite a haul for one little old hunting trip. I can only conclude that either (a) there is much more to this story than what we are being told now and it's horrible or (b) that this is a political takedown of the first rank avenging some underlying vendetta and I hope that the university has a really large insurance policy.

I'm personally going with (b) simply because history teaches us that most large scale child sex abuse panics are ultimately discredited.

Posted by: Daniel | Nov 10, 2011 12:01:20 PM

i'm with you here daniel. Of course considering the head coach involved i doubt we will ever see the compltley justified 100 million dollar lawsuit for unlawful termination!

Posted by: rodsmith | Nov 10, 2011 12:50:47 PM

TarIsQtr:
When I was 16 years old I toured Penn State's Main Campus (State College) with a number of other Sophs and Juniors as part of a "College Caravan".
We 15-17yr olds met with many college officials who should be considered "mandatory reporters." One would suspect that such employees receive annual or entry-training on their status as reporters.

I don't know about the AD and a VP for "business and finance", nevertheless. If I were a football recruit, I might have met with that program's adult personnel.

Posted by: adamakis | Nov 10, 2011 1:13:44 PM

@ Daniel

All I know is what I read in the grand jury presentment. Mike McQueary, the intern [and now an assistant coach] told two people, his father [first] and Paterno, and he did not divulge specifics to Paterno apparently. There was another person, a janitor I believe, who is alleged to have witnessed Sandusky performing oral sex on a boy. So the count is actually two, not a lone intern. McQueary and the other witness were in a position to stop what was happening, they didn't.

I don't see this as a political take down.

Posted by: Huh? | Nov 10, 2011 5:44:52 PM

This case shows

1) Sandusky should have been executed beofre age 18, saving likely hundreds of victims their suffering;

2) The Board are feminist male running dogs. I support bringing street justice to them by the student rioters. I urge Penn State alums to cut off all donations until the entire feminist male running dog Board has been replaced. Joe Paterno did nothing wrong.

Posted by: Supremacy Claus | Nov 11, 2011 9:10:54 AM

The idea that these individuals don't have an obligation to report the abuse of a minor just because they don't come into contact with children as a regular part of their job is morally repugnant.

Let's hope the perjury charges stick.

Posted by: Todd Nolan | Nov 11, 2011 12:22:57 PM

well todd i guess that means we can now start rounding up every one in america who knows an illegal alien.... after it's not against the law to know them. so what.

plus i'm still trying to figure out how someone in COLLEGE is still a child! wake up and smell the coffee!

Posted by: rodsmith | Nov 11, 2011 1:14:12 PM

Todd: The idea that these individuals don't have an obligation to report the abuse of a minor just because they don't come into contact with children as a regular part of their job is morally repugnant.

Actually, PA law requires that they [e.g. McQueary, Paterno] report any abuse allegations to their supervisor. Law also requires the supervisor [i.e. management] to report the allegations to police. That being said, I can't see how anyone could have walked away after witnessing an adult performing anal sex on a 10-year-old boy. There is no way I could have walked out of the building without the boy.

Posted by: Huh? | Nov 11, 2011 4:13:30 PM

The failure to report charges are without foundation. The incident happened in 2002. In 2006 the mandatory reporting laws in PA changed. Under the old law, in effect in 2002, the mandatory reporter did not have to report unless the child upon who the suspected abuse took place appeared before the reporter personally. That obviously did not happen. I'd love to know upon what theory the prosecutor thinks that the 2006 law applies to a 2002 act.

The lying to the grand jury change has more substance because the principles contradict each other as to what supposedly they were told by the witness. But this devolves into a credibility argument based upon differing recollections of what happened eight years ago. Difficult to see how that is going to amount to proof behind a reasonable doubt.

Finally, it's worth pointing out that the child who the graduate assistant supposedly witnessed being raped is unidentified. Maybe, just possibly, the reason the GA never stopped the rape is because it never happened.

Posted by: Daniel | Nov 11, 2011 5:09:45 PM

Daniel:

Thank you for providing a good response to my very first question on this thread. It seems that most others were just too angry to think rationally.

There goes that Damn Constitution again.

Posted by: albeed | Nov 11, 2011 6:24:25 PM

hmm

" I'd love to know upon what theory the prosecutor thinks that the 2006 law applies to a 2002 act."

just take a look at sex offender laws for your theory! once a child is mentioned ANYTHING is legal!

Posted by: rodsmith | Nov 12, 2011 1:34:20 PM

Daniel: "Under the old law, in effect in 2002, the mandatory reporter did not have to report unless the child upon who the suspected abuse took place appeared before the reporter personally."

If that's the case, why were Tim Curley and Gary Schultz charged with lying to the grand jury and FAILING TO REPORT the incidents to the proper authorities? The answer is that they were legally responsible for reporting any abuse allegations.

Posted by: Huh? | Nov 12, 2011 3:44:25 PM

Daniel: "Finally, it's worth pointing out that the child who the graduate assistant supposedly witnessed being raped is unidentified. Maybe, just possibly, the reason the GA never stopped the rape is because it never happened. "

What if the reason the 10-year-old is not known is he is unable to come forward? We don't know how something like that will effect everyone. Shawn Hornbeck was 11-years-old when he was kidnapped and he was sodomized for 4 years until he was found in early 2007 with Ben Ownby, another kidnapped youth. About 3 years later, Hornbeck did an interview where he said he does not dwell on it. For all intents and purposes, he turned out okay.

We don't know what happened with victim #2. While a teen he could have put a gun in his mouth, hung himself or overdosed on Prozac.

Posted by: Huh? | Nov 12, 2011 4:06:20 PM

I wonder what happend to the children in the McMartin Preschool case?

Posted by: JS | Nov 13, 2011 4:20:27 PM

Didn't take long. Senator Bob Menendez (D) is going to push his CARE Act [Child Abuse Responsibility and Enforcement Act] today. It requires states to create a law that must includes the following:

1. Obligation to report acts of child abuse
2. Must report to both police and social services agency of the state, and
3. Failure to report is 1 year in jail

States would be strong armed into passing the law - pass or be ineligible for 1.7 billion in social service block grants. Menendez said, "Don't worry about your job, worry about going to jail for failure to report."

Senator Bob Menendez is up for relection in 2012.

Posted by: Huh? | Nov 16, 2011 4:14:01 PM

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