Lessons Learned from Penn State Scandal: If You See Something, Say Something – MA Mandated Reporting

Now that former FBI Director Louis Freeh’s comprehensive report regarding who knew what and when at Penn State University about suspected child sexual abuse by convicted child-molester Jerry Sandusky has issued, it will be up to Pennsylvania authorities to determine if further criminal charges should issue against former President Graham Spanier, former Vice President Gary Schultz and Athletic Director Tim Curley. Curley and Schultz are already facing charges accusing them of failing to report abuse and perjury in connection with their related Grand Jury testimony; and, of course, former Nittany Lion Head Coach Joe Paterno is deceased. Depending on applicable statutes of limitation in Pennsylvania (Anywhere from 2 - 12 years, or up to the time the victim reaches age 50 if s/he was a minor under 18 – See 42 PA. CONS. STAT. § 5552), additional charges against the three administrators might include conspiracy, obstruction, and on a reach, possible aiding and abetting. As for the late Joe Paterno, his judgment and sanction will be up to the court of public opinion in terms of his legacy and reputation, the NCAA in terms of his record(s) and whether or not his Program will be allowed to continue, and up to the Trustees of Penn State with regard to how he will be remembered. (There is serious talk of removing his statue from in front of Beaver Stadium and possibly his name from the Paterno Library, which he and his wife helped raise nearly $14M to build, donating several million dollars themselves.)

There is no question that the inevitable payment of settlements of the multiple sex abuse civil suits will be just one piece of the over-whelming price PSU will ultimately pay for looking the other way. All of which begs the natural questions: what were PSU administrators required to do; (for those of us in the Commonwealth) who are mandated reporters in Massachusetts; what are the sanctions for failing to report; and are college administrators, coaches and professors mandated reports under M.G.L. Chapter 119 in Massachusetts just the way other "covered" persons should be? If not, are they soon likely to be?

Chapter 8 of the Freeh Report deals with the Federal and State child sexual abuse reporting requirements which PSU administrators were required, but ultimately failed, to fully ascribe to. The chief concerns detailed in the report deal with PSU’s inadequate compliance with the federal Clery Act which requires universities receiving federal funding "to collect crime statistic relating to designated crimes, including sexual offenses, occurring on University property, make timely warning of certain crimes that pose an ongoing threat to the community, and prepare an annual safety report and distribute it to the campus community." Further, the Clery Act requires "’Campus Security Authorities,’ including coaches and athletic directors, to report crimes to police." While the Freeh report concluded that President Spanier and Vice President Schultz may not have fallen within the definition of "Campus Security Authorities," Coach Paterno and Athletic Director Curley clearly did, and they were required to report at least the 2001Sandusky incident to University Police. Further, the report states that even if Spanier and Schultz weren’t obligated to report as Campus Security Authorities, they were obligated to enforce compliance with Act, i.e., to ensure Paterno and/or Curley had reported the incident.

As a Massachusetts criminal defense attorney who has defended several collegiate athletes and youth sport coaches, and more importantly, as a father of four former student athletes, it is important to understand what the reporting requirements are here in MA for those coaches and school administrators with whom we entrust our children’s safety and well-being. As with PSU, the Clery Act is applicable on the federal level. MA state requirements are governed by M.G.L. Ch. 119 § 51A. 51A basically requires any mandated reporter who has reasonable cause to believe a child is suffering physical or emotional injury resulting from 1) abuse (including sexual abuse) which causes harm or substantial risk of harm to the child’s health or welfare; 2) neglect (including malnutrition); or 3) physical dependence upon an addictive drug at birth to make a report to the Department of Children and Families (DCF), the designated officer or agent of an institution, school or facility responsible for making such reports to DCF, and/or local law enforcement. Mandated reporters include a long list of personnel enumerated under M.G.L. Ch. 119 § 21, and definitely includes school administrators, teachers and coaches at both public and private schools. (Although section 21 does not specifically list colleges and universities and their administrators - perhaps the Legislature merely presumed such language unnecessary given that people enrolled are typically over 18, or maybe the fact that minors may be on campus for other events should still be specifically delineated in future versions - nonetheless, the statute appears to be applicable to colleges/universities and certain personnel given the following language included in section 21 concerning who is a mandated reporter: a person "(v) in charge of a medical or other public or private institution, school or facility or that person’s designated agent.."

The penalties for merely failing to report can result in a fine of up to $1,000. However, if the failure to report child abuse or neglect that resulted in serious bodily injury to, or death of, a child is done willfully, as it appears may have been the case at PSU, then the mandated reporter may be fined up to $5,000 and/or imprisoned up to 2½ years. Despite these criminal sanctions, the social and moral repercussions may be far more damaging.

While the scandal and underlying incidents that occurred at PSU were literally crimes, it would be an even greater travesty to be further willfully blind to the teachable moments it provides. In Massachusetts, if you are in a position of authority with regard to children, you are required to report abuse or neglect if you have a reasonable belief that it has or is occurring. Even if you are not a so-called authority - if you see something, say something.

A Guide for Mandated Reporters in MA may be accessed here:

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828