Penn State Scores Moral Victory on the Field - Faces Legal Losses off the Field

Penn State Scores Moral Victory on the Field - Faces Legal Losses off the Field
Penn State players pray for victims before Nebraska's game.

As 19th ranked University of Nebraska kicked off to 12th ranked Penn State to start a pivotal Big 10 pigskin match up, Interim Head Football Coach Tom Bradley, Interim University President Mark Memmott, players, staff, boosters, students, alumni, and State College community sought to move forward after the horrific child sexual abuse scandal rocked the institution and shocked the nation. During commercial breaks in the game, Penn State sponsored spots included Memmott admitting disgust and empathy for the victims of former Penn Stater defensive coordinator Jerry Sandusky while at the same time imploring everyone at Penn State would move forward. The actual process of moving forward for the scandal plagued university may be excruciatingly difficult and lengthy. Long after the clock struck all zeroes with a close Penn State loss, many wounds will be reopened and new injuries may be suffered by the litany of legal actions ancillary to the scandal. Here are the various major legal actions criminal and civil, and the possible consequences of each:

CRIMINAL CASES
(Determined by either guilty or not guilty)

Jerry Sandusky being taken into custody by police.

Commonwealth of Pennsylvania v. Gerald A. Sandusky

Plenty has been made of Joe Paterno and what he could and could not have done. However, Jerry Sandusky is the monster. He is the man who subjected vulnerable children as young as eight to unmentionable sexual acts using gifts, pressure, and threats.

Sandusky faces 40 counts of sexual assault in the State of Pennsylvania. According to Pennsylvania Criminal Code, charges could include:

Rape of a child (18 Pa.C.S.A. § 3121(c))
Involuntary deviate sexual intercourse with a child (18 Pa.C.S.A. § 3123(b))
Aggravated indecent assault of a child 18 (18 Pa.C.S.A. § 3125(b))
Indecent assault of a child (18 Pa.C.S.A. § 3126(a)(7), (b)(3))
Indecent exposure (18 Pa.C.S.A. § 3127(b))

No question the trial of Sandusky will become a media circus. More stories will surface and high profile witnesses could be called (more on this later). Sandusky’s conviction will be a slam dunk if there ever was one. The intriguing portion will be the sentencing. Reason being is Sandusky actually free on $100,000 bond, which seems patently unfair based on his serial child predator nature.  Ironically, Sandusky could face up to 40 years in prison on those 40 charges, because it is the maximum allowable sentence for the most serious crimes he has committed. More likely that not, Sandusky will spend the rest of his life in prison.

VERDICT: GUILTY

Tim Curley (left), Gary Schultz (right)

Commonwealth of Pennsylvania v.  Tim Curley & Gary Schultz

Former Penn State Athletic Director Tim Curley and former Vice President for Business and Finance Gary Schultz face charges of perjury. The charges allege both men lied to the grand jury indicting Jerry Sandusky about circumstances surrounding what was reported to them by recently placed on administrative leave Penn State Wide Receivers Coach Mike McQueary, who allegedly witnessed Sandusky committing a sexual assault upon a ten year old boy.

Mike McQueary, who was a graduate assistant at the time in 2002, testified to the grand jury he reported to Tim Curley and Gary Schultz he witnessed what he believed to be Sandusky having anal sex with a boy in Penn State’s athletic facility (“Lasch Building”) showers. The findings of the grand jury determined Mike McQueary’s testimony to be extremely credible.

Tim Curley was asked by twice whether McQueary reported to him that he saw anything of a “sexual nature” occur between Sandusky and “Victim 2” and he said “no” twice. Curley was asked whether McQueary reported anal sex between Sandusky and the child and stated “Absolutely not.”

Gary Schultz testified to the grand jury he was unsure about what was told him, but he had the impression McQueary inappropriately grabbed “Victim 2”’s genitals while wrestling. While conceding a man grabbing a boy’s genitals while wrestling was inappropriate and considered “sexual” contact, Schultz testified the allegations “were not serious”, and “had no indication a crime had occurred”. Schultz also testified he believe he and Curley contacted child protection services to look into the matter. Schultz also testified the same agency that looked into a 1998 investigation of sexual assault charges was looking into the then present matter. The grand jury determined Gary Schultz never reported to Penn State University Police even though he oversaw the police as part of his position. Schultz never reported to any other authority. Schultz never officially requested a report to the 1998 investigation of sexual charges against Sandusky.

It is abundantly clear both Curley and Schultz lied to the grand jury. Curley was pressed multiple times to corroborate McQueary reported to both gentlemen he witnessed anal sex and he flat out lied about it. Schultz could not possibly believe a man having anal sex with a 10 year old boy is not a crime. Further for Schultz, he lied about contacting authorities and looking into previous allegations.

Both men face up to 7 years in Pennsylvania State Prison if convicted. Curley lied about one fact, while Schultz may have lied about multiple facts. Chances are Schulz spends more time behind bars than Curley.

VERDICT: BOTH GUILTY

State of Texas v. Gerald A. Sandusky, State of Florida v. Gerald A. Sandusky

The grand jury report on the indictment of Jerry Sandusky states Sandusky allegedly sexually assaulted a boy “Victim 4” during a trip to the 1998 Outback Bowl in Tampa, Florida, and the 1999 Alamo Bowl in San Antonio, Texas. Less is known specifically what crimes Sandusky allegedly committed against the youth on those trips. Both states most likely will charge him with crimes applicable to their state’s penal code subsequent to Pennsylvania’s prosecution of Sandusky.

VERDICT: UNDETERMINED (but probably guilty)

Dr. Jack Raykovitz

 Commonwealth of Pennsylvania v. Dr. Jack Raykovitz

Pennsylvania, under 23 Pa.C.S.A. §6311(b) requires certain persons report to proper authorities cases of reported child abuse. A court would first have to determine whether The Second Mile fits within the definition of the law. Normally the law refers to school, hospitals, and social service agencies, but is not limited to such institutions or persons. Certainly as an organization designed to help children, it is reasonable The Second Mile fits within that description. Next, it would be determined whether Dr. Raykovitz violated the duty to report. As more details come out in the Sandusky trial, a case against Dr. Raykovitz may come into light. Dr. Raykovitz could face up to a year in prison if convicted, and up to two years if he may have received multiple report of Sandusky sexually assaulting children and did not report.

VERDICT:  PROBABLY GUILTY

In the end, Graham couldn't pull the rabbit out of his hat.

Commonwealth of Pennsylvania v. Graham Spanier

Spanier could potentially be indicted for failing to report child abuse as well as perjury. A trial of Schultz and Curley would be determinative as to how successful indicting Spanier on those charges as Spanier testified to the grand jury he did not receive any reports from Schultz or Curley concerned sexual abuse of children.

VERDICT: UNDETERMINED

***

CIVIL CASES
(Denoted by either liable or not liable)

Alleged Victims v. Jerry Sandusky, The Second Mile, Pennsylvania State University, Commonwealth of Pennsylvania, Joe Paterno, et al. (and others)

The alleged victims of Jerry Sandusky can and will seek civil recourse in relation to every individual and entity directly or indirectly involved with Jerry Sandusky’s actions all in one case through a process call “joinder”. Joinder allows a plaintiff in a civil suit to include additional claims and defendants in the suit. Each defendant may incur a different level of liability:

The Victims v. Jerry Sandusky
The most direct defendant obviously is Jerry Sandusky, who the victims may sue for an intentional tort against their person. The civil suit requires only a standard of preponderance of the evidence to find liability against Sandusky, versus a criminal suit which requires a conviction based on beyond a reasonable doubt standard.

VERDICT: LIABLE

 

The Victims v. The Second Mile

Victim can join The Second Mile under a concept known as respondeat superior, which holds an organization legally responsible for acts of its agents. Organizations can also be liable for its choices for choosing or keeping relationships with those hired or independently contracted. Organizations can escape liability if the agent in question acts outside the scope of its role of the organization. What that “scope” is can become a gray area legally.  Gary Schultz testified to the grand jury he contacted Dr. Jack Raykovitz, then Executive Director of The Second Mile, and revealed to him what was reported to him by Mike McQueary. Although the grand jury determined Schultz’s testimony as not credible, the victim’s legal counsel would put Raykovitz and others on the stand to determine the accuracy of the testimony amongst other things. If those statements are true, it is unreasonable after a previous investigation where law enforcement overheard Sandusky admitted to showering with boys and the conversation with Schultz the organization would continue to allow Sandusky to use the organization to have close contact with boys for 9 more years.

The organization can also find itself liable due to Dr. Raykovitz’s failure to report Sandusky’s abuse to the proper authorities. His actions in of itself may have prevented further assaults by Sandusky.

VERDICT: LIABLE

 

The Victims v. Penn State
Penn State can be held responsible for acts of Sandusky, Schultz, Curley, and/or Graham Spanier, the recently fired president of Penn State. Although Sandusky was retired to an emeritus role with the university, he was given access in practically unlimited ways to the university and was listed in the faculty directory. His access included trips with Second Mile kids to bowl games, university events, and visiting Penn State facilities. Even Tom Curley admitted the agreement banning Sandusky from bringing kids to campus was unenforceable. In every way Sandusky acted as an agent for Penn State, and university will have to bear the costs.

The university can also be put on the hook for the actions of Graham Spanier, who ultimately may have been required to make a report to the proper authorities of abuse. His actions it could be argued, led to further repeated acts of abuse by Sandusky.

VERDICT: LIABLE

 

The Victims v. The Commonwealth of Pennsylvania
Penn State is a public university, and thus the institution acts as an instrumentality of the commonwealth. The acts of the university thus could be shared by the commonwealth. For example, the Board of Trustees for Pennsylvania was the body for Penn State which determined the futures of the university president and the coach of the football team. The scope argument is relevant here. However, the acts by the President of the University is damning for the State.

VERDICT: LIABLE

 

Joe Paterno

The Victims v. Joe Paterno

As we go down the line of possible defendants, liability gets more tenuous. The most heated arguments in the Penn State scandal center on what Joe Paterno knew and the fairness of his termination as head coach. A civil law suit will reveal many of those facts. Not only was Joe Paterno Sandusky’s immediate supervisor when he coached, he also served on the Honorary Board of Directors for The Second Mile.  Being on the Honorary Board of an organization is title in name only often times. Most Honorary Board members of organizations rarely, if ever, visit the facilities of the organizations they belong to, nor do they interact with those helped by the organization. It is quite common for those on the board to only go to fundraisers and photo ops. Many are content to only give monetary contributions to such organizations.

That being said, it is reasonable that Dr. Raykovitz, after being informed that Sandusky would not be allowed to bring children to Penn State facilities based on his inappropriate contact with them, went to Joe Paterno. Joe Paterno had a vested interest as a Board Member and coach of the football team to know about Sandusky’s misgivings. Whether being informed by Raykovitz elevated the responsibility of Paterno at that time (for criminal and civil liability) would be left for a jury to decide.

Pennsylvania not only has a Section for those required to report child abuse, there is also a law  (Section 6312) which states any person is permitted to report child abuse. Although Paterno did not report abuse directly to authorities, he reported the abuse to his immediate supervisor Tim Curley. It is more unlikely than likely Joe Paterno would share in the liability for the university. What is more likely is the university settles with the victims and covers its former employee, who has not been charged with a crime.

VERDICT: UNDETERMINED

 

Mark Wahlberg

The Victims v. Famous Members of The Second Mile Honorary Board

Also on the Honorary Board of Directors for The Second Mile include big name individuals such as Philadelphia Eagles Head Coach Andy Reid, legendary golfer Arnold Palmer, A-list actor Mark Wahlberg, Major League Baseball Hall of Famer Cal Ripken, legendary coach Lou Holtz, National Football League Hall of Famers Franco Harris and Jack Ham, and Super Bowl winning coach Dick Vermeil. As of yesterday, the Honorary Board of Directors was removed from The Second Mile website as well as its normal operating board. Most of those individuals, if not all, have probably removed their names and no longer will be associated with the organization. There does not appear to be any liability here and the media has largely shielded these extremely popular individuals from scrutiny in the matter.  What I would advise as legal counsel would be to donate to causes involved abused children. It was probably in the best intentions of all of these men to help the less fortunate children in society. For those reasons they are to be commended.

VERDICT: NOT LIABLE

***

The victims in a civil suit would be seeking compensatory damages as well as punitive damages in their civil suits in the tens of millions of dollars. Litigation would be costly, lengthy, and painful for all parties involved. The Second Mile, Penn State, and the Commonwealth of Pennsylvania would best served in opening up their check books and deliver a check to victims a substantial sum that cannot be turned down as well as another demonstrative act to show they are committed to causes of child sexual abuse.

Only after any and all litigation is resolved can “We are Penn State” can truly mean moving forward. For the victims involved, moving forward will take more than a conviction of their perpetrator, money, or donation of a building.

There are some scars that last a lifetime.

Exavier B. Pope, Esq. is an entertainment and sports attorney and legal blogger for Chicago Now. All opinions expressed are those solely of Mr. Pope.

(c) 2011, Exavier Pope

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Comments

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  • I've said in other places that I don't predict what juries will do, but I do say whether there is sufficient evidence to convict, and I was essentially right in Blago II and Cellini, but not so much with Robert Blago. Of course, we don't even have evidence presented to a jury yet, but just a grand jury report, although a very damning one.

    The three problems I have with this analysis are:

    (a) the Michael Jackson effect, in that he got off, and also was acquitted. At least here there are witnesses, although certain people are already trying to rake McQueary over the coals by intimating that he is as much at fault as the others (I don't buy that), and it was interesting that Jim Calhoun (not the UConn coach) is incompetent to testify. There are probably questions whether there is evidence of rectal injuries or the like.

    (b) in the civil area, you seem to leave out respondeat superior, in that all actors are associated with Penn State, and hence the state itself would not be liable, and similarly, since all acts were done in the scope of employment at Penn State, even though not authorized by it, Penn State would be liable for the acts, of say, Paterno.*

    (c) Given what entity would be ultimately liable, any of the complications of whatever State Tort Claims or Immunity Act there is come into play, and the fact that these probably would go to a court of claims rather than before a jury.

    However, nobody is paying me to research those subjects at 9 a.m. Sunday.

    ___________
    *I mention Paterno in that it seems like the most that could be said about him is negligence, and in the cases of others there seems to be a debate in Pa law whether respondeat superior extends to willful and wanton conduct, mostly raised in the context of punitive damages (you can Google that).

  • In reply to jack:

    I mentioned respondeat superior in the article. The scope of employment portion is a thorny area of law easily manipulated to a jury. The State operates the school. I am not focused on Paterno's acts as much as I am Sandusky's, Spanier's, Schultz, and Curley.

    State Tort Claims aside (which I do not believe would be the case due to various jurisdictional issues I won't mention here), the case is not going to a jury. This is a settlement waiting to happen.

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