We Are Guilty Of Falling Victim To A Hierarchy Reporting System: The Prosecution of Sideline Players In The Pennsylvania State University Football Sexual Assault Scandal

Volume 27 Issue 1 Article 4

3-22-2020

We Are Guilty Of Falling Victim To A Hierarchy Reporting System: We Are Guilty Of Falling Victim To A Hierarchy Reporting System:

The Prosecution of Sideline Players In The Pennsylvania State The Prosecution of Sideline Players In The Pennsylvania State

University Football Sexual Assault Scandal University Football Sexual Assault Scandal

Caroline Fitzgerald

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Part of the Entertainment, Arts, and Sports Law Commons

Recommended Citation Recommended Citation

Caroline Fitzgerald,

We Are Guilty Of Falling Victim To A Hierarchy Reporting System: The Prosecution of

Sideline Players In The Pennsylvania State University Football Sexual Assault Scandal

, 27 Jeffrey S.

Moorad Sports L.J. 101 (2020).

Available at: https://digitalcommons.law.villanova.edu/mslj/vol27/iss1/4

This Comment is brought to you for free and open access by the Journals at Villanova University Charles Widger

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WE ARE GUILTY OF FALLING VICTIM TO A HIERARCHY

REPORTING SYSTEM: THE PROSECUTION OF SIDELINE

PLAYERS IN THE PENNSYLVANIA STATE UNIVERSITY

FOOTBALL SEXUAL ASSAULT SCANDAL

I. T

-G

AME

HOW

: I

NTRODUCTION

On any given Saturday when the Pennsylvania State University

(“Penn State”) football team hosts a visiting opponent, hundreds of

thousands of students, alumni, legacy families, and visitors in town

experience the electricity of attending a football game at Beaver

Stadium gather in parking lots hours before kickoff.

University

tour guides brag to visitors and potential future Nittany Lions that

the volume of the cheers from the stadium are so loud, the roar

registers on the Richter scale.

Throughout the game, the crowd

chants the school’s beloved mantra, one that has been used since

1946: “We Are, Penn State.”

However, in 2011, the all-encompass-

ing admiration for the football program experienced an adversity

much more devastating than a loss to their rival team: allegations of

repeated child sexual abuse by one of the team’s former coaches,

and a subsequent cover-up of this abuse by other highly-regarded

leaders of the University and football community, came to the

surface.

1. See Edward Moran, In Happy Valley, Penn State Football Means Big Business,

. T

RIB

(Nov. 9, 1997), https://www.chicagotribune.com/news/ct-xpm-1997-11-

09-9711090337-story.html [https://perma.cc/2LFC-ZPRS] (detailing exciting envi-

ronment that begins days before each Penn State home football game); see also

Zach Spedden, Fundraising Key to Future Beaver Stadium Plans,

OOTBALL

TA-

DIUM

IGEST

(May 9, 2018), https://footballstadiumdigest.com/2018/05/fun-

draising-key-to-future-beaver-stadium-plans/ [https://perma.cc/2RA4-FCHB]

(noting Beaver Stadium’s current capacity of 106,572).

2. See Maddie Brightman, Top Five Whiteouts in Penn State History,

OMM

ADIO

PORTS

. T

RIB

(Oct. 11, 2013), https://commmedia.psu.edu/sports/story/top-five-

whiteouts-in-penn-state-history [https://perma.cc/2M6Z-N5W7] (describing Penn

State football’s first ever white out game, which took place in 2005 against Ohio

State); Interview with Bernadette Berger, Former Tour Guide, Pennsylvania State

University Class of 2015, in Philadelphia, Pa. (Feb. 13, 2019).

3. See Richard T. Hughes, “We are Penn State”: A Story to Help Us See in the Dark,

ENN

IVE

(

Jan. 2, 2012), https://www.pennlive.com/editorials/index.ssf/2012/

01/we_are_penn_state_a_story_to_h.html [https://perma.cc/ALJ3-G5X2] (dis-

cussing ethical and political origin of Penn State’s chant).

4. See Adam Clark, Students Question PSU Leadership,

ORNING

ALL

(Nov.

8, 2011), https://www.mcall.com/news/local/mc-penn-state-sandusky-student-re-

action-20111107-story.html [https://perma.cc/AUN7-J8ZE] (discussing Penn

State students’ responses of disappointment after learning of Sandusky’s abuse and

failure of school leaders to “take child abuse seriously”); see also

REEH

PORKIN

(101)

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From 1977 to 1999, Gerald “Jerry” Sandusky served as defen-

sive coordinator for Penn State’s football team, and he remained

active in the Penn State football community well after his retire-

ment.

While employed with Penn State, Sandusky founded The

Second Mile, a non-profit organization aimed at providing opportu-

nities for young men with disadvantaged backgrounds.

Ten males’

allegations of child abuse, each of whom formerly attended The

Second Mile, formed the basis for Sandusky’s arrest and subsequent

conviction.

In June 2012, Sandusky was sentenced to a maximum

of sixty years in prison for forty-five counts of child abuse.

Although Sandusky alone was charged with committing acts of

sexual assault, the Court of Common Pleas in Dauphin County and

the Superior Court of Pennsylvania found that he was not the only

person at fault for what happened to his victims.

Graham Spanier,

Tim Curley, and Gary Schultz, all of whom were high-ranking ad-

ministrative officials at Penn State at the time Sandusky was com-

mitting abuse, were arrested and charged with “endangering the

ULLIVAN

, LLP, R

EPORT OF THE

PECIAL

NVESTIGATIVE

OUNSEL

EGARDING THE

C-

TIONS OF

ENNSYLVANIA

TATE

NIVERSITY

ELATED TO THE

HILD

EXUAL

BUSE

OMMITTED BY

ERALD

A. S

ANDUSKY

, 8, 13 (

2012), available at https://

www.documentcloud.org/documents/396512-report-final-071212.html [https://

perma.cc/G4ZE-JA4M] [hereinafter the “Freeh Report”] (“On November 4, 2011

the Attorney General . . . filed criminal charges against Gerald A. Sandusky . . .

includ[ing] multiple counts of involuntary deviate sexual intercourse, aggravated

indecent assault, corruption of minors, unlawful contact with minors and endan-

gering the welfare of minors.”).

5. See CNN Library, Penn State Scandal Fast Facts,

CNN

, https://www.cnn.com/

2013/10/28/us/penn-state-scandal-fast-facts/index.html [https://perma.cc/

DRT7-L6PQ] (updated Nov. 27, 2019, 5:22 PM) (“June 1999 – Sandusky retires

from Penn State after coaching there for 32 years, but receives emeritus status,

with full access to the campus and football facilities.”).

6. See Commonwealth v. Spanier, 192 A.3d 141, 142 (Pa. Super. 2018) (observ-

ing Sandusky’s role as “founder of a non-profit charity for troubled youth”).

7. See id. at

143 (“

In 2011, Sandusky was arrested and charged with forty-nine

counts arising from his alleged abuse of ten child victims.”).

8. See Erica M. Kelly, The Jerry Sandusky Effect: Child Abuse Reporting Laws Should

No Longer Be Don’t Ask, Don’t Tell, 17 U.

ITT

. L. R

. 209, 212 (2013) (“

[Sandusky]

was sentenced to 30 to 60 years in prison, which likely constitutes the equivalent of

a life sentence, as Sandusky was 68-years-old at the time of his sentencing.”).

9. See Will Hobson, Former Penn State President Graham Spanier Sentenced to Jail

for Child Endangerment in Jerry Sandusky Abuse Case,

ASH

. P

OST

, (

Jun. 2, 2017, 3:01

PM), https://www.washingtonpost.com/news/sports/wp/2017/06/02/former-

penn-state-president-graham-spanier-sentenced-to-jail-for-child-endangerment-in-

jerry-sandusky-abuse-case/?utm_term=.c4d56c4e75c9 [https://perma.cc/UM3F-

39F9] (quoting Judge John Boccabella, who presided over charges brought against

Graham Spanier, Tim Curley, and Gary Schultz, in regards to his disgust that “[a]ll

three ignored the opportunity to put an end to [Sandusky’s] crimes when they had

the chance to do so”).

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welfare of a child.”

Investigations into Sandusky’s case revealed

records indicating Spanier, Curley, and Schultz were aware of prior

sexual abuse acts by Sandusky, and that the three officials did not

report such acts to police or any other regulatory authority tasked

with investigating such types of allegations.

While the men admit-

tedly regret their lack of action upon being made aware of San-

dusky’s suspicious activity with minors, Spanier did not submit a

guilty plea, even though Curley and Schultz did.

In fact, Spanier

not only went to trial to fight the charges against him, he continued

to resist his responsibility by appealing the trial court’s guilty

verdict.

Commonwealth v. Spanier

examined the legal culpability of the

university President who turned a blind-eye to reports of a univer-

sity staff member sexually abusing minors.

This case discussed du-

ties implicit in Spanier’s job, particularly when he had knowledge

of Sandusky’s actions, including providing protection for known

victims on the university’s campus.

Spanier’s failure to take fur-

ther action against Sandusky or report the abuse to authorities led

to his child endangerment conviction.

10. See id. (“Three former Pennsylvania State University administrators, in-

cluding former president Graham Spanier, were each sentenced to serve at least

two months in jail Friday for failing to alert law enforcement about a 2001 incident

involving retired football coach Jerry Sandusky and a boy in a campus shower.”).

11. See

REEH

PORKIN

& S

ULLIVAN

, LLP,

supra note 4, at

14 (

detailing results

of extensive investigation into Penn State’s failures to realize and halt Sandusky’s

abuse)

For a further discussion of the Freeh Report, see infra notes 155–165.

12. See Hobson, supra note 9 (“All three men were convicted of the same mis-

demeanor charge of child endangerment, but Curley and Schultz both reached

plea agreements and testified at Spanier’s trial in March. . . . The three former

Penn State officials all apologized for their actions and to Sandusky’s victims

before the sentences were handed down.”).

13. See Commonwealth v. Spanier, 192 A.3d 141, 142 (“Appellant, Graham B.

Spanier, appeals from the judgment of sentence of four to twelve months of incar-

ceration, imposed June 2, 2017, following a jury trial resulting in his conviction for

one count of endangering the welfare of a child.”).

14. 192 A.3d 141 (Pa. Super. 2018).

15. See id. at 152 (“[O]ur focus is limited to a university president’s duty in the

face of knowledge of allegations of on-campus sexual abuse of minors, in this case

by a high-status former employee with access to campus facilities.”).

16. See id.at 153 (finding duty of care extended to Spanier). For a further

discussion of Spanier’s trial, see infra notes 36–115 and accompanying text.

17. See id.at 142 (explaining court’s finding of duty based on Spanier having

“occupied a position of high authority with respect to the site of the crime, person-

ally oversaw the university’s response to the allegations, noted to other employees

the risk of not reporting the coach to the police, and had sufficient information

and authority to take action but declined to do so”). For a further discussion of

Spanier’s child endangerment charge, see infra notes 73–115 and accompanying

text.

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This Comment argues that the Pennsylvania laws previously in

place were predominantly deficient in protecting children, but revi-

sions made since the incident have greatly increased the responsi-

bility placed on individuals with reason to believe abuse is

occurring.

This Comment explores whether the level of responsi-

bility Pennsylvania law placed on Penn State employees who were

aware of Sandusky’s child abuse is sufficient in providing justice for

Sandusky’s victims, as well as whether this accountability is adequate

to deter adults in comparable positions from acting similarly.

De-

spite this increase in protection, this Comment will argue for addi-

tional changes to relevant law in order to further enhance

protection for minors.

Part II of this comment will provide a

background of child endangerment and mandatory reporting laws

in Pennsylvania.

Additionally, Part II will specifically discuss

Spanier’s trial, along with the non-criminal consequences resulting

from Sandusky’s crimes.

Lastly, Part III will analyze the shortcom-

ings of the previous mandated reporting laws in Pennsylvania, as

well as provide suggestions for additional improvements to further

bolster child safety.

II. W

ATCHING

AME

ILM

: R

EVIEW OF

EGAL

ACKGROUND

A. Penn State Football: A Dynasty Under Coach Joe Paterno

Between 2016 and 2017, Penn State University generated over

thirty-five million dollars from sporting event ticket sales alone, of

which football games accounted for over thirty-one million.

total, the football program made over eighty-one million dollars,

the difference of which is accounted for by concession sales, mer-

18. For a further discussion of Pennsylvania’s mandated reporting laws, see

infra notes 73–154 and accompanying text.

19. For a further discussion of punishments imposed on these employees, see

infra notes 63–72 and accompanying text.

20. For a further discussion of suggested revisions to Pennsylvania, and adop-

tion of federal, mandated reporting laws, see infra notes 211–244 and accompany-

ing text.

21. For a further discussion of child endangerment and mandated reporting

laws in Pennsylvania, see infra notes 73–154 and accompanying text.

22. For a further discussion of Graham Spanier’s trial, see infra notes 69–115

and accompanying text. For a further discussion of the non-legal consequences

faced by Penn State, see infra notes 155–193 and accompanying text.

23. For a further discussion of mandated reporting law suggestions, see infra

notes 194–244 and accompanying text.

24. See Sarah Ravacz, Not only is Penn State athletics self-sustaining, it’s making a

profit,

ENTRE

AILY

IMES

(

Mar. 8, 2018, 3:20 PM), https://www.centredaily.com/

sports/college/penn-state-university/article204119879.html (reviewing Penn

State’s 2016–17 NCAA annual Financial Report).

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chandise purchases, and media rights among other aspects.

While Penn State’s reputation as a football powerhouse existed for

decades, this notoriety did not begin until former coach Joe

Paterno joined the team’s leadership.

During Paterno’s tenure at Penn State, he coached five un-

defeated teams, won two national championships, and won more

games than any other coach in the history of college football.

addition to being the “winningest” coach, Paterno’s notoriety

stemmed from his unprecedented view towards and demand of his

players — that their success in the classroom be equally as impor-

tant as their success on the football field.

Paterno’s dedication to

the interweaving of academics and athletics proved lucrative when

his football players graduated at a rate of nineteen points above the

national average.

Further, Paterno was not only known for his

unyielding dedication to Penn State, but for instilling the practice

of humility in his players, regardless of their individual and team

achievements.

The adoration felt by Penn State students and

25. See Ben Jenkins, Penn State Release Revenue Information for Athletics,

AILY

OLLEGIAN

(

Mar. 8, 2018), https://www.collegian.psu.edu/sports/arti-

cle_e11e9abc-22e7-11e8-a58e-87d56b34320c.html [https://perma.cc/RM93-

C9GZ] (comparing Penn State football team’s revenue to other university’s

teams).

26. See Ivan Maisel & Mark Schlabach, Joe Paterno Leaves Lasting Legacy,

ESPN

(

Jan. 22, 2012), https://www.espn.com/college-football/story/_/id/7488107/joe-

paterno-leaves-legacy-penn-state [https://perma.cc/WA79-JKGZ] (noting through

all major changes college football faced during Paterno’s time as coach, Penn

State’s “rise . . . as an athletic and academic power” was most significant).

27. See id. (discussing Paterno’s monumental moments, including 409 games

he won).

28. See id. (summarizing Paterno’s implementation of this unique and ideo-

logical viewpoint, which Paterno himself called “the Grand Experiment”).

29. See id. (“Over the next four-plus decades, Paterno and his university —

and the two became interchangeable in the minds of the nation — made the

Grand Experiment a success. As late as 2007, the NCAA reported that Penn State

football players graduated at a rate of 74 percent, 19 points above the national

average.”).

30. See id. (providing examples of various more-profitable options presented

to Paterno while at Penn State, as well as discussing simplicity of Penn State’s

uniforms); see also Will Hobson, Six Years Later; Penn State Remains Torn Over the

Sandusky Scandal,

ASH

. P

OST

(

Dec. 28, 2017), https://www.washingtonpost.com/

graphics/2017/sports/penn-state-six-years-after-sandusky-scandal/?utm_term

=.2d04fb1af668 [https://perma.cc/S5BF-8H46] (“In the venal world of college

football, Paterno built a reputation as a coach who valued integrity over winning –

‘Success with Honor’ was his motto. . . .”). One opportunity turned down by

Paterno was an offer to become a coach, general manager and part-owner of the

Patriots, a National Football League (NFL) team that now is tied for the most

Super Bowl wins. Id. (emphasizing his unwavering commitment to his collegiate

team). The job-change would have increased Paterno’s salary from thirty-five

thousand dollars to one point four million dollars. Id. (accentuating his dedica-

tion even when it came to his financial disadvantage).

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alumni towards Paterno was so great that the area directly outside

of the football stadium was designated “Paternoville.”

Unfortunately, outrage following the news of Sandusky’s ram-

pant abuse was not primarily in reaction to Sandusky’s vicious ac-

tions, but rather in response to the suggestion of Paterno’s

involvement.

Following Sandusky’s arrest, Penn State fired

Paterno from his job as head coach, removed an on-campus statute

of Paterno , and renamed “Paternoville” as “Nittanyville.”

Today,

a divide still exists as to whether Paterno should continue to be re-

vered as the “greatest football coach in the history of the game,” or

the coach who allowed his right-hand man to sexually abuse chil-

dren.

This Comment does not discuss legal consequences Paterno

may have faced in light of his documented awareness of Sandusky’s

criminal behavior, as Paterno passed away two months after San-

dusky’s arrest.

B. Commonwealth v. Spanier

Other Penn State employees implicated in the Sandusky scan-

dal are Graham Spanier, Tim Curley, and Gary Schultz for their

roles in failing to take appropriate measures upon learning of an

inappropriate incident between Sandusky and a minor.

Spanier

served as President of Penn State from 1995 to 2011 and Curley

31. See Adam Rittenberg, Paternoville Changes Name to Nittanyville,

ESPN (

Jul.

17, 2012), http://www.espn.com/blog/bigten/post/_/id/53295/paternoville-

changes-name-to-nittanyville [https://perma.cc/YVR3-93G9] (describing

Paternoville as “tent village[s] set up outside Gate A at Beaver Stadium before

home games”).

32. See Don Van Natta Jr., Joe Paterno Statute Taken Down,

ESPN (

Jul. 23, 2012),

http://www.espn.com/college-football/story/_/id/8188530/joe-paterno-statue-

removed-penn-state-university-beaver-stadium [https://perma.cc/9WMY-YXFF]

(describing disbelief of Penn State fans faced with idea that Paterno was involved

in Sandusky scandal).

33. See Hobson, supra note 30 (discussing controversial actions taken by Penn

State in immediate response to Sandusky’s indictment); see also CNN Library, supra

note 5 (providing date Paterno was fired – November 9, 2011).

34. See Katie Reilly, Penn State’s Joe Paterno Tribute Met With Standing Ovation

and Protest,

TIME (

Sept. 17, 2016), http://time.com/4498286/penn-state-joe-

paterno-tribute/ [https://perma.cc/4E7M-VSGM] (describing conflicting reac-

tions to Penn State’s tribute to Paterno on his fiftieth anniversary as head coach);

see also Time Molloy, Penn State’s Joe Paterno Dead at 85 (Update),

EUTERS

(Jan. 21,

2012, 9:45 PM), https://www.reuters.com/article/idUS133807577120120122

[https://perma.cc/CX6U-YSW7] (quoting Urban Meyer as saying “[Joe Paterno]

will go down as the greatest football coach in the history of the game”).

35. See CNN Library, supra note 5 (providing Paterno’s date of death as Jan.

22, 2012).

36. See Hobson, supra note 9 (referring to sexual assault witnessed by graduate

assistant Mike McQueary).

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served as Penn State’s athletic director from 1993 to 2011.

Sch-

ultz had been employed at Penn State since the mid-1970s, and

eventually landed a position as Senior Vice President at the

University.

1. Delay of Game: University Administrators’ Responses to Prior

Reporting

During the approximately thirteen-years in which Sandusky

abused minors, Penn State administrators were made aware of two

separate instances involving Sandusky and underage boys on the

University’s campus.

The first instance occurred in 1998 when

Penn State Police received a report from an eleven-year-old boy’s

mother alleging that her child and Sandusky had taken a shower

together.

While in the shower, the boy had tried to keep his dis-

tance from Sandusky, but was forced into making physical contact

with him, being washed by him, being picked up by him and being

hugged by him.

Further investigation into the incident revealed

details about additional inappropriate events preceding the

shower.

A wiretap conversation between the boy’s mother and

Sandusky recorded Sandusky admitting to showering with the boy,

and led to him informing Penn State Police that he had hugged the

boy while they were naked in the shower.

Although charges were

37. See id. (noting positions of Spanier and Curley at Penn State).

38. See id. (stating Schultz’s position at Penn State).

39. See Commonwealth v. Spanier, 192 A.3d 141, 142–43 (Pa. Super. 2018)

(documenting 2001 incident serving as basis for Spanier’s conviction was not first

time Spanier and other administrators were put on notice about suspect activity

occurring between Sandusky and minor boys).

40. See Commonwealth v. Spanier, 132 A.3d 481, 482–83 (Pa. Super. 2016)

(“When Sandusky returned the child to the boy’s home, the child’s mother no-

ticed that his hair was wet and became upset when she discovered that he had

showered with Sandusky.”).

41. See id. at 483 (“The youngster attempted to shower away from Sandusky,

but Sandusky beckoned him closer and told him that he warmed up a shower for

the child. Sandusky grabbed the boy from around his waist, lifting him into the

air. He also washed the boy’s back and bear hugged the child from behind, before

rinsing the child’s hair.”).

42. See id. at 482–83 (“On the way to [Penn State], Sandusky placed his right

hand on the boy’s thigh on multiple occasions. . . Sandusky then wrestled with the

victim, before instructing the boy to shower.”).

43. See id. at 483 (“Sandusky admitted to showering naked with the child and

at one point stated that he wished he were dead. He later told police that he

hugged the child in the shower and admitted that it was wrong.”).

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never filed as a result of this investigation, Spanier, Curley, and

Schultz had received regular updates about the incident.

In February 2001, less than three years after the initial inci-

dent, Spanier, Curley, and Schultz were made aware of yet another

event involving Sandusky and a young boy.

In this instance, a

graduate assistant for the football team, Michael McQueary, wit-

nessed Sandusky sexually assaulting a boy in the shower.

The fol-

lowing day, McQueary reported the incident to Paterno, who in

turn shared the information with University administrators.

Later, McQueary met directly with both Curley and Schultz to speak

about what he had witnessed.

The next day, Curley met with

Spanier and Schultz to decide how to proceed with the situation.

The three of them initially decided Curley would have a discussion

with Sandusky and contact both The Second Mile and the Depart-

ment of Public Welfare.

After postponing the agreed upon plan for a couple of weeks,

Spanier, Curley, and Schultz eventually decided to change their

course of action and had a conversation with Sandusky to seek his

cooperation before reaching out to other parties.

Under this new

44. See Spanier, 192 A.3d at 142 (“Schultz and Curley corresponded regularly

by email regarding the investigation. [Spanier] was a carbon-copy recipient of

some of those emails. Ultimately, no criminal charges were filed . . . .”).

45. See id. at 143 (“On February 12, 2001, following a routine president’s

council meeting, Curley and Schultz met privately with [Spanier] to discuss San-

dusky. They discussed the recent incident and the 1998 incident, which [Spanier]

remembered.”).

46. See id. (“On the evening of February 9, 2001, Michael McQueary, a gradu-

ate assistant with the PSU football team, went into the Lasch Building. He heard

noises and, upon investigating, observed Sandusky sexually assaulting a ten-to

twelve-year-old boy in the shower.”).

47. See id. (“On February 10, 2001, McQueary told head football coach Joe

Paterno about what he had seen. On February 11, 2001, Paterno contacted Curley,

who in turn informed Schultz.”).

48. See Spanier, 132 A.3d at 483 (“McQueary. . . stated that he told [Curley and

Schultz] that he believed he saw Sandusky having anal sex with a minor boy.”).

49. See Commonwealth v. Spanier, 192 A.3d 141, 143 (Pa. Super. 2018)

(“They devised a three-part plan: 1) speaking with Sandusky about appropriate use

of facilities; 2) contacting the director of [The Second Mile]; and 3) contacting

the Department of Public Welfare.”).

50. See id. (“[Spanier] put Curley in charge of executing the plan and keeping

Schultz informed.”); see also Janice Crompton & Timothy McNulty, PSU’s Jerry San-

dusky ‘Found His Victims’ at Second Mile Group Home,

ITT

. P

OST

-G

AZETTE

(Nov. 6,

2011, 12:00 AM), https://www.post-gazette.com/sports/psu/2011/11/06/PSU-s-

Jerry-Sandusky-found-his-victims-at-Second-Mile-group-home/stories/

201111060201 [https://perma.cc/3KHZ-8KVL] (describing Second Mile Founda-

tion charity founded by Sandusky to provide opportunities for at-risk children in

Pennsylvania).

51. See Spanier, 192 A.3d at 143 (“On February 27, 2011, Curley emailed Sch-

ultz and [Spanier] to say that he was no longer comfortable with the original

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strategy of dealing with the allegations internally, Curley would ap-

proach Sandusky and inform him that he was no longer allowed to

use Penn State facilities with boys from The Second Mile.

When

Curley approached Sandusky about this new prohibition, Sandusky

denied any wrongdoing regarding the event McQueary had alleg-

edly witnessed.

Curley then reached out to Jack Raykovitz, the

director of The Second Mile, about the accusations and informed

him that Sandusky was forbidden from bringing The Second Mile

boys to Penn State facilities.

However, Penn State personnel were

not notified of the implementation of this restriction on The Sec-

ond Mile, and therefore, the restriction was not enforced.

Curley,

Schultz, and Spanier did not bring this matter to anyone’s attention

other than Raykovitz’s.

Sandusky’s abusive behavior towards the victim that McQueary

observed amounted to criminal conduct and would have been suffi-

cient to justify taking legal action against Sandusky.

However, the

absence of reporting the incident to the appropriate authorities en-

abled Sandusky to continue abusing minor boys.

Further, be-

cause Spanier, Curley, and Schultz neglected to invoke the ban

against Sandusky bringing minor boys to the Penn State facilities,

one of those boys was sexually assaulted on the campus.

This on-

plan. . . [Spanier] supported Curley’s [new] plan, though he observed that if San-

dusky did not cooperate, they would be vulnerable for not having reported the

incident.”).

52. See id. (“Instead, Curley wanted to speak only with Sandusky at first to

advise him to seek professional help, and to tell him he could no longer bring

underage boys to PSU facilities. If Sandusky cooperated, Schultz, Curley and

[Spanier] would inform only [The Second Mile]; otherwise, they would inform

both [The Second Mile] and [the Department of Public Welfare].”).

53. See id. (“Sandusky denied any wrongdoing when Curley spoke to him.”).

54. See id. (“Curley spoke to Raykovitz and expected Raykovitz to enforce the

limits on Sandusky’s use of PSU facilities, but Curley did not offer Raykovitz any

direction on how to proceed.”).

55. See id. (“Further, Curley did not inform campus police that Sandusky was

not permitted to bring children into the facilities, or inform any other PSU person-

nel that they should enforce this rule. McQueary continued to observe Sandusky

in the Lasch Building after hours.”).

56. See id. (“After speaking with Sandusky and Raykovitz, Curley informed

[Spanier] and Schultz that he had done so. Curley never contacted [the Depart-

ment of Public Welfare], Children and Youth Services, or the police.”).

57. See 18 Pa. Cons. Stat. § 3123(b) (2003) (“A person commits involuntary

deviate sexual intercourse with a child, a felony of the first degree, when the per-

son engages in deviate sexual intercourse with a complainant who is less than 13

years of age.”).

58. See Spanier, 192 A.3d at 143 (“Sandusky subsequently abused at least four

more young boys, including one in the Lasch Building shower in the summer of

2002.”).

59. See id. (identifying Lasch Building as on-campus facility).

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campus assault occurred in the same shower as the previous inci-

dent McQueary witnessed just one year earlier.

This boy was one

of four known victims of abuse committed by Sandusky following

McQueary’s initial report in 2001.

2. Off-Sides Penalty: Legal Implications for the “Sideline Players” of the

Assault

When it came time to face the consequences of their inaction,

Spanier, Curley, and Schultz were given a five-yard penalty for a

violation that later became a fifteen-yard offense.

Trials for each

of the three men for their involvement in the cover up of San-

dusky’s child abuse were originally scheduled for March 2017.

However, one week prior to Spanier’s anticipated trial date, Curley

and Schultz each pled guilty to one misdemeanor count of endan-

gering the welfare of a child.

Although initially charged with per-

jury, obstruction of justice, conspiracy, failure to report suspected

child abuse, and endangering the welfare of children, many of

these charges were dropped prior to trial.

Both Curley and Sch-

ultz were sentenced to a maximum of twenty-three months in

prison.

However, Curley was given a seven-month minimum,

60. See id. at 143 n.3 (“The victim, John Doe, testified at [Spanier’s] trial that

in the summer of 2002, when he was approximately twelve or thirteen years old,

Sandusky sexually assaulted him in the shower at the Lasch Building.”).

61. See id. at 143 (noting that out of the ten total child victims Sandusky faced

prosecution for four of them occurred after McQueary’s report).

62. See Hobson, supra note 9 (listing limited sentences for each person).

63. See Charles Thompson, Tim Curley, Gary Schultz Plead Guilty in Sandusky

Coverup Case,

ENN

IVE

, https://www.pennlive.com/news/2017/03/tim_curley_

files_plea_in_sandu.html [https://perma.cc/J5N4-7QEM] (updated Jan. 5, 2019)

(“The case has been winding its way toward trial for four years[.]”).

64. See id. (“[Curley and Schultz guilty pleas were entered] just a week before

all three men – Spanier, Schultz and Curley – were scheduled to stand trial on

accusations they were criminally negligent in handling child-sex accusations

against Sandusky in 2001.”).

65. See Commonwealth v. Spanier, 132 A.3d 481, 482 (Pa. Super. 2016) (“We

find that Ms. Baldwin breached the attorney-client privilege and was incompetent

to testify as to the confidential communications between her and Spanier during

her grand jury testimony. Accordingly, we reverse the trial court’s determination

otherwise, and quash the charges of perjury, obstruction of justice, and conspiracy

related to those counts.”). Cynthia Baldwin had expressed to Spanier that she

would represent him before the grand jury. Id. at 484 (following receipt of

Spanier’s subpoena). However, Ms. Baldwin later stated that she only represented

Penn State, and not any University administrators. Id. at 485 (contradicting her

prior statement when court asked for clarification).

66. See Hobson, supra note 9 (“Former university athletic director Tim Curley,

63, received a sentence of seven to 23 months, with three months in jail, while

former former [sic] vice president Gary Schultz, 67, was sentenced to six to 23

months, with two months in jail.”).

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while Schultz was given a six-month minimum.

This minor varia-

tion between the sentences was likely the result of Curley’s responsi-

bilities in “executing” the reporting plan in response to the

McQueary incident, whereas Schultz had only been updated about

the progress by Curley.

Although Curley and Schultz entered guilty pleas, Spanier pro-

ceeded to trial.

At trial in March 2017, after being charged with

two counts of endangering the welfare of a child, and one count of

conspiracy to endanger the welfare of a child, Spanier was found

guilty of one charge of endangering the welfare of a child.

Fol-

lowing his sentencing of four to twelve months, Spanier appealed

his conviction.

In his appeal, Spanier argued that his guilty ver-

dict should be overturned for various reasons, including that the

appropriate statute of limitations had expired and he did not owe

the child a duty of care.

3. Personal Foul: Endangering the Welfare of a Child

Under Pennsylvania law, a person is guilty of endangering the

welfare of a child if the person “knowingly endangers the welfare of

the child by violating a duty of care, protection or support.”

Under the same statute, Pennsylvania law specifies that a person

may be guilty of endangering the welfare of a child if the person is

“[a] parent, guardian, or other person supervising the welfare of a

child under 18 years of age, or a person that employs or supervises,

such a person . . . .”

The statute further clarifies a “person super-

vising the welfare of a child” as “a person other than a parent or

guardian that provides care, education, training or control of a

67. See id. (providing sentences for Curley and Schultz).

68. For further discussion of Curley’s and Schultz’s reporting plan, see supra

notes 51–56 and accompanying text.

69. See Hobson, supra note 9 (“In a surprise, Spanier – the only one of the

three to take his case to trial earlier this year – actually received the lightest

sentence.”).

70. See Commonwealth v. Spanier, 192 A.3d 141, 144 (Pa. Super. 2018)

(“[T]he jury found [Spanier] had not engaged in a course of conduct with respect

to the EWOC conviction, resulting in a conviction for a misdemeanor rather than

a felony.”).

71. See id. (“On June 2, 2017, the court sentenced [Spanier] to four to twelve

months of incarceration followed by two years of probation. This timely appeal

followed.”).

72. See id. at 144–45 (listing questions submitted by Spanier to Appellate

Court for review challenging accuracy of trial court’s results).

73. 18 Pa. Cons. Stat. § 4304(a)(1) (2017) (defining child endangerment).

74. Id. (indicating who is subject to adherence of statute).

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child.”

Additionally, a person is guilty of the same offense “if the

person, in an official capacity, prevents or interferes with the mak-

ing of a report of suspected child abuse” to child protective services

in accordance with Pennsylvania law.

a. Possession of the Ball: A Duty of Care

The Pennsylvania statute defining child endangerment was

amended in 2007 to include “a person who employs or supervises

such a person” in the provision regarding who may be found guilty

of the offense.

This amendment was a result of Commonwealth v.

Lynn,

a case brought against a “high-ranking official in the Arch-

diocese of Philadelphia” for his failure to take action against priests

sexually abusing children.

Initially, the grand jury in this case rec-

ommended against charging Lynn with child endangerment be-

cause “the statute was written too narrowly to sustain criminal

charges against high-level Archdiocesan officials.”

However, the

resulting decision not only convicted Lynn of child endangerment,

but increased protections for future child victims due to requests

for legislators to revise the statute based on the holding in Lynn.

75. 18 Pa. Cons. Stat. § 4304(a)(3) (2017) (broadening liability under

statute).

76. 18 Pa. Cons. Stat. § 4304(a)(2) (2017) (signifying that statute accountabil-

ity is not restricted solely to those supervising).

77. See Commonwealth v. Spanier, 192 A.3d 141, 151–52 (Pa. Super. 2018)

(“[T]he General Assembly amended § 4304 in 2007 to add the [italicized] clause:

A parent, guardian, or other person supervising the welfare of a child under 18

years of age, or a person who employs or supervises such a person, commits an offense if

he knowingly endangers the welfare of a child by violating a duty of care, protec-

tion or support.”) (internal quotation marks omitted).

78. 114 A.3d 796 (Pa. 2015).

79. See Spanier, 192 A.3d at 151–52 (“Lynn’s conduct predated the 2007

amendment of the EWOC statute . . . . In response, the General Assembly

amended § 4304 . . . .”).

80. Id. (summarizing Pennsylvania Supreme Court’s decision to convict Lynn,

even though he was not directly in charge of children, against grand jury’s recom-

mendation to not bring charges against Lynn under § 4304). The version of the

statute in place at the time of Lynn’s prosecution provided that someone could not

be guilty of endangering the welfare of a child unless that person directly super-

vised the child, which Lynn did not. Id. (interpreting statute narrowly and in de-

fendant’s favor). The Lynn decision disregarded the narrowness of the statute and

found him guilty regardless of his indirect supervisory role. Id. (taking more com-

prehensive approach to statute’s language). After the Lynn holding, the statute

was amended in accordance with the decision, expanding the statute to those who

not only supervise children, but the supervisors of those who directly supervise

children. Id. (emphasizing child’s welfare, rather than child themselves, as target

of statute’s protection).

81. See id. at 151–52 (discussing Lynn’s holding and resulting statutory

amendment).

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In Lynn, the Archdiocesan official who was charged insisted he

was innocent because he did not directly supervise any children,

and therefore did not have a duty of care.

The court articulated

its understanding of the child endangerment statute as not having a

limited applicability solely to persons who personally supervise chil-

dren.

Rather, the court felt that whether a person actually inter-

acts with a child is not indicative of their liability under the

statute.

Under this interpretation, a person who oversees those

acting as chaperones for the child still carries a duty to protect the

child’s welfare.

The court in Lynn also advocated for the necessity

of this perception, stating “[s]upervision is routinely accomplished

through subordinates, and is no less supervisory if it does not in-

volve personal encounters with the children.”

The current statu-

tory amendment was added after the Lynn holding in order to

clarify the broadening scope of accountability for child

endangerment.

Similar to Lynn, Spanier argued on appeal that he was wrong-

fully convicted of child endangerment because the court had not

applied the appropriate child endangerment statute to his case.

Spanier based this argument on the notion that “state and federal

constitutions prohibit the government from imposing punishment

for conduct that was not criminal at the time of the conduct but was

later criminalized.”

Under this contention, Spanier argued the

court should have looked to the version of the child endangerment

statute in place at the time of his neglectful actions when consider-

82. See id. at 151 (reasoning that Lynn did not have to directly supervise chil-

dren to be found guilty; rather, Court found that there was still enough to convict

because he was “specifically responsible for protecting children from sexually abu-

sive priests.”).

83. See id. (discussing interpretation and application of statute).

84. See id. (providing reason for liability).

85. See Commonwealth v. Lynn, 114 A.3d 796, 798 (Pa. 2015) (finding that

“requiring supervision of the child’s welfare rather than of the child, the statute

endeavors to safe-guard the emotional, psychological, and physical well-being of

children”).

86. Id. at 824. (discussing supervisory role).

87. See Spanier, 192 A.3d at 151 (“In response, the General Assembly amended

§ 4304 to add . . . ‘or a person who employs or supervises such a person’” to those

who are responsible under child endangerment statute).

88. See id. at 145 (“In 2001, when the alleged conduct at issue here occurred,

the child-endangerment statute did not encompass someone who was employing

or supervising someone else who was supervising the welfare of a minor child. . .

To the extent [Spanier’s] child-endangerment conviction was based on his alleged

employment or supervision of someone else who was supervising the welfare of a

child, did the trial court err[?]”).

89. Id. (distinguishing his actions from criminal activity based on governing

criminal statute at time his actions occurred).

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ing whether he was guilty.

The activity under scrutiny in front of

the court occurred in 2001, and therefore, Spanier asserted the ver-

sion of the statute effective at the time of the incident did not in-

clude the clause “or a person who employs or supervises such a

person,” is the proper law to apply in his prosecution.

The Court

applied the Lynn decision, and concluded the question of whether

Spanier directly supervised Sandusky’s victims or anyone else who

interacted with the boys, was immaterial in determining his guilt.

The Superior Court further concluded that Spanier was guilty

of endangering the welfare of a child, regardless of which version of

the statute applied.

When citing relevant precedent to support its

decision, the court included excerpts from previous cases that em-

phasized the expansive applicability of the statute.

In its decision

of the Lynn case, the Supreme Court of Pennsylvania explained

that, while most statutes’ ambiguous nature is generally read in

favor of a presumption of innocence of the accused, the child en-

dangerment statute is an exception to the rule.

In support of its

decision, the Court explicitly stated:

[T]he statute [under review] is protective in nature, and

must be construed to effectuate its broad purpose of shel-

tering children from harm. . . The common sense of the

community, as well as the sense of decency, propriety and

90. See id. (noting applied version of statute did not come into effect until six

years after).

91. See id. (indicating that Spanier cannot be found guilty for something

which was not criminalized, and therefore, he should not be held to acting as if he

should have known such act was criminal).

92. See id. at 154 (“Here . . . there is no evidence that [Spanier] supervised

anyone who interacted directly with Sandusky’s minor victims. As we have already

explained above, the Lynn Court held that § 4304 applies to persons who supervise

a child’s welfare, not persons who supervise a child. The absence of direct interac-

tion between [Spanier], Shultz, or Curley and Sandusky’s victims therefore does

not preclude [Spanier’s] conviction under the pre-2007 version of § 4304 as con-

strued in Lynn.”).

93. See Commonwealth v. Spanier, 192 A.3d 141, 154 (Pa. Super. 2018) (“Re-

garding the EWOC conviction, we have concluded that the language added in

2007 or, more appropriately, the language not included in the pre-2007 version,

does not alter the result here.”).

94. See id. at 150 (“Specifically, the purpose of such juvenile statutes is defen-

sive; they are written expansively by the legislature to cover a broad range of con-

duct in order to safeguard the welfare and security of our children.” (quoting

Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015))).

95. See Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 2015) (“Generally

speaking, under the rule of lenity, penal statutes are to be strictly construed, with

ambiguities resolved in favor of the accused. In the peculiar context of EWOC,

however, we have held that the statute is protective in nature, and must be con-

strued to effectuate its broad purpose of sheltering children from harm.”).

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the morality which most people entertain is sufficient to

apply the statute to each particular case, and to individu-

ate what particular conduct is rendered criminal by it.

b. Time Left on the Clock: Statute of Limitations

Another defense Spanier presented in opposition to his convic-

tion was that the applicable statute of limitations had expired and,

therefore, he was precluded from receiving a guilty verdict.

was the case with the child endangerment statute, Spanier believed

the incorrect statute of limitations was applied during his trial.

This assertion was based upon two theories: (1) the subsection de-

tailing exceptions to the general statute of limitations was substan-

tially amended subsequent to the 2001 events being examined at

trial; and, (2) the defendant had not engaged in the classification

of activity necessary for an exception to the statute of limitations to

be considered.

Pennsylvania statute section 5552(a) provides that “prosecu-

tion for an offense must be commenced within two years after it is

committed” unless the crime committed is included in the statute’s

exceptions.

100

Currently, section 5552(c)(3) specifies that “[a]ny

sexual offense committed against a minor who is less than 18 years

of age any time up to the later of the period of limitation provided

by law after the minor has reached 18 years of age or the date the

minor reaches 50 years of age.”

101

The subsection continues to de-

fine “sexual assault” by listing a variety of pertinent offenses, in-

cluding “Section 4304 (relating to endangering the welfare of

96. Id. (explaining court’s interpretation of statute as broadly encompassing

acts that may not otherwise be criminalized under narrow reading of statute).

97. See Spanier, 192 A.3d at 146 (“The Commonwealth filed its complaint

against [Spanier] on November 1, 2012, more than eleven years after the February

9, 2001 offense and well outside of the general two-year limitations period of

§ 5552(a).”).

98. See id. at 147 (noting Spanier asserted prosecution as untimely).

99. See id. at 147–48 (reviewing Spanier’s arguments set out to avoid court’s

finding of prosecution as timely).

100. See id. at 146 (“If the period prescribed in subsection (a). . . has expired,

a prosecution may nevertheless be commenced for [exceptions].”); see also 42 Pa.

Cons. Stat. § 5552(c) (2014) (enumerating multiple exceptions to general statute

of limitations).

101. 42 Pa. Const. Stat § 5552(c)(3) (emphasizing inadequacy of two-year stat-

ute of limitations for offenses against minors); see also Spanier, 192 A.3d at 146

(providing manner of calculating this law’s statute of limitations).

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children).”

102

On appeal, Spanier argued the version of section

5552 effective at the time of the 2001 offense should have been

applied, rather than the current version.

103

The prior statute as-

serted the applicable statute of limitations exception was “for a sex-

ual offense committed against a minor less than 18 years of age,

prosecution could be commenced within two years after the vic-

tim’s 18th birthday.”

104

The lower and Superior Court, however,

did not find Spanier’s argument persuasive because the victim of

the 2001 incident had not yet surpassed eighteen by the time the

revised and more protective version of section 5552(c)(3) was

implemented.

105

At trial, the jury found Spanier guilty of misdemeanor child

endangerment, as opposed to the higher degree felony child en-

dangerment charge brought by the Commonwealth of Penn-

sylvania.

106

In order to convict for a felony offense of child

endangerment, the jury needed to find that Spanier engaged in a

“course of conduct,” which they did not.

107

Spanier incorrectly rea-

soned that this lack of “course of conduct” finding should bar his

conviction altogether.

108

However, Pennsylvania law does not sup-

port such reasoning given that a finding of a child endangerment

102. § 5552(c)(3) (informing various avenues one may be implicated under

crimes of sexual assault of minor); see also Spanier, 192 A.3d at 146 (highlighting

only offense listed in subsection relative to review of this case).

103. See Spanier, 192 A.3d at 144-47 (noting that current version of statute

took effect in 2007).

104. Id. at 147 (“Pursuant to the version of § 5552(c)(3) extant at the time of

the 2001 offense, therefore, the Commonwealth had until two years after the vic-

tim’s 18th birthday to commence this prosecution against [Spanier].”).

105. See id. (“At trial, the Commonwealth presented unchallenged evidence

that the victim was 10 to 12 years old at the time of his February 9, 2001 sexual

assault. Therefore, on January 29, 2007, when the current version of § 5552(c)(3)

took effect, the victim was no more than 18 years old. Because the existing statute

had yet to expire at the time of its amendment, the amended statute applies to this

prosecution.”).

106. See id. at 146 (“Established Pennsylvania law states a defendant can be

convicted of a crime that was not actually charged when the uncharged offense is a

lesser-included offense of the charged crime. As long as the conviction is for a

lesser-included offense, the defendant will have been put on notice of the charges

against him and can adequately prepare a defense.” (quoting Commonwealth v.

Houck, 102 A.3d 443, 449–50 (Pa. Super. 2014))).

107. See id. (“At trial the Commonwealth sought a felony conviction for

EWOC under § 4304(b)(1)(ii), which requires proof that the perpetrator engaged

in a course of conduct. . . The jury, however, found no course of conduct and

therefore found [Spanier] guilty of the lesser-included misdemeanor offense

under 18 Pa. Cons. Stat. § 4304(b)(1)(i).”).

108. See id. at 147 (“While it is true the jury’s rejection of a course of conduct

defeated the Commonwealth’s attempt to secure a conviction for EWOC as a fel-

ony, [Spanier’s] argument that the rejection of a course of conduct finding ren-

dered this prosecution untimely is misplaced.”).

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misdemeanor charge does not require the jury to find that the de-

fendant participated in a “course of conduct.”

109

Additionally, Spanier sought reconsideration of his conviction

on the basis of him not actually abusing the minors.

110

While the

statute of limitations exception does apply directly to sexual of-

fenses against minors, section 5552(c)(3) specifically cites sexual as-

sault as encompassing the child endangerment statute.

111

The

child endangerment statute lacks a requirement that the accused

must have been the actual abuser in order to be found guilty.

112

Moreover, when analyzing the child endangerment statute, the

court underscored its finding of the statute as one that is broad and

protective in nature, and therefore directed its interpretation in

favor of protecting children.

113

Further, the appellate court refer-

enced Pennsylvania law, which indicated that a statute articulated

with sufficient specificity will not be construed as ambiguous under

judicial review.

114

For these reasons, the appellate court affirmed

the correct statute of limitations was applied in the district court.

115

109. See Commonwealth v. Spanier, 192 A.3d 141 (Pa. Super. 2018) (noting

difference in elements that must be proven based on degree of conviction).

110. See id. at 149 (“[Spanier] also seeks to avoid the application of

§ 5552(c)(3) by arguing that he did not personally commit a sexual offense.”).

111. See id. at 146 (“Any sexual offense committed against a minor who is less

than 18 years of age. . . As used in this paragraph, the term ‘sexual offense’ means

a crime under the following provisions. . . Section 4304 (relating to endangering

welfare of children)” (quoting Pa. Cons. Stat. § 5552(c)(3) (2019))).

112. See § 4304(a)(1) (“A parent, guardian or other person supervising the

welfare of a child under 18 years of age, or a person that employs or supervises

such a person, commits an offense if he knowingly endangers the welfare of the

child by violating a duty of care, protection or support.”); see also Spanier, 192 A.3d

at 150 (“Furthermore, § 4304, by its clear terms, does not require sexual miscon-

duct on the part of the perpetrator.”).

113. See Spanier, 192 A.3d at 150 (“[W]e have held that the statute is protective

in nature, and must be construed to effectuate its broad purpose of sheltering

children from harm.”).

114. See id. (“[Spanier] would have us find statutory ambiguity where none

exists, a course of action not permissible under the rules of statutory construction.

1 Pa. Cons. Stat. § 1921(b) (‘When the words of the statute are free and clear from

all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing

its spirit.’).”).

115. See id. (“Because § 5502(c)(3) clearly lists EWOC as a sexual offense, and

because EWOC does not require the perpetrator to be the person committing sex-

ual abuse, [Spanier]’s argument fails.”).

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C. Defense Wins Championships: Responsive Revisions to

Pennsylvania’s Mandated Reporting Laws

1. The Referees: Required Reporters

Pennsylvania law mandates certain groups of individuals report

suspected child abuse and specifically enumerates which groups are

required to report instances of abuse.

116

Some individuals include

social service agency employees, school employees, foster parents,

and leaders of religious organizations.

117

Under the statute, those

obligated to report suspected child abuse must only do so if they

have “reasonable cause” to believe abuse is occurring.

118

Categorizations of those required to report under Pennsylvania

law were not always as broad as they are now.

119

Changes resulting

in this over-inclusivity have occurred in the last five years.

120

Previ-

ously, Pennsylvania statute section 6311(a) specifically included

school nurses, teachers, and administrators.

121

Notably, this version

of the statute did not include coaches or any school personnel

other than administrators, teachers, and nurses.

122

Currently, the

statute imposes the duty to report on any “school employee,” cast-

ing a wider net of responsibility throughout the institution and

hopefully resulting in less cases of child abuse going unreported.

123

The inaction of Spanier and others who had knowledge of San-

dusky’s behavior sheds light on the importance of both mandating

reporting by individuals who have knowledge of sexual misconduct

and compelling bystanders through a legal obligation to protect

116. See 23 Pa. Cons. Stat. § 6311(a) (specifying an exclusive list through use

of the word following in the state: “[t]he following adults shall make a report of

suspected child abuse . . . ”); see also Kelly, supra note 8, at

213 (“

It is notable that

Pennsylvania is currently one of 32 states that limits who is required to report sus-

pected abuse by including this list of ‘mandated reporters.’”).

117. See § 6311(a)(1)–(16) (providing examples of only four out of sixteen

categories listed as appointed as “Mandated Reporters”).

118. See id. (“The following adults shall make a report of suspected child

abuse. . . if the person has reasonable cause to suspect that a child is a victim of

child.”).

119. See Kelly, supra note 8, at

216 (“

In Pennsylvania, there have been several

proposed revisions to the statute enumerating mandated reporters of child abuse

since November 15, 2011 (notably 10 days after Sandusky was arrested).”).

120. See § 6311 (noting effective date of July 1, 2015).

121. See § 6303 (current version at 23 Pa. Cons. Stat. § 6311(b) (2015)) (ac-

centuating previously much smaller scale of mandated reporters).

122. See Kelly, supra note 8

216 (“

On [November 15, 2011], the Senate

proposed to add ‘school staff member,’ ‘school faculty,’ and ‘coach’ to

§ 6311(b).”).

123. See § 6311(a)(4) (“The following adults shall make a report of suspected

child abuse. . . if the person has reasonable cause to suspect that a child is a victim

of child abuse. . . [a] school employee.”).

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children.

124

The conversations had by members of the Penn State

administration behind closed doors represent the exact problems

associated with not reporting this type of behavior.

125

2. Throwing Flags: The Reporting Process

Pursuant to Pennsylvania statute section 6311(c), when a per-

son required to report suspected child abuse is acting in their “ca-

pacity as a member of the staff of a . . . school,” they must first act in

accordance with the “reporting procedures” detailed in section

6313.

126

The reporting procedures necessitate the mandated re-

porter to immediately make an oral or written report to Child Pro-

tective Services (“CPS”).

127

Further, the statute dictates that,

should someone choose to make an oral report, such reporter must

follow-up by submitting a written report within forty-eight hours of

the oral report to CPS.

128

Following the oral and written submis-

sions, the reporter must then “immediately notify the person in

charge of the . . . school” of the suspected abuse.

129

Once the per-

son in charge is made aware of the reporter’s suspicion, that person

is then tasked with ensuring the organization is cooperating ade-

quately in the investigation.

130

Similar to expanding the list of persons identified as mandated

reporters, Pennsylvania law has also significantly developed the pre-

scribed process for these reporters in attempt to reduce cases that

124. For further discussion of the Penn State administration’s inaction and

the consequences, see infra notes 40–62 and accompanying text.

125. For further discussion of the duty of care and the importance of report-

ing, see infra notes 78–98 and accompanying text.

126. See § 6311(c) (“Whenever a person is required to report . . . in the capac-

ity as a member of the staff of a medical or other public or private institution,

school, facility or agency, that person shall report immediately in accordance with

section 6313 . . . .”).

127. See § 6313(a)(1) (“A mandated reporter shall immediately make an oral

report of suspected child abuse to the department via the Statewide toll-free tele-

phone number . . . or a written report using electronic technologies . . . .”).

128. See § 6313(a)(2) (“A mandated reporter making an oral report . . . of

suspected child abuse shall also make a written report, which may be submitted

electronically, within 48 hours to the department or county agency assigned to the

case in a manner and format prescribed by the department.”).

129. See § 6311(c) (“Whenever a person is required to report . . . that person

shall report immediately in accordance with section 6313 and shall immediately

thereafter notify the person in charge of the institution, school, facility or agency

or the designated agent of the person in charge.”).

130. See id. (“Upon notification, the person in charge or the designated

agent, if any, shall facilitate the cooperation of the institution, school, facility or

agency with the investigation of the report. Any intimidation, retaliation or ob-

struction in the investigation of the report is subject to [penalties under Penn-

sylvania law].”).

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otherwise may have fallen through the cracks.

131

Most notably, re-

porters are now instructed to directly communicate with CPS.

132

Before its most recent amendment, section 6311 required reporting

to CPS in much more limited circumstances.

133

In the previous ver-

sion, only people “who, in the course of employment, occupation

or practice of a profession, [came] into contact with children” were

required to notify CPS of the suspected abuse.

134

The statute set

out a different approach for the remainder of those listed as “per-

sons required to report.”

135

Rather than file a report directly with

CPS, as well as a subsequent report with senior personnel at their

school, section 6311(c) instructed required reporters to simply tell

the person in charge of the school about the suspected abuse.

136

that point, the person in charge would “assume the responsibility

and have the legal obligation to report or cause a report to be made

. . . .”

137

3. Loss of Yardage: Penalties Imposed

A major distinction between required reporters and en-

couraged or voluntary reporters is the repercussions at stake for

failing to report an incident.

138

With the development of section

131. See Kelly, supra note 8, at

217 (“

The legislature also proposed revisions to

the reporting procedure . . . .”).

132. See id. (emphasizing CPS’s heightened role).

133. See id. at

215 (“

Under [Pennsylvania’s] current law . . . football coach Joe

Paterno . . . only had a duty to report to someone above him in the school’s

hierarchy.”).

134. See § 6311(a) (“Persons who, in the course of their employment, occupa-

tion or practice of their profession, come into contact with children shall report or

cause a report to be made in accordance with section 6313 (relating to reporting

procedure) when they have reason to believe, on the basis of their medical, profes-

sional or other training and experience, that a child coming before them in their

professional or official capacity is an abused child.”).

135. See § 6311 (2007) (current version at § 6311(c)) (referring to differences

between “general rule” and specifically described staff members’ obligations).

136. See id. (“Whenever a person is required to report . . . in the capacity as a

member of the staff of a medical or other public or private institution, school,

facility or agency, that person shall immediately notify the person in charge of the

institution, school, facility or agency or the designated agent of the person in

charge.”).

137. Id. (“Upon notification, the person in charge or the designated agent, if

any, shall assume the responsibility and have the legal obligation to report or cause

a report to be made in accordance with section 6313. This chapter does not re-

quire more than one report from any such institution, school, facility or agency.”).

138. See Anna Stolley Persky, The Penn State Scandal: Child Abuse Reporting Laws,

ASH

. L

. 23, 28 (2012) (“

Pennsylvania lawmakers . . . are looking at tougher

penalties for individuals who have a duty to report, but fail to do so.”).

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6311 came reforms to section 6319, which outlines potential penal-

ties required reporters face if they forego their legal obligations.

139

Pennsylvania has consistently used a tiered system to determine

the appropriate punishment for a required reporter neglecting

their reporting duty.

140

Originally, section 6319 treated an individ-

ual’s first failure to report equivalent to low-level crimes, such as

loitering and disorderly conduct.

141

Any violations following the

first offense were characterized as a third-degree misdemeanor.

142

The first reformation of section 6319 converted the penalties for a

first offense to a third-degree misdemeanor and for any subsequent

offenses to second-degree misdemeanors.

143

Presently, the statute

does not solely differentiate degrees of punishment based on the

number of violations committed.

144

There are now two subsections

detailing events in which a required reporter’s failure to disclose

child abuse may result in a felony charge.

145

One instance in which

a reporter may be charged with a felony is if the reporter “willfully

fails” to report child abuse they had “direct knowledge” of, and

such abuse amounted to at least a felony of the first degree.

146

The

139. See id. at 28

(“

Pennsylvania lawmakers are discussing changing the re-

quirements on to whom a report must be made. They also are looking at tougher

penalties for individuals who have a duty to report, but fail to do so.”); see also

§§ 6311, 6319 (noting effective dates of most recent versions are December 31,

2014 and July 1, 2015).

140. See § 6319 (regulating required reporters’ penalties consistently based on

number of times reporter had duty to report but did not).

141. See § 6319 (2007, 2014) (current version at 23 Pa. Cons. Stat. § 6311(b)

(2015)) (“A person or official required by this chapter to report a case of sus-

pected child abuse who willfully fails to do so commits a summary offense for the

first violation . . . .”); see also Summary Offenses in Pennsylvania,

MTY

. L

EGAL

ERVS

(Apr. 22, 2014), https://clsphila.org/learn-about-issues/dealing-summary-offenses

[https://perma.cc/4K62-ZUWA] (“A summary offense if the most minor type of

criminal offense in Pennsylvania, and is often called a ‘non-traffic citation.’ A con-

viction for a summary offense usually results in a fine.”).

142. See § 6319 (“A person or official required by this chapter to report a case

of suspected child abuse who willfully fails to do so commits a summary offense for

the first violation and a misdemeanor of the third degree for a second or subse-

quent violation.”).

143. See id. (“A person or official required by this chapter to report a case of

suspected child abuse or to make a referral to the appropriate authorities who

willfully fails to do so commits a misdemeanor of the third degree for the first

violation and a misdemeanor of the second degree for a second or subsequent

violation.”). This version became effective in 2007. Id. (noting date of

enactment).

144. See § 6319(a)(3) (“An offense not otherwise specified in paragraph (2)

[as a felony of the third degree] is a misdemeanor of the second degree.”).

145. See § 6319 (detailing penalties based on their corresponding offense

and/or degree).

146. See § 6319(a)(2) (“An offense under this section is a felony of the third

degree if: (i) the person or official willfully fails to report; (ii) the child abuse

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second way a reporter can be charged with a felony is by a showing

of repetitive failure to report child abuse.

147

Furthermore,

mandatory reporters may be subject to lesser-included charges of

misdemeanors in the first or second degree.

148

Additionally, the current version of section 6319 is the first to

address the statute of limitations for the offenses.

149

Prior to this

version’s enactment, it could be inferred that the general statute of

limitations would have been applied.

150

During the effective peri-

ods of the previous versions of section 6319, the statute of limita-

tions for bringing suit against an abuser for the physical assault of a

minor was five years after the child’s eighteenth birthday, and sub-

sequently extended to twelve years after the child’s eighteenth

birthday.

151

Accordingly, a mandated reporter who failed to report

suspected child abuse would not face legal punishment if the victim

did not disclose their abuse until after two years had passed.

152

The

Pennsylvania legislature acknowledged this potentially unsatisfac-

tory consequence and, in turn, included a statute of limitations pro-

constitutes a felony of the first degree or higher; and (iii) the person or official has

direct knowledge of the nature of the abuse.”).

147. See § 6319(c) (“A person who commits a second or subsequent offense

under subsection (a) commits a felony of the third degree, except that if the child

abuse constitutes a felony of the first degree or higher, the penalty for the second

or subsequent offenses is a felony of the second degree.”).

148. See § 6319(a)(3) (“An offense not otherwise specified in paragraph (2)

[as a felony of the third degree] is a misdemeanor of the second degree.”); see also

§ 6319(b) (“If a person’s willful failure under subsection (a) continues while the

person knows or has reasonable cause to believe the child is actively being sub-

jected to child abuse, the person commits a misdemeanor of the first degree[.]”).

149. See § 6319 (lacking any reference to statute of limitations).

150. See § 5552–5553 (2019) (providing statute of limitations of two years for

misdemeanors and thirty days for summary offenses).

151. See § 5552(c)(3) (“If the period prescribed. . . has expired, a prosecution

may nevertheless be commenced for. . . any sexual offense committed against a

minor who is less than 18 years of age any time up to the period of limitation

provided by law after the minor has reached 18 years of age.”); see also § 5552(b.1)

(“A prosecution for any of the following offenses . . . must be commenced within

12 years after it is committed . . . sexual abuse of children.”); § 5552(b) (“A prose-

cution for any of the following offenses must be commenced within five years after

it is committed. . . sexual abuse of children.”).

152. See Alyssa Choiniere, Local experts say shame, trauma delay reporting of child

sex abuse,

ERALD

TANDARD

(Aug. 19, 2018), https://www.heraldstandard.com/

new_today/local-experts-say-shame-trauma-delay-reporting-of-child-sex/article_

e8bbb195-099d-55ee-ac32-0e8c252c90cd.html (“It is common for victims to come

. . . for counseling and other services after the statute of limitations has passed[.]

Sometimes victims report sexual assault to the district attorney’s office beyond the

statute of limitations[.]”). Consider this untimely reporting, which, when applied

to previous versions of § 5552, already gave a child who had been sexually as-

saulted up until thirty years of age to report the abuse, as opposed to the mere two

years previously allotted for penalizing mandated reporters’ offenses (comparing

inconsistent attributions of time for offenses revolving around identical events).

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vision in the most recently enacted section 6319.

153

This provision

asserts that the statute of limitations for charging a mandatory re-

porter who neglects to report suspected child abuse may be based

on the statute of limitations of either the crime committed by the

abuser, or five years after the minor’s eighteenth birthday, which-

ever is greater.

154

D. Penn State’s New Play Book: The Freeh Report

Recommendations

Following the outrage that erupted once Sandusky’s actions be-

came public knowledge, Penn State’s Board of Trustees hired the

law firm of Louis Freeh, a former federal judge and director of the

FBI, to conduct an internal investigation.

155

Specifically, this inves-

tigation’s aim was to identify omissions and oversights within the

University’s hierarchy system of reporting and recognition of

abuse.

156

The report (hereinafter the “Freeh Report”) concludes

with recommendations for the University to implement in order to

ensure such failures will not be repeated in the future.

157

The Freeh Report began its description of the investigation’s

findings boldly: “The most saddening finding by the Special Investi-

gative Counsel is the total and consistent disregard by the most se-

nior leaders at Penn State for the safety and welfare of Sandusky’s

child victims.”

158

In the explanation of its findings, the report dis-

153. See § 6319(d) (containing a new subsection solely addressing statute of

limitations, effective December 31, 2014).

154. 23 Pa. Cons. Stat. § 6319(d) (emphasizing change in statute).

155. See Kelly, supra note 8, at 211 (“On July 12, 2012, Louis J. Freeh, a former

director of the F.B.I. hired by Penn State trustees, issued a report. . . explaining the

failures of top officials in the chain of command at Penn State.”); see also Will

Hobson, Six Years Later; Penn State Remains Torn Over the Sandusky scandal,

ASH

OST

(

Dec. 28, 2017), https://www.washingtonpost.com/graphics/2017/sports/

penn-state-six-years-after-sandusky-scandal/?utm_term=.2d04fb1af668 (“A former

federal judge who led the FBI from 1993 until 2001, Freeh had entered the lucra-

tive world of leading internal investigations for troubled organizations. This assign-

ment, which earned his firm $8.3 million, was his most high-profile case.”).

156. See Freeh Report, supra note 11, at 8 (“FSS was asked to perform an inde-

pendent, full and complete investigation of: the alleged failure of Pennsylvania

State University personnel to respond to, and report to the appropriate authori-

ties, the sexual abuse of children by former University football coach . . . ; the

circumstances under which such abuse could occur in University facilities or

under the auspices of University programs for youth.”).

157. See id. (“In addition, the Special Investigative Counsel was asked to pro-

vide recommendations regarding University governance, oversight, and adminis-

trative policies and procedures that will better enable the University to prevent and

more effectively respond to incidents of sexual abuse of minors in the future.”).

158. Id. at 14 (condemning Penn State administration for perpetuating

problem).

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cusses Spanier, Curley, Schultz, and Paterno’s failure to inquire fur-

ther about the 2001 incident.

159

The report further touched upon

their absence of empathy or regard for the child abused during the

incident, as well as the unrestricted and unsupervised access to the

University’s football facilities provided to Sandusky.

160

Addition-

ally, the report attributed blame to the Board of Trustees for

neglecting to supervise University officials, as well as exhibiting an

overall lack of awareness of reporting policies.

161

Freeh’s counsel provided the Board with one hundred twenty

recommendations and categorized them into eight target areas,

with an overarching goal of enhancing protections for children at

Penn State.

162

Among these target areas were “Penn State Culture”,

“Monitoring Change and Measuring Improvement”, “Board of

Trustees Responsibilities and Operations”, and “Programs for Non-

Student Minors and Access to Facilities.”

163

Further recommenda-

tions included creating an ethics council, decreasing the indepen-

dent power of University executives, establishing a way to track all

mandated employee training, promoting accessibility and encour-

agement to report concerns, and closely monitoring children par-

ticipating in youth programs on Penn State’s campus.

164

One of

the sanctions imposed on Penn State by the NCAA was a require-

159. Id. (criticizing their hands-off approach to reports of Sandusky’s

activity).

160. See id. at 14–15. (“[Spanier, Schultz, Curley and Paterno] exhibited a

striking lack of empathy for Sandusky’s victims by failing to inquire as to their

safety and well-being, especially by not attempting to determine the identity of the

child who Sandusky assaulted in the Lasch Building in 2001. Further . . . [they]

empowered Sandusky to attract potential victims to the campus and football events

by allowing him to have continued, unrestricted and unsupervised access to the

University’s facilities and affiliation with the University’s prominent football pro-

gram. Indeed, that continued access provided Sandusky with the very currency

that enabled him to attract his victims.”).

161. See id. at 15 (addressing Spanier, Schultz, Curley and Paterno’s actions,

made capable through being “unchecked by the Board of Trustees that did not

perform its oversight duties . . . .”).

162. See id. at 17–18 (“From the results of interviews . . . and benchmarking

similar practices at other large universities, the Special Investigative Counsel devel-

oped 120 recommendations for consideration by University administrators and the

Board . . . .These steps should assist the University in improving structures, policies

and procedures that are related to the protection of children.”).

163. See Freeh Report, supra note 4, at 17 (listing all eight areas for improve-

ment, and others of which were Administration and General Counsel Structure,

Policies and Procedures, Compliance Risk and Reporting Misconduct, Athletic De-

partment Integration and Compliance, and University Police Department Over-

sight, Policies and Procedures).

164. See id. at 127–44 (listing all 120 recommendations in one chapter, di-

vided into eight sub-chapters).

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ment to adopt all 120 of the recommendations presented in the

Freeh Report.

165

E. Benched and Berated: Responses and Repercussions

from the NCAA

The National Collegiate Athletics Association (“NCAA”),

founded in 1906, is the central agency for college athletics consist-

ing of over 1,200 university-level institutions.

166

In addition to the

commonplace issues faced when regulating collegiate athletics,

such as the hosting of events and determination of eligibility stan-

dards, the NCAA has tasked itself with holding the leagues, teams,

and players’ conduct and ethics to high standards.

167

Because the

NCAA regulates its member institutions, punishment primarily

arises out of an institution’s violation of or non-compliance with

NCAA promulgated rules.

168

The NCAA’s punitive response to the incidents at Penn State

was heavily criticized, with advocates on both sides of the argu-

ment.

169

The association’s involvement was heavily debated due in

165. See Brian L. Porto, Can the NCAA Enforcement Process Protect Children from

Abuse in the Wake of the Sandusky Scandal, 22 W

IDENER

L.J. 555, 576 (2013)

(“Indeed,

the first requirement that the corrective component of the NCAA sanctions im-

posts on Penn State is to ‘adopt all recommendations for reform delineated in

Chapter 10 of the Freeh Report.’”).

166. See id. at

558–59 (“

The NCAA is a voluntary association comprised of

more than 1,200 public and private four-year colleges and the athletic conferences

to which they belong.”); see also Vincent Nicastro, Deputy Commissioner for the

Big East Conference & Adjunct Professor for Villanova University Charles Widger

School of Law, (Jan. 23, 2019) (presenting on history of NCAA, which was initially

founded in 1906 as Intercollegiate Athletics Association and changed name to

NCAA in 1910).

167. See Porto, supra note 165, at 559 (“[The NCAA’s] stated mission is ‘to

maintain intercollegiate athletics as an integral part of the educational program

and the athlete as an integral part of the student body and, by doing so, retain a

clear line of demarcation between intercollegiate athletics and professional

sports.’ Accordingly, the NCAA is a regulatory body. It ‘regulates athletic competi-

tion among its members’ (for example, establishing game rules, eligibility stan-

dards for athletes, lengths of competitive seasons, etc.), ‘conducts championship

events . . . enters into television and promotional contracts relat[ed] to [those] . . .

events, and enters into agreements to license the NCAA name and logos.’”)

;

see

also Nicastro, supra note 166 (presenting on the history of the NCAA, providing its

“initial purpose of ‘the regulation and supervision of college athletics throughout

the US, in order that athletic activities . . . may be maintained on an ethical place

in keeping with the dignity and high purpose of education’”).

168. See Porto, supra note 165, at 559 (“As part of its regulatory role, the

NCAA investigates allegations of rules violations, adjudicates disputes arising from

those allegations and penalizes the guilty parties.”).

169. See Hobson, supra note 9 (regarding an executive’s criticism of the way

Penn State administration handled the scandal, “[w]hile some of . . . the trustees

nodded their heads in agreement, some of the remaining . . . rolled their eyes or

shook their heads in frustration. Some walked out”).

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part to a lack of precedent with similar situations.

170

Scrutiny faced

by the NCAA in this case primarily stemmed from the organization

pivoting from its customary practice to circumvent involvement

when allegations of criminal behavior are made against program

members.

171

Even when team doctors and student-athletes had

been accused of sexual assault, the NCAA unwaveringly took a

hands-off approach.

172

The NCAA’s past avoidance makes its in-

volvement in this case even more surprising.

173

While the broader

events implicated members of an NCAA institution’s coaching staff,

Sandusky was not a coach at the time of the McQueary incident and

no athletes were involved in the crimes as either abuser or victim.

174

Further, the role of the NCAA in administering sanctions against

teams has historically been confined to violations against the institu-

170. See Doug Lederman, The NCAA Crosses a Line,

NSIDE

IGHER

. (

Nov.

23, 2011), https://www.insidehighered.com/news/2011/11/23/ncaa-inquiry-

penn-state-unprecedented-involvement-criminal-matter [https://perma.cc/35SA-

NT8R] (criticizing NCAA for acting outside the scope of its governance in punish-

ing Penn State when NCAA regulations did not explicitly govern criminal behav-

ior); see also Porto, supra note 165, at 555–57 (“[T]he customary critique morphed

into a concern that the ad hoc procedure the NCAA used in the Penn State case

would become the Association’s standard enforcement process, or at least its estab-

lished emergency model, in the future.”).

171. See Lederman, supra note 174 (reviewing NCAA handling of Penn State

case).

172. See Cheyna Roth, The NCAA Tells Michigan State No Rules Violated in Larry

Nassar Scandal, NPR (Aug. 30, 2018, 5:37 PM), https://www.npr.org/2018/08/30/

643465851/the-ncaa-tells-michigan-state-no-rules-violated-in-larry-nassar-scandal

[https://perma.cc/7UMY-7VVU] (reporting on the NCAA’s finding zero viola-

tions against former Michigan State University’s team physician who has been

found guilty of sexually abusing over 150 women); see also Joe Drape and Marc

Tracy, A Majority Agreed She Was Raped by a Stanford Football Player. That Wasn’t

Enough,

N.Y. T

IMES

(Dec. 29, 2016), https://www.nytimes.com/2016/12/29/

sports/football/stanford-football-rape-accusation.html [https://perma.cc/6QUV-

CWP3] (quoting member of NCAA Commission to Combat Campus Sexual Vio-

lence, stating he did not see reason to suspend Stanford football player found to

have committed sexual assault); see also Anya Alvarez, The NCAA Must End Their

Silence on Sexual Violence in College Sports,

UARDIAN

(Jun. 15, 2018), https://

www.theguardian.com/sport/2018/jun/15/the-ncaa-must-end-their-silence-on-

sexual-violence-in-college-sports [https://perma.cc/K3EH-2V8F] (disclosing re-

ceipt of full scholarship by NCAA member institution University of Central

Oklahoma to football player who took plea for charge of rape against him).

173. See Roth, supra note 176 (discussing NCAA’s handling of Michigan

State); Drape & Tracy, supra note 176 (reviewing NCAA’s handling of Stanford);

Alvarez, supra note 176 (reporting on NCAA’s handling of Central Oklahoma).

174. See id. at

556 (“

[I]t involved no wrongdoing (for example, violation of

NCAA rules) by an athlete, unlike most college sports scandals, which feature ath-

letes accepting improper inducements to attend a particular college or under-the-

table payments after they enroll, or perhaps receiving passing grades for courses in

which they did no work or excessive academic assistance from tutors.”).

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tion’s own bylaws, rather than in response criminal activity.

175

Rather than utilize its normal adjudicative process, the NCAA relied

on the evidence and holdings presented in court to determine the

infractions and penalties appropriate for Penn State.

176

The NCAA

reasoned that their own proceedings would not have resulted in a

data compilation as extensive as the Freeh Report.

177

Following the NCAA’s response, Penn State and the NCAA en-

tered into a consent decree in July 2012, agreeing that the Freeh

Report presented findings of NCAA constitution and bylaws viola-

tions.

178

While the NCAA cited specific provisions of its founding

documents that were breached, the consent decree more generally

referenced broad expectations of NCAA institutions that were not

met by Penn State under the circumstances.

179

Specifically, the

175. See Hobson, supra note 9 (“The NCAA traditionally didn’t venture into

criminal matters at universities, instead dealing with rules violations within

athletics.”).

176. See Porto, supra note 165, at

574 (“

[T]he Supreme Court of the United

States has held that the NCAA is not a ‘state actor’ for purposes of the Fourteenth

Amendment, which means that it is not required to provide due process to institu-

tions and individuals accused of violating its rules.”); see also id. at 559–564 (“If the

NCAA decides to investigate, the president of the subject institution will receive a

‘notice of inquiry’. . . [t]he notice of allegations will notify the accused institution

of the alleged violations of NCAA rules uncovered by the enforcement staff . . . the

institution and accused individuals will have [ninety] days in which to respond . . .

[a]fter the institution responds, the parties attend a prehearing conference to

identify the issues . . . [a]n accused institution may choose not to contest the

charges against it, opting instead for ‘summary disposition’. . . [e]nforcement mat-

ters not resolved by summary disposition proceed to a hearing before the [Com-

mittee on Infractions] . . . during hearings, the COI considers allegations brought

by the enforcement staff, reviews documentary evidence and records of witness

testimony, makes factual findings, and imposes penalties if it concludes that viola-

tions have occurred[.]”).

177. See id. at

569 (“

[T]he need for an NCAA investigation was obviated here

by the evidence resulting from the criminal investigation of Sandusky by Penn-

sylvania authorities and from the investigative [Freeh] report . . . which Penn State

had commissioned. The Freeh Report was based on interviews with more than 430

persons . . . and on the analysis of more than 3.5 million pieces of electronic data

and documents. The NCAA would have been hard-pressed to match that degree of

thoroughness and, even if it had, its report likely would have been duplicative of

the Freeh Report.”).

178. See id. at 570

(“

Based on the findings of that [Freeh Report], the NCAA

and Penn State signed a consent decree dated July 23, 2012, in which Penn State

(1) acknowledged that facts found by the Freeh Report amounted to violations of

the NCAA’s constitution and bylaws and (2) accepted the consent decree and

waived any right it would otherwise have to an enforcement hearing before the

COI, an appeal . . . or judicial review of the subjects of the consent decree.”).

179. See id. at

573–74 (“

[I]n the Penn State case, reflecting the inapplicability

of NCAA bylaws to criminal behaviors . . . the findings reveal violations . . . of

general principles underlying the Association’s governance of college sports.”); see

also id. at 571–72 (“Noting that ‘[t]he NCAA seeks to foster an environment and

culture of honesty,’ the consent decree specifically referenced, as indicative of that

aim, Bylaws 10.01.1 (requiring coaches, athletes, and academic administrators to

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consent decree stated that Penn State “fail[ed] to value and uphold

institutional integrity demonstrated by inadequate, and in some in-

stances non-existent, controls and oversight surrounding the athlet-

ics program . . . .”

180

The consent decree continued by declaring

that Penn State exhibited “unethical conduct,” lacked maintenance

of “minimal standards of appropriate and responsible conduct,”

and failed to adhere to “fundamental notions of individual

integrity.”

181

Relying on the Freeh report, the NCAA accepted the conclu-

sion that Spanier, Schultz and Curley neglected to inform authori-

ties about Sandusky’s misbehavior “‘to avoid the consequences of

bad publicity’ for the University and its cherished football program

by ‘repeatedly conceal[ing] critical facts relating to Sandusky’s

child abuse.’”

182

The consent decree also partially attributed the

administration’s oversight of Sandusky’s abuse to the loyalty and ad-

miration exhibited towards Penn State’s football program.

183

Con-

sequently, the NCAA issued a variety of sanctions against the

University and football team.

184

Penn State feared the NCAA violations would result in the so-

called “death penalty,” which would cancel the next year’s football

season.

185

It is speculated that Penn State’s agreement to enter

‘act with honesty and sportsmanship at all times’); 10.1 (providing examples of

errors of omission or commission amounting to ‘unethical conduct’ under NCAA

rules); and 11.1.1. (. . . requiring athletic administrators and coaches to ‘act with

honesty and sportsmanship at all times’) . . . [T]hey violated Bylaw 19.01.2, which

requires employees associated with college athletic programs to model ethical be-

havior in order ‘for intercollegiate athletics to promote the character development

of participants to enhance the integrity of higher education [,] and to promote

civility in society.’”).

180. Id. at

570

(describing penalty rationale as holistic, rather than specific).

181. Id. at

571 (

explaining which provisions of NCAA rules were violated).

182. Porto, supra note 165, at 572 (discussing Spanier’s, Schultz’s, and

Curley’s intentional concealment).

183. See id. at

573 (“

Also contributing to that failure were . . . [a] ‘culture of

reverence for the football program that [was] ingrained at all levels of the campus

community’ at Penn State.”).

184. See id. at

575 (“

Like the process the NCAA followed in the Penn State

case, the penalties it imposed were somewhat unusual, particularly because they

included not only the customary punitive component, but a corrective component

too.”).

185. See Hobson, supra note 9 (“Rumors swirled that the NCAA was consider-

ing imposing the ‘death penalty,’ the cancellation of an entire football season.”);

see also Penalties – Frequently Asked Questions,

NCAA E

NFORCEMENT PROCESS

http://

www.ncaa.org/enforcement/enforcement-process-penalties [https://perma.cc/

W45D-4X9D] (last visited Jan. 28, 2020) (providing list of circumstances and ele-

ments NCAA considers when determining whether to give death penalty); see also

Eric Dodds, The ‘Death Penalty’ and How the College Sports Conversation Has Changed,

IME

(Feb. 25, 2015), https://time.com/3720498/ncaa-smu-death-penalty/

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into a consent decree, rather than participate in an NCAA investiga-

tion process, was principally decided in order to avoid the death

penalty.

186

Although Penn State successfully evaded the death pen-

alty, the football program was unable to escape harsh punish-

ments.

187

In addition to a sixty million dollar fine, the NCAA also

banned the football team from participation in any postseason

games for four years, decreased the amount of scholarship money

available for future players, and retracted the football team’s wins

from the first year the administrators were made aware of San-

dusky’s child abuse.

188

The reduction in wins was especially im-

pactful for Penn State football fans because it resulted in removing

Coach Paterno’s record as the “winningest” coach of college

football.

189

A lawsuit emerged when the NCAA rejected Pennsylvania

lawmakers’ request to spend the sixty million dollars from Penn

State in Pennsylvania.

190

This lawsuit generated unfavorable evi-

dence for the NCAA, including communications between NCAA

personnel about imposing punishment on Penn State solely to en-

hance the NCAA’s reputation, rather than punish the school for its

bad acts.

191

Additional documentation indicated that NCAA offi-

cials had not only failed to thoroughly review the Freeh Report, but

[https://perma.cc/6K58-JTRN] (detailing events surrounding NCAA’s creation

and first use of “death penalty” against Southern Methodist University for paying

its football players in 1987).

186. See id. (“Do whatever you need to do to keep the NCAA from giving us

the ‘Death Penalty,’ [one] trustee . . . wrote . . . . In response to alumni outrage,

[then University president] Erickson explained that NCAA officials had made

clear Penn State had no choice to avoid the death penalty. [President of the

NCAA] Emmert indicated that [Penn State’s] only chance to avoid a death penalty

along with sanctions might be to opt for a consent decree . . . . It was a take-it-or-

leave-it proposition.”) (internal quotation marks omitted).

187. See id. (“While Penn State leaders were relieved to avoid the death pen-

alty, some alumni seethed.”).

188. See Porto, supra note 165, at

575–76 (

recounting all punishments given

to Penn State).

189. See Hobson, supra note 9 (“[V]erdict capped an unimaginable downfall

for Paterno, who just eight months before seemed poised to retire as the win-

ningest, most respected head coach in the history of college football. In 46 years

as head coach, he had piled up 409 wins and two national championships . . . .”).

190. See id. (discussing spending clash between NCAA and Pennsylvania

lawmakers).

191. See id. (“One staffer, in an email, wrote that NCAA punishments for Penn

State would be unneeded and excessive, but ‘new NCAA leadership is extremely

image conscious, and if they conclude that pursuing allegations against PSU would

enhance the association’s standing with the public, then an infractions case could

follow.’”).

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had not reviewed the report whatsoever.

192

Ultimately, the NCAA

settled the case, agreeing to spend Penn State’s fine within the

state, as well as the restoration of the team’s wins.

193

III. D

RAFTING

LAYS AND

AKING

ROJECTIONS

: A

NALYSIS

A. Call Overturned After Replay Review: Applying Reformed

Pennsylvania Mandated Reporting Laws to the

Sandusky Scandal

To an uninterested third-party, it may seem as if the edits to

the Pennsylvania Child Protective Services statutes, particularly

those made to section 6311, consist of only slightly different ways to

convey the same ideas.

194

Analyzing the changes in light of the San-

dusky scandal, however, proves the revisions make an impactful

difference.

195

Although the negligent actions of Spanier, Curley, and Schultz

served as the basis for their prosecution, their punishments were

lenient in comparison to the extent of their involvement.

196

Previ-

ous versions of Pennsylvania law only designated Spanier, Curley,

and Schultz as “responsible for reporting” during the exchange of

information about the 2001 event, which was not an expansive

enough network to ensure protection.

197

Spanier’s, Curley’s, and

Schultz’s positions classified them as “school administrators,” and

therefore, each were reporters within the statute’s scope.

198

Mc-

192. See id. (“[NCAA executive committee chair] acknowledged he never ac-

tually read the report because he was vacationing in Hawaii at the time.”).

193. See id. (“In January 2015, the case settled. The NCAA agreed to spend the

money in Pennsylvania and reduced other sanctions, including restoring Paterno’s

win total to 409.”).

194. See § 6311 (2007, 2015) (comparing revisions of applicable statutory lan-

guage throughout different versions).

195. See Kelly, supra note 8, at

225 (

concluding that efforts of multiple state

legislatures to revise mandatory reporter statutes seek to “better protect children”

through “preventing a reoccurrence of a scandal like that involving Sandusky and

Penn State”).

196. See generally Hobson, supra note 9 (“Three former Pennsylvania State

University administrators, including former president Graham Spanier, were each

sentenced to serve at least two months in jail Friday for failing to alert law enforce-

ment about a 2001 incident involving retired football coach Jerry Sandusky and a

boy in the campus shower.”). For further discussion of the facts and the aftermath

of the 2001 event, see supra notes 45–56 and accompanying text.

197. See § 6311(a) (enumerating required reporters, which at time included

school administrators, but not school employees generally).

198. See id. (requiring any school administrator to report suspected instances

of child abuse); see also Commonwealth v. Spanier, 192 A.3d 141, 142 (Pa. Super.

2018) (providing title for Spanier (President), Schultz (Vice President for Finance

and Business), and Curley (Athletic Director)).

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Queary and Paterno, however, were not obligated to report because

school coaches and employees were absent from section 6311’s enu-

merated list.

199

Regardless, McQueary and Paterno followed the

chain-of-command reporting policy laid out for required reporters

in the statute.

200

The outcome of the events surrounding the Mc-

Queary incident proved Penn State’s hierarchical structure was

clearly insufficient to ensure the safety of children.

201

According to past Pennsylvania law, Curley and Schultz ful-

filled what was demanded of them under the statute by bringing

the report of suspected abuse to the university’s premier execu-

tive.

202

As the University’s President, Spanier alone was tasked with

expediting the report to CPS for inspection.

203

Conversely, had

the current version of section 6311 been effective, McQueary,

Paterno, Curley, Schultz, and Spanier all would have been legally

required to first and foremost report the suspected abuse to CPS.

204

Moreover, they each would have been responsible for complying

with the section 6313 standards in their reports to CPS to guarantee

the reported suspicion would be investigated.

205

Only after com-

pleting reports with CPS would McQueary, Paterno, Curley, and

Schultz have needed to adhere to the statute’s secondary measure

199. See § 6311(a) (requiring that any school administrator, but not any em-

ployee, coach or student, report suspected instances of child abuse); see also

Spanier, 192 A.3d at 143 (providing roles of Paterno and McQueary).

200. See § 6311(c) (instructing required reporters to inform their superiors of

suspected abuse); see also Spanier, 192 A.3d at 143 (detailing timeline of reporting

from each subordinate to their superior during February 2001).

201. See Spanier, 192 A.3d at 143 (“After speaking with Sandusky and

Raykovitz, Curley informed [Spanier] and Schultz that he had done so. Curley

never contacted [the Department of Welfare], Children and Youth Services, or the

police. Further, Curley did not inform campus police . . . .”).

202. See § 6311(c) (instructing school administrators to inform person in

charge of school of suspected abuse); see also Spanier, 192 A.3d at 143 (describing

Curley and Schultz’s disclosure to Spanier on February 12, 2001 regarding what

McQueary had witnessed three days prior).

203. See § 6311(c) (passing legal responsibility to the person in charge that

the required reporter notified: “Upon notification, the person in charge or the

designated agent, if any, shall assume the responsibility and have the legal obliga-

tion to report or cause a report to be made”).

204. See § 6311(a)–(c) (requiring school employees to report suspected child

abuse immediately to authorities — whether McQueary would have been required

to notify the State is dependent upon whether graduate assistant is considered

school employee or if they retain their student status).

205. See § 6313(a) (mandating that any reporter who makes oral report of

suspected abuse must also follow-up with written report within forty-eight hours of

their original report).

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of protection for the child by notifying their superiors of the sus-

pected abuse.

206

Further, the penalties faced by the mandated reporters would

have rightfully been much more excessive if the currently effective

statutes had been in place.

207

Today, Paterno, Curley, Schultz, and

Spanier would [each] have been charged with at least one felony of

the third degree for their involvement in ignoring Sandusky’s be-

havior.

208

Additionally, if the state could prove the reporters had

reason to believe Sandusky was still abusing children, it could have

charged the mandatory reporters with multiple third-degree felo-

nies under the “continuing course of action” section of the stat-

ute.

209

Lastly, the Pennsylvania Legislature’s implication of the

statute of limitations is detrimental to cases given that many in-

stances of child abuse are not reported within two years.

210

B. Left in the Dust: Absence of Justice for Sandusky’s

Subsequent Abuse Victims

While the changes to Pennsylvania’s mandated reporting laws

are a step in the right direction to protect children from abuse,

more still can, and should, be done to punish those whose igno-

rance left children in a vulnerable state.

211

Although these revi-

sions would have held Spanier, Graham, Curley, and Paterno more

accountable for the victim involved in the McQueary incident, the

four victims who were abused by Sandusky subsequent to that inci-

dent may not have been abused if Sandusky was immediately re-

ported in 2001.

212

206. See § 6311(a)–(c) (requiring school employees to report suspected child

abuse immediately to authorities, and thereafter notify person in charge of

school).

207. See § 6319 (comparing current and previous versions).

208. See id. (contrasting current and previous versions of statute).

209. See id. (discussing § 6319’s updated penalties).

210. See Pennsylvania Coalition Against Rape, PCAR urges legislators to remove

the statute of limitations for child sexual assault cases,

PA C

OALITION

GAINST

APE

(Aug. 14, 2018), http://www.pcar.org/news/pcar-urges-legislators-remove-statute-

limitations-child-sexual-assault-cases [https://perma.cc/UCG8-M3CA] (discussing

strong efforts towards eliminating statute of limitations for sexual assault of minors

because “[t]he experience of sexual assault often causes victims to feel confused,

scared, embarrassed, shamed and humiliated. When people who perpetrate abuse

also manipulate the naivete of youth, these feelings are exacerbated. This is why it

is normal for survivors of sexual assault to wait years and decades before telling

anyone what was done to them”).

211. See §§ 6311–19 (comparing previous version of statute to current

version).

212. See 18 Pa. Cons. Stat. § 3123 (2003) (defining involuntary deviate sexual

intercourse with minor as first-degree felony); see also 18 Pa. Cons. Stat.

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Currently, the mandated reporting laws have expanded penal-

ties imposed on mandated reporters to address instances in which a

child’s offender continues to abuse the child.

213

This portion of

the law provides liability for additional charges when “a person’s

willful failure . . . continues while the person knows or has reason to

believe the child is actively being subjected to abuse . . . .”

214

The

present provision limits the liability of the reporter in two ways: (1)

when a reporter “knows or has reasonable cause to believe,” and (2)

the abuse is being committed against “a child the reporter was

aware of.”

215

In order to protect future potential victims, the Pennsylvania

legislature should expand this provision to safeguard a broader au-

dience.

216

First, lawmakers should elaborate on what constitutes a

“reasonable cause to believe.”

217

In doing so, a per se rule should

be implemented to mandate a reporter who is aware of a child

abuse occurrence, but has not reported that person, or knows that

person has not faced investigation or prosecution by law enforce-

ment, should assume the abuse is continuing.

218

Under the current

law, this loophole works in favor of ignorance by the reporter, who

will have the ability to avert responsibility by claiming they had no

“reasonable cause to believe” the abuse continued to happen after

§ 106(b)(2) (1997) (“A crime is a felony of the first degree . . . a person convicted

thereof may be sentenced to a term of imprisonment, the maximum of which is

more than ten years.”); Commonwealth v. Spanier, 192 A.3d 141, 142 (Pa. Super.

2018) (“After speaking with Sandusky and Raykovitz, Curley informed [Spanier]

and Schultz that he had done so. Curley never contacted DPW, Children and

Youth Services, or the police . . . McQueary continued to observe Sandusky in the

Lasch Building after hours. Sandusky subsequently abused at least four more

young boys, including one in the Lasch Building shower in the summer of 2002.”)

(detailing timeline of Penn State officials discussing 2001 incident with one an-

other without bringing issue to authorities, followed by Sandusky’s continuation of

abusive behavior).

213. See § 6319 (discussing penalties for failing to report child abuse).

214. Id. (explaining statute’s imposition of liability for person exhibiting will-

ful ignorance of child abuse).

215. Id. (providing criterion that must be met to be held liable for inaction as

mandated reporter).

216. See Peter Garsden, Mandatory Reporting – The Legal Case for Change, 2 IALS

L. R

. 29, 32–35 (2014)

(discussing enhanced sentences for repeat offenders, but

not repeat ignorers).

217. See § 6319(b) (“If a person’s willful failure under subsection (a) contin-

ues while the person knows or has reasonable cause to believe the child is actively

being subjected to child abuse . . . .”) (emphasis added)).

218. See Zachary Myers, Enhanced Sentences for Repeat Sexual Offenders Against

Children, 63

U.S. A

’

. B

ULL

65, 65 (2015) (“

Furthermore, many offenders who

are identified and prosecuted have been previously accused or convicted of sexual

offenses involving minors.”).

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the first event.

219

It is in the best interest of public policy for any

suspicion whatsoever to be looked into by a reporter, rather than to

encourage those reporters to protect themselves by avoiding in-

volvement in the situation.

220

It is not uncommon for criminal offenders to have multiple

victims and Pennsylvania needs to revise its mandated reporting

statute to reflect this and expand its protection of children.

221

Spe-

cifically, Pennsylvania needs to address that, when a mandated re-

porter has reasonable belief that an adult is abusing a child, the

reporter must assume that child is not the offender’s only victim.

222

The implications of such a statutory requirement provide due pro-

cess that should be guaranteed to the abused.

223

Under this re-

vised, strict interpretation, victims whose abuse occurs subsequent

to the incident causing the mandated reporter’s reasonable belief

will be able to seek justice for the reporter’s silence, rather than

solely limiting such reconciliation to the victim involved in the inci-

dent.

224

The need for this type of rigorous standard was made ap-

parent in the Sandusky case, given that each of Sandusky’s victims

following the McQueary event could not bring action against the

reporters who could have protected them.

225

C. Changes to League Policy: A Call for the Adoption of

Federal Mandated Reporting Laws

The absence of federal legislation standardizing mandatory re-

porting laws on a national level contributes to gaps in reporting.

226

Just as various sports leagues leave punishment decisions for certain

219. See Garsden, supra note 216, at 32 (“The law is written so that someone

may report with suspicion only, not certainty but it appears that many do not be-

cause of a fear that they might be wrong.”).

220. See id. (noting mandated reporters who are suspicious avoid further

investigation).

221. See Myers, supra note 218, at 65

(“

Furthermore, many offenders who are

identified and prosecuted have been previously accused or convicted of sexual of-

fenses involving minors.”).

222. See id. at 65–67 (discussing enhanced sentences for repeat offenders, but

not repeat ignorers).

223. See Garsden, supra note 216, at

32–35

(reviewing due process concerns).

224. See id. (discussing mandated reporters).

225. For a comprehensive discussion of Pennsylvania’s mandated reporting

statutes and its relation to the Penn State Scandal, see supra notes 140–154 and

accompanying text.

226. See Leonard G. Brown III & Kevin Gallagher, Mandatory Reporting of

Abuse: A Historical Perspective on the Evolution of States’ Current Mandatory Reporting

Laws with a Review of the Laws in the Commonwealth of Pennsylvania, U.

ILL

. L. R

OLLE

EGE

37, 38 (2013) (

noting differences between strict versus lenient nature

of state statutes).

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types of misbehavior to the discretion of each team, federal law puts

each state in charge of drafting, effecting, implementing, and over-

seeing their own mandatory reporting laws.

227

Currently, the only

federal regulation addressing governing mandated reporting is the

Child Abuse Prevention and Treatment Act (“CAPTA”).

228

Rather

than resolve discrepancies between the states’ mandatory reporting

laws, CAPTA simply conditions a state’s receipt of federal funding

on its passage of legislation governing mandatory reporting.

229

Ever since the extent to which child abuse goes unreported

and unprosecuted has gained public attention, there have been

calls for consistency in mandated reporting laws through the enact-

ment of a federal statute.

230

However, each attempt to adopt such a

law has been unsuccessful.

231

The implementation of a federal law

governing mandatory reporting would not only eliminate confu-

sion, but, more importantly, would set a minimum standard for

each state.

232

Setting this bar would be vital given that some states

only provide basic regulations for child protection through report-

ing, and such low requirements are adverse to safeguarding

minors.

233

D. More Than Just Jerseys: Uniform Mandated Reporters

Because of a lack of uniformity throughout the states, reports

of suspected child abuse are often times missed because it is un-

227. See id. at 42 (“As Justice Louis D. Brandeis opined, one of the benefits of

federalism is that states can act as laboratories of experimentation. Left to their

own devices, states can craft different solutions to the same problem and imple-

ment them in order to achieve the best possible system.”).

228. See id. at 37–38 (“The federal government’s first major foray into the

area of child abuse prevention occurred on January 31, 1974, when Congress en-

acted the Child Abuse Prevention and Treatment Act (CAPTA).”).

229. See id. at 38 (“CAPTA has no federal mandatory reporting provision, but

rather requires states to pass their own mandatory reporting provisions in order to

receive federal grants.”).

230. See id. at 45 (“Justice Department findings that [ninety] percent of all

child abuse cases do not go forward to prosecution.” (citing The Treatment of Child

Abuse Allegations and Victims in the Judicial and Victims Services System: Hearing Before

the Committee on the Judiciary, 101st Cong. 2 (1989)) (referring to statement of Sena-

tor Harry Reid)).

231. See id. at 46 (“[T]he 101st Congress decided ultimately not to adopt a

federal mandatory reporting provision and continue to abdicate the issue to the

states.”).

232. See Brown & Gallagher, supra note 226, at 44 (“CAPTA does not have a

federal uniform provision about mandatory reporting because the drafters of

CAPTA decided that it was not purposed to create a federal strategy to deal with

child abuse in its totality.”).

233. See id. at 38 (“[T]he least comprehensive statutes require on a small list

of named professional groups to report.”).

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known who possesses legal responsibility for the reports.

234

Follow-

ing the Sandusky scandal at Penn State, Pennsylvania reformed its

statute to include a greater number of categories of adults responsi-

ble for reporting suspected abuse.

235

Pennsylvania was not the only

state to respond this way, as bills in many other states were initiated

soon thereafter.

236

Because each state is responsible for adoption

and implementation of their own mandated reporting laws, there is

no ultimate authority advising the states regarding which categories

of adults must be considered mandated reporters.

237

While some

states are extremely broad in their inclusivity, others narrowly tailor

their legislation.

238

Although efforts to institute federal legislation regulating man-

dated reporting have fallen short, defining the persons legally re-

quired to report is only one part of a multi-faceted regulatory

issue.

239

Providing uniform characterization of groups of adults re-

sponsible for reporting suspected child abuse would not only be

helpful, but should be necessary.

240

Furthermore, all adults should

be designated as mandatory reporters.

241

Multiple inconsistent and

conflicting versions of the statute lead to confusing responsibilities

234. See id. at 55 (“[Senator Bob Casey] proposed the legislation to close a

loophole that allows abusers to get away with heinous crimes and emphasize the

responsibility of all adults to protect children from abuse and neglect.”) (internal

quotation marks omitted).

235. For a further discussion of Pennsylvania’s mandated reporting laws, see

supra notes 116–154 and accompanying text.

236. See Brown & Gallagher, supra note 226, at 50–51 (“Although the scandal

erupted in Pennsylvania, the fury over Sandusky’s high-profile abuse has spread

beyond the borders of the Commonwealth, affecting change across the nation.”);