Sunday, November 13, 2011

Joe Paterno, Mike McQueary, Jerry Sandusky. Is "Failing to Report" a Crime?

The recent Penn State scandal has been examined 6 ways from Sunday by the press.  Rather than re-hash all of the factions of the Penn circus, this blog post will focus on one particular issue.  In Kentucky, does someone who witnesses child abuse have an obligation to report it?

The question conjures all sorts of philosophic debate concerning the deeds of "bad" people versus the apathy of "good" people.  Is it ok to say nothing if you didn't harm anyone, personally?  Is someone who refuses to report child abuse causing some sort of abuse by failing to report?  Does it "encourage" future abuse?

Bear in mind whilst we analyze the Penn State situation that everyone is innocent until proven guilty.  I have no idea whether the allegations are true or not, and this blog isn't meant to condemn anyone or suggest that someone has, in fact, committed any crime.

That being said...

One of the most shocking accounts detailed in the grand jury report of the Penn State case stems from the testimony of Mike McQueary.  McQueary is one of Paterno's assistant coaches.

On March 1, 2002, McQueary claims to have seen Sandusky having anal sex in the Penn State locker room shower with a boy who appeared to be about 10 years old.  McQueary said he went to the facility around 9:30 p.m. to put shoes in his locker and pick up some recruiting tapes. He testified he heard "rhythmic slapping sounds" coming from the showers. When he looked in that direction, McQueary said, Sandusky and the boy also saw him.  McQueary went to Paterno's house the next day and "reported what he had seen," the report says.

Let’s take a look at Kentucky law.  If the situation alleged above actually happened at a Kentucky University, would any of the people involved have a legal obligation to report the child abuse?  For today’s conversation, we will assume that the aforementioned account is true and complete.

KRS 620.030 governs the duty to report dependency, abuse or neglect.  The first subsection starts with the following sentence: “Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's attorney or the county attorney; by telephone or otherwise.

So immediately, we can tell that the law on this subject is clear.  If the Penn State allegations were true, and occurred in Kentucky, we know that not only McQueary, but also Joe Paterno, and anyone else McQueary informed, would have an affirmative duty to report the child abuse to local or state law enforcement, the Cabinet for Health and Family Services, or a prosecutor in their area.

I’ll have to admit that I was wrong on this issue.  Before I did today’s (admittedly limited) research, I assumed nobody would have a duty to report this kind of crime unless they were in a position of trust and authority like a teacher, foster parent, etc.  However, the first sentence of KRS 620.030 is very clear that the obligation to report applies to “Any person,” not just those in special positions of trust and authority.

But what about consequences?  What sort of penalty does the failure to report carry?

Subsection (5) of KRS 620.030 states, “Any person who intentionally violates the provisions of this section shall be guilty of a: (a) Class B misdemeanor for the first offense; (b) Class A misdemeanor for the second offense; and (c) Class D felony for each subsequent offense.

A class B misdemeanor carries a penalty of up to 90 days in jail and a fine.  So, if the allegations are true, and assuming this was the first time McQueary had any indication that Sandusky was abusing children, and if they were in Kentucky, McQueary and Paterno would be looking at up to 90 days in jail for failing to report the abuse to the proper* authorities.

If you have any more questions on this area of law, feel free to call me.

Gruner & Simms, PLLC.
Results.  As fast as the law will allow.

*Note that “head coach” is not one of the authorities listed in KRS 620.030.  So McQueary’s report would have been inadequate unless he actually contacted one of the proper authorities.

Questions answered in this blog post:  In Kentucky, is failing to report child abuse illegal; is failing to report a crime a crime in itself; what are the criminal charges in the Penn State scandal; can Joe Paterno be charged with criminal charges; can Mike McQueary be charged with criminal charges; were the coaches who knew about the alleged child abuse from Jerry Sandusky supposed to report the child abuse; what is the penalty in Kentucky for failing to report child abuse; how do I find a good Louisville criminal defense lawyer; how do I find a good Louisville child abuse lawyer?

1 comment:

  1. Just had a debate about this last night. Good to know!