Nov
09

(Updated) Not So Fast On Joe Paterno

Pennsylvania lawyers are no doubt sitting by their phones, hoping that someone will call to report that they, too, were a victim of Jerry Sandusky’s lust. There’s great money to be made in claims of child sex abuse. Just ask the Catholic Church, which has paid claimants in a series of high-price settlements of child-sex claims. Big institutions have deep pockets and public relations departments that care about image.

Sandusky was for many years defense coordinator for the football team at Pennsylvania State University. He retired in 1999, but retained an office and full access to campus athletic facilities. He also was a principal in a charitable enterprise call the Second Mile. The group’s goal was to provide opportunities to disadvantaged children.

According to a report from a Pennsylvania grand jury, Sandusky is also a pederast. He used Penn State’s facilities to sexually assault at least eight young boys, and was once observed sodomizing a child in the showers. Shocked university employees reported what they saw to their superiors, who apparently neither investigated the claims in any meaningful way, nor suggested to Sandusky that he avoid the campus for his future trysts.

Sandusky now faces criminal charges. Two senior Penn State administrators are now charged with perjury for lying to the grand jury investigating this sordid mess. And the world is calling for head coach football Joe Paterno to resign. Paterno, the headhunters say, should have done more. He stood by while boys were abused.

Joe Paterno is a legendary presence in college football. He has won more games  as a head coach than anyone else in the history of Division I football. At 84, he has been at the Penn State helm for decades. When other big-time college football programs transformed themselves into little more than forced-labor camps for NFL-wannabes, Paterno insisted his athletes go to class. Until recently, he was regarded as one of the good guys.

All that is at risk now. The university is rumored to be discussing how to ease him out. While students protested on campus last night to show support for JoePa, editorialists at various Pennsylvania newspapers have called for his resignation. The white-hot flames of hysteria have been fanned, and now threaten to consume all they touch.

One needn’t condone child molestation to defend Joe Paterno, or at least to insist that proof be marshaled that he should be run out of town on a rail. 

Pennsylvania state police commissioner Frank Noonan asserts that Paterno fulfilled his legal duty by reporting what he had been told about Sandusky’s behavior to senior university officials. There is no claim Paterno broke the law. But Noonan, a police officer, claims Paterno violated a moral duty by not going to the police himself. “I think you have a moral responsibility to call us.”

Noonan is playing to the peanut galleries in a dangerous way. Police officers aren’t social workers, moral theorists, or, God help us, priests. Their work is not the care of souls. Theirs is the mundane work of enforcing penal codes, not moral codes. When I hear a police officer state that I have a moral duty to cooperate with them, I shudder. I don’t want a man with handcuffs and a billy club policing my conscience. Police officers, never let us forget, are trained that it is all right for them to lie and to deceive to enforce the law. They come to the enforcement of the law with unclean hands.

The law demonizes those who commit sexual offenses against children. In Pennsylvania, for example, there is a special statute of limitations for child sex claims. A complaining witness has until their fiftieth birthday to come forward. 

I suspect many young, and now not so young, men will now claim victimhood. And if the civil litigation on behalf of children abused by priests is any guide, there will be great expectations about what there is to be gained by coming forward.

But unlike the Church, which paid untold millions to settle claims, the state of Pennsylvania is not obliged to pay one red cent, even though senior university administrators knew, or should have known, their campus was being used as sodomite’s retreat. That’s because the university is a state entity. It enjoys sovereign immunity from claims for money damages.

So here is where the moralizing at Penn State confronts an acid test. Does the board, does the state legislature, believe the university failed to act in a way that caused harm? Then let it set aside $100 million or so from the university’s endowment to pay the inevitable claims, and waive a defense of sovereign immunity when plaintiffs’ lawyers start filing writs. That would be putting their money in the general vicinity of their mouths.

Or will the university and the state take the cheap and easy route: castigating anyone within arm’s reach of Sandusky, but holding on to every red cent the school’s football program generated? 

I am not sure Joe Paterno needs to be crucified on a cross of self-righteous indignation. I worry that doing so is mere symbolism, a cheap substitute for real accountability by the officials at what I cannot help but call Sodom State. I’m still rooting for JoePa, although with reservations. I hope he will at least be permitted to complete this season and that he will then be given a chance to clear his name in formal hearings. He is entitled to that much. He did not assault a child.

[AP sources report that Paterno has decided to retire at the end of this season. The university should honor his decision, and not force the issue.]

Let's see how true the moral compass at Sodom State.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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