Friday, November 11, 2011

Joe Paterno and the Duty to Act

In the wake of the sad news coming out of the sexual abuse scandal at Penn State, it seemed time to address when not acting can be a crime. This is a difficult topic because it is usually brought up in the form of a victim or his family wondering why someone didn't aid the victim.

Criminal statutes are in place to punish those who act outside of society's guidelines. They are generally unhelpful in the situation when a person chooses not to act because there are only few laws requiring people to act in a given situation.

This is different from any moral obligation a person may feel. But the law does not allow for prosecution of a person who watches another person drown in the swimming pool without helping or a hundred different situations. Most of the time, the public's moral outrage cannot translate into criminal charges.

There are exceptions. In Vermont and Minnesota persons at an emergency scene have a duty to aid others if there is no danger to themselves. If not, they are faced with fines or jail. The statutes also limit the ability of the injured party to sue the good samaritan who renders aid. Many states have taken this step to limit liabilities for people trying to help as we've all heard horror stories about the samaritan getting sued by the victim.

Some people have a duty to act solely based on their occupation. In New York, teachers, social workers, prosecutors, police officers, doctors, nurses, and others have a duty to report suspected child abuse or neglect to the proper authorities. Failure to report is a misdemeanor punishable by up to one year in jail.

What about a parent who neglects their child so much to the point that the child starves to death? A doctor in a roadside accident who does not acknowledge his training and does not offer assistance? EMTs on their lunch break choosing not to help a pregnant woman having a seizure?

When a parent or legal guardian fails to control a child and the child becomes abused or delinquent as a result, the parent or guardian can be charged with a misdemeanor called "endangering the welfare of a child" or a felony if they abandon the child.

In certain situations, a person's inaction can be considered criminally negligent, but these cases are only prosecuted if a person dies, and only if the inaction is so egregious that it was a direct cause of a person's death. You can imagine how difficult these cases are to prosecute. Otherwise, there is no duty to act in New York.

This is different than civil liability. A person may get sued for inaction, but this isn't a blog about civil law.

So did Joe Paterno or his superiors have a duty to act? Did the graduate assistant have a duty to stop the abuse when he saw it? In looking at Pennsylvania law, it appears the school officials had a duty to report the abuse within 48 hours of it occurring. Also, as I understand, the college never reported these crimes as part of their required criminal activity report.

As for Joe Paterno, it would seem the question is whether he is a school administrator or teacher under Pennsylvania law. The graduate assistant doesn't appear to have a legal duty to do anything.

So, as in all legal questions, whether you have to act or not depends on who you are, where you are, and the situation. We should all remember to keep the victims in our thoughts and prayers. They should be the focus of this case.

My prediction is that criminal charges are not done and a major civil suit is just beginning. What do you think? Should more people be held accountable for their failure to act? What about the off-duty EMTs in the article above?


  1. I'm so glad you posted on this. This is in our local news practically 24/7. It has been keeping me up nights actually, the thought that the grad assistant walked in on a child rape and did nothing to stop it or at the very least, call the police immediately. I don't know how he lives with himself. To me it is the equivalent of walking down the street, seeing someone being stabbed to death and going on your merry way. Of course as you pointed out there is a huge difference between a criminal act and a criminal act where someone actually dies. I think that people should be held more accountable but I do understand that helping others in a situation where you, yourself could be injured or killed is a tough issue. You can't expect everyone to throw themselves in harm's way. I know there are all kinds of civil liability issues--people in this society are so litigious. On the other hand, I really feel that as a society we have a duty to protect children who do not have the means to protect themselves. I think there should be some kind of law at the very least in terms of children. If you see a child being harmed and you take no action whatsoever, you should be held criminally culpable. Even if you don't leap into the fray, call the police!!!! But I know that what actually happened at PennState in terms of the grad assistant is more of a moral issue than a criminal issue. Still, it is just unfathomable to me that someone could walk in on something like that and literally do nothing. I wonder what that child thought. Anyway, you make excellent points. This is a great post!

  2. This is a difficult subject to be unbiased on. To think that so many people did nothing to prevent it, stop it while it was happening, or to report it is abhorrent. That they let Sandusky use school facilities and run an underprivileged children's charity even after these reports is unbelievable. Hopefully, they expand the types of people required to report these incidents, increase education, and require direct reporting to the police.