I agree that calling police was a rational option.
However, I disagree with your last sentence, "But the idea that to do so would have been wrong or impossible, or breaking some rule is not reasonable."
There is at least one argument that illustrates that calling police may have broken protocol unless certain other things happened first. And I admit this argument gets pretty messy and nuanced. Bear with me.
It's important to highlight one of the key differences between the 1998 and 2001 incidents. In 1998, a mother got concerned after hearing her son showered with Sandusky so she first contacted her son's therapist (Dr. Chambers) to make sure she wasn't nuts, and then she contacted Penn State police (and Chambers made a Childline report). In 2001, the Child was not identified. There was no complaining parent, guardian, or child.
The next important thing to highlight is Paterno's last public words - his response to the last question in his interview by Sally Jenkins on 1/13/2012:
http://www.washingtonpost.com/wp-srv/special/sports/paterno-interview/
JENKINS: Again, why didn't you follow up more (in 2002)?
PATERNO: I was shocked. And then I got pretty sad. I didn't know exactly how to handle it and I was afraid to do something that might jeopardize what the University procedure was. So I backed away and turned it over to some other people, people I thought would have a little more expertise that I did. It didn't work out that way.
Paterno said he was afraid to jeopardize what the University procedure was.
If you're like me, then you might wonder what procedure Paterno was talking about.
There were multiple investigations that should have uncovered those procedures:
- The Department of Education's Clery Act investigation
- The internal investigation initiated by Erickson appointing an ethics officer to review all procedures
- The NCAA's investigation in which they specifically asked Penn State what procedures were or were not followed
- Freeh's independent investigation in which he claimed to have reviewed all procedures
Any guesses as to which if any of the above investigations publicized their findings with respect to what procedure Paterno might've been afraid to jeopardize?
If you're thinking none of them, then you're right. I hope you're also wondering why that's the case. You'd think someone what have the intellectual curiosity to dig into what Paterno might've been talking about. Freeh even quoted Paterno's response above to Jenkins in his report - once in the executive summary at page 16, and again in the body of the report at page 77.
There was exactly one Penn State policy that addressed sexual assault in February 2001. Policy AD12, titled "Sexual Assault."
Before I get into that in more detail, here's some background on the various investigations that should have uncovered this. To be fair, Freeh included AD12 in a list of relevant policies at page 36 in his report, but he provided no analysis of it or even a copy.
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Clery Act Invetigation, Letter from Department of Education, 11/9/2011
http://www.psu.edu/ur/2011/DoE_Letter_110911.pdf
Among the items the DOE requested from Penn State:
2. A copy of the catalog and student handbook for the University and for each separate College, school, division, or location within PSU for the academic years 1998-2011; Indicate (flag/tab) the specific portion or location that relates to the Clery Act.
6. The relevant portion of any applications, brochures, disclosures, forms, and other publications related to the Clery Act that is normally distributed to 1) prospective students; 2) prospective employees; 3) first-time students; and, 4) new hires of the University and all Colleges, schools, etc. within PSU that address campus crime and campus security;
In theory, procedures related to sexual assault, suspected sexual assault, and any procedures related to the Clery Act would have been provided by Penn State to the DOE.
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Erickson’s ethics officer was supposed to review all policies, 11/11/2011
http://news.psu.edu/story/153710/20...erickson-shares-promises-penn-state-community
Among Erickson's promises to the Penn State community:
We will revisit all standards, policies and programs to ensure they meet not only the law, but Penn State's standard. To oversee this effort, I will appoint an Ethics Officer that will report directly to me.
And:
Penn State is committed to transparency to the fullest extent possible given the ongoing investigations. I commit to providing meaningful and timely updates as frequently as needed.
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NCAA letter to PSU (from Emmert to Erickson), 11/17/2011
http://www.psu.edu/ur/2011/NCAA.pdf
Among other things, the letter outlined four questions for PSU to answer by December 16, 2011, providing them 30 days to prepare answers. Among the questions asked:
2. How has Penn State exercised institutional control over the issues identified in and related to the Grand Jury Report? Were there procedures in place that were or were not followed? What are the institution’s expectations and policies to address the conduct that has been alleged in this matter upon discovery by any party?
4. What policies and procedures does Penn State have in place to monitor, prevent and detect the issues identified in and related to the Grand Jury Report or to take disciplinary or corrective action if such behaviors are found?
Indeed these questions are relevant in understanding what happened. As it turns out, PSU did request a delay in answering them until after Freeh’s report was released. In pressers after the Freeh report came out, Erickson mentions that it's time to answer the NCAA questions, and Emmett mentioned he was looking forward to getting the answers (since the Freeh report didn't answer them).
The topic of this letter came up in quite a few depositions in the Corman vs NCAA litigation (including Rodney Erickson, Gene Marsh, Mark Emmert, Donald Remy, David Berst and Bob Williams).
During sanction negotiations, this letter was set aside, apparently by agreement between Emmett & Erickson. Penn State never answered the questions in that letter.
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Frazier provides update on Independent Investigation, 1/20/2012
http://news.psu.edu/story/152386/2012/01/20/frazier-provides-update-independent-investigation
The following are partial remarks by Kenneth Frazier from the Jan. 20, 2012 Board of Trustees meeting:
In addition to working to uncover what occurred in the past, Judge Freeh and his team are thoroughly studying, reviewing and testing all of the University’s policies, procedures, compliance and internal controls relating to identifying and reporting of such sex crimes or misconduct. This examination includes, among other things, any failures or gaps in the University’s control environment, compliance programs and culture which may have enabled the alleged misconduct to occur, go undetected, and not be reported and addressed promptly and properly.
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Frazier provides update on Special Investigation Task Force, 5/4/2012
http://news.psu.edu/story/149114/20...ides-update-special-investigations-task-force
Freeh’s team also is reviewing all University policies, procedures and controls related to identifying and reporting sex crimes and misconduct, including failures or gaps that may have allowed alleged misconduct to go undetected or not be promptly reported and addressed.
The above is a condensed version of Freeh's remarks at the 5/4/2012 Board of Trustees meeting, at page 8 of the minutes:
http://www.psu.edu/trustees/pdf/may2012minutesbot.pdf
Additionally, as I previously have reported, besides working to uncover what occurred in the past, Judge Freeh and his team are thoroughly studying, reviewing and testing all of the University's policies, procedures, compliance and internal controls relating to the identifying and reporting of such sex crimes and misconduct. This examination includes, among other things, any failures or gaps in the University's control environment, compliance programs and culture which may have enabled the alleged misconduct to occur, go undetected, and not be reported and addressed promptly and properly.
So here we have Frazier promising his fellow board members and the Penn State community that Freeh would be conducting a comprehensive review and test of all university proceedures, to include a procedural gap analysis.
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Freeh's Press Release, 7/12/2012
http://www.psu.edu/ur/2012/Press_Release_07_12_12.pdf
Here is part of Freeh's press release on the day his report was released:
In our investigation, we sought to clarify what occurred, including who knew what and when events happened, and to examine the University's policies, procedures, compliance and internal controls relating to identifying and reporting sexual abuse of children.
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Freeh Report – What did it say about whether procedures were followed in 2001?
Freeh’s focus on PSU policies is largely centered on the Clery act compliance and the fact PSU did not have formal policies in place to ensure compliance with the Clery Act.
What Freeh failed to do was examine what policies were in place that Paterno might have consulted.
The Freeh Report, at page 36, listed AD12 in the list of relevant procedures. But it made no further mention of it. And he made no mention of the Sexual Assault Protocol.
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Freeh Claims to Have Performed Detailed Legal Analyses on the Clery Act and PA reporting requirements, 6/6/2016
Penn State's and Pepper Hamilton's Joint Memorandum of Law in Support of Privilege Claims in Paterno vs. NCAA
http://co.centre.pa.us/centreco/media/upload/PATERNO VS NCAA PEPPER HAMILTONS JOINT MEMORANDUM OF LAW IN SUPPORT OF PRIVILEGE CLAIMS.pdf
At page 5:
... the Freeh Report also contains detailed legal analyses of the Clery Act ...
The detailed legal analyses of the Clery Act provisions in the Freeh Report amounted to three pages (p.112-114) summarizing just four provisions of the Clery Act. This was hardly "detailed legal analyses".
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Penn State received the Department of Education's Clery Act Report, 11/3/2016
http://news.psu.edu/story/435576/20...receives-clery-report-us-department-education
In response to the Clery report, University leaders issued a statement that reads in part:
Penn State provided the federal government with unfettered access to all requested information in the Department of Education review. This review, in scope and duration, is unprecedented by the Department of Education. The review is focused on past incidents, policies and procedures from 1998-2011.
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The Clery Act Report makes no mention of policies in effect in 2001
https://studentaid.ed.gov/sa/sites/...center/cleryact/pennstate/PSCFPRD10327991.pdf
The Clery Act report on Penn State makes no mention of the specific policies that were in effect in 2001. However, there are a handful of extracts from the report that are important in understanding what the Clery Act requires.
At page 49:
One of the central precepts of the Clery Act is an acknowledgement of the fact that students and employees in a higher education setting will often opt to not report crimes directly to law enforcement and will instead choose to first, and perhaps solely, report to another trusted source. This required disclosure reflects that reality and stands for the principle that victims and witnesses should have these options and deserve to know where such reports can be directed and what actions will follow from filing a report.
At page 19:
Under the Clery Act, institutions are required to comply with the policies and procedures established by the institution.
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Clery Act, relevant extracts
https://www.gpo.gov/fdsys/pkg/USCOD...11-title20-chap28-subchapIV-partF-sec1092.htm
Paragraph 8.B.(v) is most relevant, and describes one of the items that must be included in university sexual assault procedures:
8.B. The policy described in subparagraph (A) shall address the following areas:
8.B.(v) Informing students of their options to notify proper law enforcement authorities, including on-campus and local police, and the option to be assisted by campus authorities in notifying such authorities, if the student so chooses.
"If the student so chooses." In other words, it is the victim's decision whether or not police are informed. Now, this isn't always the case. And the Clery Act gives universities flexibility in how they craft their procedures. But this is one of the basic elements.
This element was codified in a 1992 amendment to the Clery Act, known as the Federal Campus Sexual Assault Victims' Bill of Rights.
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The Federal Campus Sexual Assault Victims’ Bill of Rights | Clery Center For Security On Campus
https://web.archive.org/web/2013081...ral-campus-sexual-assault-victims’-bill-rights
The Federal Campus Sexual Assault Victims’ Bill of Rights:
- Survivors shall be notified of their options to notify law enforcement.
- Accuser and accused must have the same opportunity to have others present.
- Both parties shall be informed of the outcome of any disciplinary proceeding.
- Survivors shall be notified of counseling services.
- Survivors shall be notified of options for changing academic and living situations.
The Campus Sexual Assault Victims’ Bill of Rights was signed into law by President George Bush in July of 1992. This law requires that all colleges and universities (both public and private) participating in federal student aid programs afford sexual assault victims certain basic rights. Schools found to have violated this law can be fined up to $35,000 or lose their eligibility to participate in federal student aid programs. Complaints about schools that have filed to comply with this law should be made to the U.S. Department of Education.
The “Campus Sexual Assault Victims’ Bill of Rights” exists as a part of the campus security reporting requirements, commonly known as the Jeanne Clery Act.
So how exactly did Penn State craft their sexual assault policy after these updates to the Clery Act? The sexual assault policy that was in effect in February 2001 was initially released in November 1996. That policy referred to a separate document, the Sexual Assault Protocol, for reporting guidance. That protocol was initially released in Fall 1995.
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Policy AD12 in effect in February 2001
Here's the Sexual Assault Policy in effect in February 2001 - "Policy AD12 Sexual Assault":
https://web.archive.org/web/20000817201026/http://www.guru.psu.edu/policies/ad12.html
Reporting requirements from the version linked above referred to the Protocol to Assist Victims of Relationship, Domestic and Sexual Violence. Here is the entire section on reporting from AD12:
REPORTING:
Guidelines for how and when to report sexual assault to University and/or law enforcement officials are contained in the Sexual Assault Protocol, copies of which are available from the Administrative Office of University Health Services. The Sexual Assault Committee, appointed by the Vice President for Student Affairs, will provide University-wide oversight for policy and procedures relating to sexual assault, including data collection, monitoring of trends and establishing educational programs designed to foster an environment that is intolerant of acts of violence.
Policy AD12 simply refers to another document, the Sexual Assault Protocol, which provides reporting guidance. Copies of the Fall 2001 version of that document used to be available on the University website. They were removed at some point after 6/17/2012.
The version of the Sexual Assault Protocol that was in effect in February 2001 has more relevance to what Paterno might have been referring to when he said he was afraid to jeopardize university procedure. Unfortunately, there are no active internet links to that version. That doesn't mean I've been unable to dig up a copy.
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Sexual Assault Protocol in effect in February 2001
The following are excerpts from the Sexual Assault Protocol that was in effect in February 2001. To my knowledge, this version of the document is not publicly accessible on the internet.
At page 1 under "I. Philosophy":
Due to the extremely sensitive nature of the crime of rape, it is important to provide confidential services to victims. There is a reluctance on the part of most victims to seek services and to report: thus, it is especially important to provide those who come forward with a protected environment. When certain protocols require that the incident be reported, such as in the case of hospital treatment or injury resulting from the rape, the victim must be informed of the notification that must take place.
At page 3 under "II. Procedures, B. Staff Responsibilities, 1. Victim Contact":
At University Park
Centre Community Hospital Reports all sexual assaults to police. It is the victim's choice whether or not to talk to the police.
At page 4 under "Reporting to Law Enforcement Authorities":
The University encourages victims to report sexual assaults to law enforcement authorities. If the assault happened recently, whether or not to report to police is a decision the victim will need to make fairly soon.
At at page 5 in the same section under "(b) Reporting to Law Enforcement Authorities":
If the victim chooses to report, encourage her/him to make the phone call.
It should be obvious at this point that the language in the Sexual Assault Protocol exists largely as a result of the requirements dictated by the Clery Act, which is federal law.
This is where it gets messy. We're talking about university officials in 2001 who had no real experience or training in responding to allegations of child sexual abuse. However, there were established procedures for dealing sexual assault allegations in a university setting, whether it was among students, faculty, or staff.
And it was the Clery Act that provided guidance on the types of things that universities in general needed to include in their procedures that dealt with sexual assault. Unfortunately, that guidance was specific to adult (or university student) victims, not child victims. Worse yet, it was aimed at identifiable victims, or those who had access to and could read those university procedures. That's another key part of the Clery Act - not only do the procedures have to contain certain things, they must be readily available to the university community. Today, that means they must be on university websites & easy to find.
University procedures in 2001, in general, at least with regard to requirements set forth by the Clery Act, were never designed for child victims and certainly not unidentifiable child victims.
Sally Jenkins asked Paterno why he didn't follow up more. He said, in part, that he was afraid to jeopardize university. Was he talking about the Sexual Assault Protocol? Did he read it back in 2001? If so, he read the following phrases:
- Due to the extremely sensitive nature of the crime of rape, it is important to provide confidential services to victims.
- When certain protocols require that the incident be reported ... the victim must be informed of the notification that must take place.
- whether or not to report to police is a decision the victim will need to make fairly soon.
- If the victim chooses to report, encourage her/him to make the phone call.
- It is the victim's choice whether or not to talk to the police.
Now imagine it's you reading these phrases in 2001, without knowing anything about child sexual abuse, you have uncertainty about whether there was an assault, and you have no idea who the victim is? Would you have a clear idea on what to do? You'd probably hand it off to your boss. You might even show him this procedure and explain you're not sure if calling the police is the right thing to do. You might explain it's not really our right to make that decision. You might also say that we need to hear from the child and his parents. And if they do want to report, and they choose to, I don't think they're going to come to us, they'd probably go right to the police.
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Almost Done
I've written about parts of this before, in the context of how a deposition of Freeh might have played out:
https://jmmyw.wordpress.com/2016/03/03/freeh-deposition-in-paterno-v-ncaa-lawsuit/
I got some feedback on that blogpost from Jim Clemente. He summed up the issues quite well and noted the procedural gap that existed. Here is part of what he said:
It's clear the Clery Act & PSU Policy wasn't meant for child sex cases. In those cases it is never up to the child whether a report should be made. So it is in fact a gap that existed & should have been addressed.
Problem is most Universities did not consider themselves "youth serving organizations " when in fact they were.
Adult students are and should be capable of making informed decisions about whether or not to report sexual assault, rape, etc. but children should never be involved in that process. The law is meant to protect them. They are not developmentally capable of making such a decision.
Importantly, Penn State fixed the procedural gap that existed.
Among the first (and perhaps best) recommendation Freeh made was that the university should create a procedure specific to reporting child abuse. At page 130-131, in Chapter 10 on recommendations, in the subsection on policies and procedures, he noted: "the absence or poor enforcement of policies relating to the protection of children".
Even before the Freeh report was released, Penn State adopted one of his early recommendations. Namely, to institute a new policy aimed specifically at reporting suspected child abuse. It's policy AD72 which was approved on 5/14/2012. You can find a copy of it at the end the Freeh Report, at page 254.
Why haven't we seen this type of discussion and analysis before? It's obvious a procedural gap existed. It's equally obvious that this procedural gap was effectively closed. Is it simply that the explanation is too nuanced? Had Freeh put forth a similar analysis in his report, how do you think the public would have received it? Or did Freeh have a narrative he had to stick to? Did Penn State seek out the sanctions and the Consent Decree so they wouldn't have to answer the NCAA questions? Did the Department of Education avoid this type of discussion in their Clery Act Report on Penn State? Did the DOE purposely avoid this discussion by their own choice? Is it possible this was addressed in the preliminary DOE report that Penn State was given in 2013 to comment on? Why did it take more than three years for the final DOE report to be made public?
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One more thing
Penn State's internal ethics officer, the DOE, the NCAA, and Freeh aren't the only investigators that failed to allow this information to become public.
At the 12/16/2011 preliminary hearing, during cross-examination of McQueary, there was this brief exchange at page 103:
http://www.dauphincounty.org/govern...chultz/12-16-Preliminary-Trial-Transcript.pdf
Q: In all of the conversations, meetings you've had with Coach Paterno since that first time you talked to him about this incident, he never said the police should have been called?
MR. BEEMER: Objection to the relevance of what Coach Paterno said should have been done.
THE COURT: Sustained.
It seems not even the Pennsylvania Office of Attorney General was interested in hearing the answer.
/sorry for the length, and the tendency to overload on quotes, and the rambling; I wish I had more answers
