In 1983, the Pennsylvania Courts sent a young man to prison for raping a girl in a car. The peculiar part of the case is that the young man did not touch the girl. He was convicted of rape for simply driving the car while another man raped a girl. The case was Commonwealth v. Majorana, 503 P.a 602 (1983).
As a criminal defense attorney, I have represented defendants like the one in the Majorana case. Often times, they don’t understand why they are being punished for something they didn’t do.
Accomplice liability is one answer. Conspiracy is the other.
Accomplice liability means that you are liable for another’s actions because you helped facilitate the crime in some way.
Conspiracy is the agreement between two or more people to commit a crime. That agreement doesn’t have to be spoken, nor do specific plans have to be laid out.
Simply put, if you are involved with a rape—in any way—you may be criminally liable.
Which brings us to the officials in charge at Penn State—those driving the car, if you will.
Joe Paterno has been the head coach of the Nittany Lions for 45 years. His name is synonymous with Penn State. Without question, he's in the driver's seat of the football program.
The football program, specifically a shower at the football facilities, is where Jerry Sandusky raped several of the children. While it's uncertain what Paterno specifically knew, he did know something wrong happened in the shower.
Then graduate assistant Mike McQueary heard "rhythmic slapping sounds" coming from the showers, according to the Grand Jury report (page 6).
After hearing those “rhythmic slapping sounds” emanating from the showers, he called his father and asked what he should do with the information. His father instructed him to inform Paterno. And he did.
Paterno was, for certain, told that Sandusky had done something wrong of a "sexual nature." Paterno then told two Penn State officials: Tim Curley and Gary Schultz.
Curley was the Penn State athletic director at the time. After hearing the allegations, Curley simply told Sandusky to take his “activities” elsewhere. He informed Curley not to be at Penn State’s athletic facilities with any young boys.
Schultz’ claim to the grand jury is that Paterno and McQueary did not provide enough details for him to take sufficient action.
Curley and Schultz have both been charged with failure to properly report suspected child abuse and perjury for lying to the grand jury. Nothing more.
Those charges fall painfully short of their liability, however.
In an email from Curley to former Penn State University President Graham Spanier, Curley indicates that it was Paterno who convinced him not to expose Sandusky as a pedophile:
"After giving it more thought and talking it over with Joe [Paterno] yesterday, I am uncomfortable with what we agreed were the next steps. I am having trouble with going to everyone, but the person involved. I would be more comfortable meeting with the person.. tell him the information we received... and tell him we are aware of the first situation."
Spanier's response is equally chilling:
"The only downside for us is if the message isn't 'heard' and acted upon, and we become vulnerable for not having reported it. But that can be assessed down the road."
Spanier's response shows that they knew what the right thing to do was (get the message out about Sandusky and act upon it) but chose to only be concerned with keeping Sandusky's crimes a secret. Spanier was only worried about his liability if Sandusky's rapes were discovered "down the road."
Well, we've made it down the road, and Spanier is correct: he's liable. And so are all of the other Penn State officials who knew about Sandusky.
And through the testimony at the grand jury and trial, it is clear that the Penn State officials knew about Sandusky’s pedophile nature. Instead of reporting the specific incident to the police, the officials did nothing and only asked Sandusky not to be seen with young boys on campus.
The Child Protection Services Law in Pennsylvania (found at 23 Pa.C.S. 6311) is a mandatory reporting statute that required the Penn State officials to report Sandusky’s abuse within 48 hours to the Department of Public Welfare.
The Grand Jury found that PSU officials, including Paterno, violated the mandatory reporting law.
By violating the mandatory reporting law—especially after McQueary gave a detailed account of the abuse, coupled with knowledge of a prior incident in 1998—Paterno and the other PSU officials began a decade long cover-up of Sandusky’s reign of abuse. That is where the conspiracy begins to take form.
The rape that McQueary heard in the shower was from Victim No. 2. How many more occurred after that incident? Several over the course of 15 years.
Joe Paterno and the other Penn State officials allowed Sandusky to commit that nightmarish abuse on those children. Had Paterno not convinced Curley to keep Sandusky's secret, then Victims No. 3 and beyond may never have been violated. This is Paterno's legacy, not his wins at Penn State.
At some point, the officials who knew about Sandusky’s illegal activities also became liable for those actions. The officials were in charge of the facilities where Sandusky was raping children, and they did nothing to stop it. Instead, they sent emails to one another agreeing to cover up the crimes.
They are no different than the young man in the Majorana case.
And neither is former Penn State University president Graham Spanier and Mike McQueary.
McQueary has seemed to escape liability by testifying against Sandusky. The prosecutor, however, did not need McQueary’s testimony given the powerful nature of the victim’s testimony. McQueary should not have been given any immunity and should share a prison cell with Sandusky.
And remember, even those that are being criminally charged—Curley and Schultz—are not being charged with conspiracy. They are simply being charged with lying. That's a difference of about 20 or so years in prison.
A Civil Action Looms
There's no question that the university, Sandusky, Paterno, McQueary, former athletic director Tim Curley and the others involved could be hauled into court in a civil action.
The first act of rape by Sandusky wouldn't have necessarily been sufficient to hold the university or the individuals involved civilly responsible. Sandusky's actions were so far outside of the scope of his employment that they would've been shielded.
Similar to the Roman Catholic Church and the multiple lawsuits brought by victims who suffered molestation at the hands of priests, those churches were not necessarily liable for the individual actions of the priests. Once the church knew of the priests' actions, they had a duty to act. That's when liability attaches.
The liability attaches for Penn State, et al. once they knew of Sandusky's actions and permitted him to continue raping boys on their facilities. At that point, the university had a duty to act and failed to do so.
Once Penn State was charged with the duty, the university was required to take appropriate precautions to ensure that the illegal activity did not occur again; that would include firing Sandusky and reporting his activities. If that were done after the first incident reported by McQueary, and Sandusky was not permitted on the campus again, that would've been the end of it for Penn State.
Over the course of 15 years, at least eight boys (and potentially up to 17 according to Fox Philly) were subject to Sandusky's evil actions. That's where the liability enters.
The fact that Penn State had knowledge of Sandusky's pedophilic disposition and chose to do nothing will strike a crippling blow to the university, financially and otherwise.
The fallout from Sandusky's abhorrent sexual behavior will be lifelong for the children he violated. For the university, it will take years to overcome on a practical level, and it will always mar the tradition of the school—as it should.