Outrageous Allegations of Child Sexual Abuse and Failure to Report Devastate Presumption of Innocence and Shift Burden of Proof
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Contrary to the screaming media pundits, who have thrown the presumption of innocence out the window, we do not know if former Penn State defensive coordinator is guilty of the 40 child sexual abuse allegations leveled against him by a “Happy Valley” grand jury. We certainly do not presume his guilt. As a criminal defense law firm, we are deeply disturbed, although not surprised, that Sandusky has already been tried, convicted, and sentenced in the court of public opinion. The presumption of innocence and the right to a fair trial has been eroded into oblivion by the cable news networks, like former prosecutor and HLN’s guilt-announcing host Nancy Grace. We would caution the general public to remember the California McMartin “preschool” child sex abuse scandal that began with outrageous allegations of child sex abuse, three years of investigation and six years of trials which did not produce a single conviction, but ended with exposure an array of misconduct by the media covering the story, law enforcement investigators prosecutors who brought it to trial, the child victims and their parents.
The Pennsylvania Sandusky case is likely on the fast track to becoming a “McMartin” case—perhaps not with the same results, but certainly with similar media, law enforcement, prosecutorial, and victim misconduct. And it will all be rocket fueled by the likes of Nancy Grace, a host of television lawyers, and a slew of so-called “experts” who will see “evidence” of child sexual abuse in everything from the design of Nitany Lions’ jerseys to the color of their football field.
The Huffington Post has compiled a chronological “timeline” of the allegations in the Sandusky case from which we draw heavily, for discussion purposes:
1963-65 – Sandusky played defensive end with Penn State under Joe Paterno.
1966 – Sandusky became a “graduate assistant” under Paterno.
1967 – Sandusky became an assistant coach at Juniata College.
1968 – Sandusky became an assistant coach at Boston University.
1969 – Sandusky begins his “coaching career” as the Nitany Lions’ defensive line coach. He was 25 years of age.
1977 – Sandusky establishes The Second Mile, a foster home and later a “charity” whose purpose was to help “troubled boys” who either had no families or came from dysfunctional families.
1983 – Penn State is named national champions for the 1982 season.
1987 – Penn State is named national champions for the 1986 season.
1994 – A ten-year-old boy, identified only as Victim 7, met Sandusky through The Second Mile.
1994-95 – A seven or eight year old boy, identified only as Victim 6, met Sandusky at a Second Mile picnic.
1995-96 – A seven or eight year old boy, identified only as Victim 5, met Sandusky through The Second Mile.
1996-97 – A 12 or 13-year year old boy, identified only as Victim 5, met Sandusky during his second year of participation in The Second Mile program.
1996-98 – Sandusky took Victim 5 to the locker rooms and showers at Penn State when the boy was 8 or 10 years old.
1998 – At Outback Bowl, Victim 4 is listed as a member of Sandusky’s family party.
1998 – At 11 years of age, Victim 6 is taken to the locker rooms and showers at Penn State after which he was dropped off at his home with his hair still wet from showering with Sandusky. The boy’s mother reported the incident to university police who investigate. Detective Ronald Schreffler testified before Grand Jury that he and State College Police Department Detective Ralph Ralston eavesdrop on two conversations the boy’s mother had with Sandusky during which he admitted he had showered with other boys. The mother tried to get Sandusky to promise it would never happen again, but the defensive coach refused to do so. Schreffler told the Grand Jury that Sandusky said during the conversations, “I understand I was wrong. I wish I could get forgiveness. I know I won’t get it from you. I wish I were dead.” An investigator with the Pennsylvania Department of Public Works named Jerry Lauro told the Grand Jury that he and Schreffler interviewed Sandusky who admitted that he had showered naked with Victim 6 during which he hugged the boy and told the detectives he knew that was wrong. This investigation was closed after then Centre County District Attorney decided not to file any criminal charges against Sandusky.
1999 – Sandusky retired from Penn State but still held emeritus status.
1999 – Along with Sandusky’s wife, Victim 4 is listed as a member of Sandusky’s family party for the December 28 Alamo Bowl.
2000 – During the summer, Victim 3 met Sandusky through The Second Mile when he was in the seventh or eighth grade.
2000 – During the fall, a Penn State janitor named James Calhoun saw Sandusky in the showers at the Lasch Football Building with a boy identified only as Victim 8 performing oral sex on the 11 or 13 year old child. Calhoun immediately reported the incident to other janitorial staff. A second janitorial employee named Ronald Petrosky cleaned the shower and also saw Sandusky and the boy there. Calhoun also reported what he had seen to his supervisor, Jay Witherite, who told the janitor to whom he should report the incident. A temporary employee, Calhoun never reported the incident.
2002 – On the first day of March graduate assistant coach Mike McQueary entered the locker room in the Lasch Football Building where he saw Sandusky in the showers engaged in anal intercourse with a 10-year-old naked boy identified only as Victim 2. McQueary immediately reported the incident to his father. The following day McQueary informed Paterno at the coach’s home about what he had seen.
2002 – The day after receiving the information from McQueary, Paterno called Penn State Athletic Director Tim Curley at the AD’s home and reported a version of what McQueary hold told the coach.
2002 – Later in March, McQueary was summoned to a meeting with AD Curley, and Gary Schultz, Senior Vice President for Finance and Business. McQueary told the two high ranking Penn State officials what he had seen with Sandusky and the boy. The two officials said they would look into it.
2002 – In the waning days of March, McQueary heard from Curley who told the graduate assistant coach that Sandusky’s keys to the locker room had been taken and the incident had been reported to The Second Mile. McQueary was never questioned by university police or any other entity until he testified before the Grand Jury in December 2010.
2005-06 – An 11 or 12 year old boy identified only as Victim 1 met Sandusky through The Second Mile.
2007 – During the spring track season, Sandusky began spending time with Victim 1, having him stay overnight at the former’s coach residence in College Township.
2008 – Sandusky terminated contact with Victim 1 when the teenager was a freshman at a Clinton County high school at which time Victim 1’s mother reported the sexual abuse of the teenager to the high school. Sandusky was barred from the school district attended by the victim, and the matter was reported to authorities as mandated by law.
2009 – In early part of year, the Pennsylvania attorney general launched an investigation when a Clinton County teenage boy told authorities Sandusky had inappropriately touched him several times over a four year period.
2010 – Citing that he wanted to spend more time with family and friends, Sandusky in September announced he was retiring from day-to-day involvement with The Second Mile.
2011 – On November 5 Sandusky was arrested and released on $100,000 bail. Two days later Attorney General Linda Kelly says Paterno was not a target of its investigation; however, she refused to state whether Curley, Schultz, or Penn State President Graham Spanier were under investigation for failing to report what they knew about Sandusky’s child sexual abuse. On November 9 a ninth Sandusky victim reported came forward with allegations of abuse, and most probably contributed to the decision by the Penn State University Board of Trustees the following day to fire both Paterno and Spanier.
Failure to Report Child Sexual Abuse
The most prominent issue, other than disturbing allegations of child rape, in the Sandusky case has become the failure on the part of many Penn State officials to report the allegations to law enforcement and arguably prevent further abuse. The Child Welfare Information Gateway in 2009 reported that this is not an uncommon occurrence in such cases. The CWIG said approximately 47 states and the District of Columbia have laws imposing criminal penalties on those who not only know, but suspect, a child is being abused and fail to report it. In most of the states, failure to report child abuse is a misdemeanor. Specifically, the Hero Project reports that in Pennsylvania “school employees are required to report suspected physical or sexual abuse of a child by a school employee.” And Section 23§6303 of the Pennsylvania penal code defines “abuse” as:
“[An] act which causes non-accidental serious physical injury, sexual abuse exploitation, serious physical neglect constituting prolonged or repeated lack of supervision or failure to provide essentials of life.” The statute requires mandatory reporting of abuse by the following: “Physician, coroner, dentist, chiropractor, hospital personnel, Christian Science practitioner, clergy, school teacher, nurse, administrator, social services worker, day care or child center worker, mental health professional, peace officer, law enforcement official, funeral worker, foster care worker.” The basis for making a report of abuse/neglect is: “reasonable cause to suspect within their respective training that child is abused.” The statute requires that the report be made to: “Department of Public Welfare of the Commonwealth.” The penalty for failure to report is: “Summary offense for 1st violation; misdemeanor in 3rd degree for 2nd and subsequent offenses.”
Under Pennsylvania law, a “summary offense” is a petty crime comparable to disorderly conduct and speeding. It does not result is “criminal conviction,” but is reported to the State Police and shows up on criminal background checks. And that’s why Curley and Schultz were charged with perjury and covering up the sexual abuse allegation rather than failure to report this sexual abuse of the child.
Apparently lawmakers in Pennsylvania have historically considered not reporting child sexual abuse no more serious than walking around drunk in public. And it apparently explains why not only McQueary and Peterno but Calhoun, Petrosky, and Whiterite were not charged with a “summary offense” for their failure to report their knowledge of child sexual abuse at Penn State. Their failure to act, as it has been labeled by the media, constituted nothing more than a “moral lapse” in judgment.
Speaking of a “moral lapse” in judgment, assuming the grand jury report is accurate, we feel all the adults who suspected this serial sexual child abuse, from the parents of the victims to the college staff and even the janitors and local police, could have done more to expose Sandusky’s inappropriate conduct with children. Why didn’t these people alert the media, like the Philadelphia Inquirer which is renowned for its investigative journalism, after Centre County district attorney Ray Gricar refused to prosecute Sandusky. Had the news media been alerted in 1998 about Sandusky’s inappropriate behavior with children in The Second Mile program, it obviously could have prevented future acts of sexual abuse of children in 2000 and 2002.
In Texas, the failure to report suspected child sexual abuse is more serious than in Pennsylvania. In the Lone Star State, failure to report child abuse is a Class A misdemeanor under Chapter 261 of the Texas Family Code providing for a sentence up to 180 days and/or a fine of $2,000. Apparently Texas lawmakers, unlike like their counterparts in Pennsylvania, consider the failure to report such abuse to be a serious crime, more than simply a “lapse” in legal, or moral, judgment.
Adding fodder for conspiracy theorist, the “Sandusky scandal” has also revived interest in the 2005 disappearance of District Attorney Ray Gricar, who refused to charge Sandusky with child abuse in connection with the complaint made by the mother of Victim 6. Questions about the Gricar disappearance are further fueled by the fact that he failed to prosecute a star defensive Penn State tackle who allegedly raped a woman in a “campus apartment” in 2004. The New York Times has reported that Gricar disappeared on April 15, 2005 and the following day his Mini Cooper was found in Lewisburg, some 50 miles from his home. His cell phone was found inside his car, although his wallet, keys and laptop were missing. Several months later the laptop was a found in a river missing its “hard drive.” Four years after the district attorney’s disappearance, investigators discovered, from a search of Gricar’s home computer, that the DA had conducted Internet searches on “how to wreck a hard drive.” This past July Gricar was officially pronounced dead at the request of his daughter Lara—just months before the Sandusky scandal broke.
Unfortunately, these circumstances have led to many unsubstantiated conspiracy theories. These theories, no matter how unlikely, have already gained some adherents and serious consideration by legitimate investigative reporters because leaders of powerful institutions, including the clergy in the Catholic Church, have a sordid history of ignoring allegations of child sex abuse and protecting pedophiles. For whatever reason, whether it is fear of civil liability, damage to public relations or both, powerful people and institutions often disregard allegations of child sexual abuse and thereby protect the pedophile. Not to mention, true pedophiles are extremely manipulative and convincing, which not only allows access to children, but allows credence to their protests of innocence.
As we said at the start of this article, we presumed Sandusky’s innocence, although the former coach did not help his cause in a recent media interview that confirmed he showered with young boys following workouts and may have accidentally touched them inappropriately on the legs. When asked by NBC’s Bob Costas if he was attracted to young boys, Sandusky paused and replied: “No, I enjoy young people.” Sandusky’s attorney, Joe Amendola, told CNN’s Anderson Cooper that he did not think that showering with young boys constituted sexual assault. The attorney defended Sandusky’s showering behavior by telling Cooper: “Jerry Sandusky is a big overgrown kid. He’s a jock. The bottom line is jocks do that – they kid around, they horse around.”
It will be left up to a jury to decide this issue. We would only hope that the court of public opinion would ratchet down its pre-determined judgment of guilt in the case.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair