As the events involving the Jerry Sandusky/sexual abuse scandal continue to unfold at
, I am struck by how these victims have been failed by both the adults in this situation and the legal system. I am troubled by the fact that all Penn State law required of Joe Paterno and the other coaches is to report the abuse to the head of the department and not to the police. Pennsylvania’s Code § 3490.4 requires teachers and school administrators at public institutions to report child abuse, either to a superior or the authorities. Joe Paterno was the most powerful man at Penn State so the requirement that he report the abuse to a superior didn't amount to much. Although many in the media have focused on how these coaches failed in their moral obligation to report the abuse because they didn't go to the authorities, I am more troubled by the fact that there is a credible argument that, consistent with Section 3490.4, they were not required to go to the authorities. I think Section 3490.4 reflects a larger issue --- the inconsistency with which the law approaches moral issues. Perhaps the underlying basis of the law is that teachers and school administrators should not be required to go straight to the authorities because they will likely feel morally compelled to do so anyway. For this reason, it is enough that, by law, they have to report the abuse to someone. Yet this reporting requirement fell short in this situation, where you have a football program that brings in $70 million dollars a year, a powerful coach, and a group of low income, predominantly minority youth alleging sexual abuse. Pennsylvania
Moreover, the fact that people feel compelled to do the right thing in most circumstances has not stopped the law from mandating behavior that citizens would otherwise feel morally obligated to engage in. For example, although many people would tell the truth under oath for moral reasons or otherwise, this does not prevent the law from imposing penalties for a failure to do so as a deterrent. I know that the inconsistency with which the law approaches morality is obvious and should probably be expected given the disagreement that we, as citizens, have over moral issues, but I must admit that I am having a difficult time understanding what the “gray” area is in the circumstance of Penn State. Why didn't Section 3940.4 require individuals to report abuse directly to the police? Was it viewed as needless moral legislation in a situation where individuals will feel compelled to report the abuse anyway? In my opinion, this is a situation where moral legislation was needed (by saying that the "moral" thing to do is to report the abuse to the police and require it by law), to prevent abusers and their supporters from legally keeping the abuse in-house. This is not one of those "gray" areas that lead folks to disagree about the extent to which the government can pass moral legislation.
In other situations, the fact that there is a gray area as to whether moral legislation is appropriate is quite obvious. I teach constitutional law, and my students and I often have a lively discussion about whether the government should use the law in order to promote a certain view of morality. Among the cases we discuss are the abortion funding cases (Harris v. McRae and Maher v. Roe), which hold that even though abortion is a fundamental right, the government does not have to make it easier for individuals to obtain an abortion by providing funding. Notably, the Court held that funding childbirth, as opposed to abortion, does not infringe on this right, even though the government is, in a sense, expressing a moral viewpoint by funding one and not the other.
In contrast, in Department of Agriculture v. Moreno, the Court held that excluding households containing unrelated individuals from foodstamp assistance in order to prevent “hippies” from taking advantage of the program is not a permissible governmental purpose. In other words, excluding unrelated individuals because of moral disapproval of a particular lifestyle is not rationally related to the government interest in preventing fraud. These cases reflect that although the government can promote certain moral views through its legislation, there are certain constraints on its ability to do so. In the course of discussing these cases, my students and I often disagree about when and if moral legislation is ever appropriate, particularly given the extent of government involvement in our everyday lives (laws forbidding same sex marriage, alcohol sales on Sunday, narcotics and prostitution are just a few examples of moral legislation that citizens have to contend with). Above all else, I am certain that there is no “right” answer to this question, or if there is, I don’t know what it is.
But I question the government’s willingness to influence morals through law in virtually every situation but this one --- a situation involving the safety of children and the reporting requirements of adults who are aware of abuse. While many (including myself) may disagree about the extent to which the state can use its legislative authority to influence moral behavior, I believe that requiring Joe Paterno and others to report this behavior to the police is one situation where few would object to the law promoting a certain view of morality. I find comments in the media that Joe Paterno and others breached a “moral” obligation to report a massive understatement, particularly in light of the fact that all of this is coming out almost ten years after one of the coaches called his father and told him he saw assistant coach Jerry Sandusky raping a ten year old in the showers. At the end of the day, I am just appalled at how many people failed these kids, including a legal system that should have required that the adults in the situation call the police. Not the dean, the department head, the provost, or the campus police – the real police. Now, instead of holding Joe Paterno responsible for downplaying this incident and reporting it to people who did nothing for almost a decade, we have to have a discussion as to whether or not Paterno was a "person in charge" and therefore was required to report the abuse to the authorities. I wonder where we would be now if JoePa had to, by law, call the police when he found out about the abuse instead of reporting the information to "superiors" who were considerably less powerful than Paterno in the world of Penn State. That would be moral legislation I could live with.