The devil is in the details

By | April 4, 2012

The Field Center’s Newsletter

When the allegations of child sexual abuse against former Penn State assistant coach Jerry Sandusky became public late last year, people were rightfully outraged that numerous officials at that university failed to report what they knew to child protective services (CPS).  Certainly, if everything in the grand jury report is true, they had the moral prerogative to make such a report.  But set that aside for a minute to consider an important question: was Sandusky even reportable to CPS under the current Pennsylvania child abuse reporting laws?

Before beginning this discussion, a couple of points must be made clear.  First, Penn State officials could have reported to law enforcement even if Sandusky was not reportable to CPS.  But the distinction between reporting to CPS and reporting to law enforcement is important.  In Pennsylvania, CPS and law enforcement are not required to report to one another in all cases, so a report to law enforcement may not reach CPS.  It is critical that these reports reach CPS, since law enforcement is tasked primarily with punishing the perpetrator, while CPS is focused on the safety and well-being of the victim.  Second, the analysis here will be limited to the incident involving “Victim #2” from the grand jury report—who was allegedly raped in the shower in the Penn State locker room—because that’s the only incident about which Penn State officials clearly had at least some knowledge based on that report.

At first glance, the question of whether Sandusky was reportable to CPS seems nonsensical.  “Of course he was reportable,” one might reason, “after all, he was an adult who (allegedly) committed one of the most despicable acts of child abuse imaginable.  There is no logical reason why such an incident should not be reportable to CPS.”

Unfortunately, Pennsylvania’s law is not so logical.  In order for CPS to substantiate a report (i.e. determine that abuse occurred), certain facts must be established.  For example, the victim must have been under the age of 18 at the time of the abuse.  The abuser’s actions must rise to the level of abuse, meaning that the child must suffer serious physical or mental injury, or be subjected to neglect or sexual abuse.  Most important for this discussion, the alleged abuser—here, Sandusky—must fit into the statutory definition of the word “perpetrator.”

In Pennsylvania, perpetrators can fall into one of two categories: school employees and non-school employees.  Jerry Sandusky was not a school employee.  At the time of the alleged incident involving Victim #2, Sandusky was retired from Penn State, and was employed only by his charity, Second Mile. [1]

The important definition, then, is the definition of “perpetrator” for those who are not school employees.  In this context, a perpetrator must be a parent, parent’s paramour, person living with the child, or a “person responsible for the child’s welfare.”  From what we know, Sandusky can only be a perpetrator (and thus reportable to CPS) if he was “a person responsible for [Victim #2]’s welfare.”

“Person responsible for the child’s welfare” is defined in the statute to include those who provide “permanent or temporary care, supervision, . . . or control of a child in lieu of parental care, supervision, or control.”  Unfortunately, this definition provides little help in determining whether Sandusky was a perpetrator.  It sounds like it means someone who acts in loco parentis, as a school or daycare provider does.  But as will be shown shortly, that isn’t quite the case.

Since the statutes are unclear, we must look to judicial decisions that interpret the ambiguous language.  But the case law on this topic is decidedly thin.  The most helpful case is a 1994 decision called Gerstner.  In Gerstner, the Pennsylvania Supreme Court interpreted the phrase “person responsible for the child’s welfare” to include not only those who act in loco parentis, but also some undefined class of persons whose relationship with the child is something less than in loco parentis.  For example, in Gerstner, a babysitter was found to be a “person responsible.”

However, Gerstner has two critical deficiencies in this context.  First, Gerstner was actually interpreting the phrase “person responsible for the child’s welfare” from a different statute, so it wasn’t directly interpreting the child welfare statute.  Strangely, this is how the law works sometimes: the exact same phrase used in two nearly-identical contexts can be assigned different meanings by courts.  Second, the court’s interpretation, even if applied to this statute, would be subservient to the legislature’s definition in the child abuse reporting laws (“care, control, or supervision”).  In other words, because the legislature has already attempted to define the term, courts must interpret that definition, not the term itself.  So what we really need is a judicial interpretation of the “care, control, or supervision” language.

Unfortunately, there are only unpublished lower-court opinions interpreting this definition in the context of child abuse reporting.  “Unpublished opinions” are at best persuasive on subsequent courts; they cannot be used as binding precedent.  This is another peculiarity of legal practice that often doesn’t make much sense.  In the relevant unpublished cases, driving a child to his grandmother’s house was found to be sufficient “care, control, or supervision” to qualify the alleged perpetrator as a “person responsible”; so was having a child stay overnight at the perpetrator’s house.  However, even assuming that Sandusky’s level of responsibility over the child rose to the level described in these cases—which is speculative at best based on the grand jury report, which describes only the shower incident and not the underlying relationship—these unpublished cases would not settle the matter because they are non-binding.

Fortunately, basic principles of statutory construction provide at least some guidance.  There is a general rule that statutes do not contain unnecessary words; This is the “rule against surplussage.”  Here, this means that because the legislature did not define “perpetrator” to include any person means that there must be some individuals who cannot be perpetrators.  So perpetrators can include those in loco parentis, and some whose relationships are lesser, but not all persons.

This can be quite complicated and confusing, so here’s a recap of the discussion so far.  First, perpetrators must either be school employees (which Sandusky, at the time of the alleged incident involving Victim #2, was not) or “persons responsible for the child’s welfare.”  Second, for Sandusky to have been a “person responsible,” he must have had “care, control, or supervision” over the child.  Third, the meaning of those phrases is largely unclear except that those acting in loco parentis would qualify, as would some with less parental relationships, but not everyone.  Fourth, Sandusky wasn’t in loco parentis, but it is unclear whether he had, legally speaking, “care, control, or supervision” over the child.  Fifth, what exactly Sandusky’s relationship to Victim #2 was outside of the alleged incident in unknown; and even it were, there would be little-to-no legal guidance regarding whether that relationship fit the statutory definition.

These are the things that even the experts don’t know.  How, then, can mandatory reporters be expected to know?  How can CPS be expected to know?  How can judges be expected to know?  And, more importantly, can they really be blamed if they get it wrong?  Incidents like the one involving Victim #2 should be immediately reported to law enforcement at a minimum, and those who suspect that abuse is occurring should report to CPS just to be safe.  But what should happen from there under the current laws is anyone’s guess.

The arguments presented here are not meant to defend the failures of anyone involved with this scandal, merely to point out the lack of both clarity and consistency in Pennsylvania’s laws.  There are cases every day that fall into these gray areas, many involving abuse that isn’t as violent as that which Sandusky allegedly committed and therefore might not be reportable to law enforcement.  What happens then?  There must be better guidance on this issue from the legislature so that those whom society holds legally responsible for making and handling child abuse reports can act with clarity and certainty.

[1] Even if Sandusky was still an assistant coach employed by Penn State, he might not have been considered a school employee under the relevant statute.  A school employee is a person “employed by a public or private school, intermediate unit or area vocational-technical school” who has direct contact with students.  It is unclear whether this phrase in the statute was intended to include post-secondary institutions such as Penn State.  Intermediate units and vo-tech schools are typically thought of as K-12 institutions, so it could be inferred that “public and private schools” would also be limited to K-12 institutions.  There is no case law defining “school employee,” so these waters remain murky.