Penn State University has been reeling from the Gerald Sandusky sex abuse scandal – a past assistant coach at the university. As a result of the scandal, President Graham Spanier and legendary football coach Joe Paterno are no longer with the University.
The famed football program, that recently made Paterno the coach with the most wins in Division I college football, has been tainted by allegations that officials knew of Sandusky’s sexual assaults for years and were ignored.
The Sandusky Grand Jury Report
A grand jury indictment issued in November brought to light the allegations of sexual abuse by Sandusky dating back to 1994. Eight victims were listed, detailing various incidents of abuse by Sandusky on boys, some apparently as young as 8-years-old.
The allegations led to the departure of Spanier and Paterno, as the grand jury report indicates various incidents were reported to them, but the University applied only trivial sanctions to Sandusky – such as taking away his keys to the locker room. A particular incident in 2002 that was personally reported to Paterno by the witness resulted in no formal investigation, and law enforcement authorities were never notified.
While the criminal prosecution against Sandusky is progressing, there exists the likelihood of civil litigation. If and when civil litigation is commenced, it currently appears that a voluntary attempt by Penn State to resolve the matter with the victims might be the safest path to take for the school, as the discovery process that would follow the commencement of formal litigation could be extremely damning given the number of unknown variables – unknowns such as how many alleged victims, how long did the alleged abuse go on, what did the officials at Penn State know and when did they know it.
Ultimately, this scandal has forever tarnished the reputation of the university and Paterno’s career as coach – and if the allegations are proven true, don’t forget that this scandal has also severely scarred innocent children.
Risk in New York of Vicarious Liability
Every school in New York should use this case as a wake-up call to ensure that all of their policies and procedures for dealing with incidents of sexual assault in school are in place and functional in order to protect students.
Clearly the best policy is to prevent these cases from occurring in the first place. Penn State probably felt they had appropriate systems in place to prevent and deal with these issues. Every institution, from kindergarten to graduate school, needs to review their training, reporting and investigative processes.
In New York, an employer is generally not vicariously liable for an employee’s assault unless it was done in the furtherance of the employers business and was incidental to the employee’s activities – which New York courts have held even applies in cases of sexual assault or abuse. If the Sandusky case were to be tried in New York, Penn State would obviously argue that his actions were not in furtherance of its business, and thus not liable.
Negligent Hiring, Retention or Supervision in New York
New York law does contain additional legal theories in which to hold employer liable for the acts of employees – namely the theories of negligent hiring, negligent retention or negligent supervision. Under New York law, employers are required to avoid hiring or retaining employees who the employer knows – or in the exercise of reasonable care, should know – are unfit and likely to assault persons they come in contact with. However, if there is no negligence on the part of the employer in hiring or retaining the employee, the employer will not be liable for an assault simply because they hired a dangerous person.
Again using the Sandusky case as an example, there are currently no allegations that Penn State was aware of alleged sexual assaults by Sandusky prior to his employment, but there are ample allegations that they knew, or at least should have known, about the alleged incidents while he was working there.
Some of the most damning evidence of Penn State’s lack of process was the 2002 incident, where a graduate assistant claimed to have witnessed a Sandusky rape a boy in the Penn State locker room on a Friday night in the beginning of March.
The assistant allegedly spoke in person with Joe Paterno the following morning, detailing the incident and Paterno waited until Sunday to call Penn State athletic director Tim Curley. In mid-March, the assistant was first questioned by Curley, who allegedly told the assistant the school would look in to it.
Allegedly, near the end of the March, the assistant was informed by Curley that Sandusky’s locker room keys were taken and Sandusky was reported to Second Mile – Sandusky’s charity.
Because of these allegations, in could be argued that Penn State had notice of Sandusky’s behavior from 1998 and 2002, yet he still had emeritus status and use of an office and Penn State facilities. A New York Times article noted he was a regular presence for “years after the 2002 incident.” What will be especially damning for Penn State was the alleged number of various officials of the university who were on notice concerning Sandusky’s behavior, and their alleged failure to treat it with the seriousness it demanded.
Obviously this article only scratches the surface regarding legal issues that may arise during the Penn State sexual abuse scandal, and as such should not be taken as legal advice. However, schools everywhere, including New York, should heed the warning and do what they can to protect not only their students but all children from sexual abuse.
