While Pennsylvania Attorney General Linda Kelly says that her office won't file charges against Joe Paterno for not reporting the alleged child sexual abuse by former Penn State defensive coordinator Jerry Sandusky, the 84-year-old coach could eventually face criminal charges for perjury, obstruction of justice and violating the state's Child Protective Services Law. Paterno could also become a defendant in civil lawsuits filed by Sandusky's alleged victims. Those lawsuits could allege that Paterno negligently failed to prevent a third party with whom he had a supervisory relationship (Sandusky) from committing abuse.
Perjury and Obstruction of Justice
Under Pennsylvania law, as in other jurisdictions, perjury refers to knowingly lying while under oath. Obstruction of justice describes interference with the administration of justice, such as by concealing evidence or delaying or frustrating a criminal investigation. While Paterno has thus far escaped these criminal charges, his statements and behavior suggest that he remains vulnerable to them. That is particularly evident when considering troubling inconsistencies between Paterno's testimony to the grand jury that investigated Sandusky and the testimony of Penn State assistant Mike McQueary.
These inconsistencies related to Paterno's and McQueary's statements about "Victim 2" in the grand jury's statement of facts. According to the grand jury's findings of fact, McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno.
After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy.
To be sure, the phrase "doing something of a sexual nature" technically includes forcibly subjecting a child to anal intercourse, meaning Paterno may have been more evasive than untruthful. Then again, Paterno's hazy choice of words could encompass a band of sexual acts, from raping a 10-year-old boy to inappropriately touching or patting a child, that ranges too widely in heinousness to be deemed consistent with McQueary's allegedly more specific statements. The phrase unnecessarily imports ambiguity and generality where none had existed, and dubiously invites the listener -- Curley -- to assign a lack of severity to the incident. From that lens, Paterno appears to have told Curley a different account than what McQueary had told him.
The inconsistent testimonies raise several questions:
? Did McQueary lie to the grand jury about what he saw or told Paterno?
? Did Paterno lie to the grand jury about what McQueary had told him?
? If neither witness lied, did Paterno intentionally misrepresent what McQueary had told him in order to discourage Curley from aggressively investigating the matter or alerting the police? If so, did Paterno conceal the severity of the evidence or delay the onset of a criminal investigation to such an extent that he obstructed justice?
It should be reiterated that Paterno is at least publicly regarded by law enforcement authorities as a witness, rather than as a possible defendant; if authorities thought his actions clearly violated the law, he would have already been charged, just like Curley and former Penn State senior vice president of business and finance Gary Schultz. For purposes of obstruction of justice, Paterno also benefits from Pennsylvania's statute of limitations, which prevents authorities from charging individuals with crimes after a period of years. Although the length of years can be extended or "tolled" under certain circumstances, authorities would likely encounter difficulty charging Paterno nearly 10 years after the 2002 incident. Statute of limitations would not help Paterno deflect perjury charges, however, as his grand jury testimony occurred within the last year, thereby clearly falling within the applicable five-year statute of limitations.
Nonetheless, the potential exists for Paterno to face both perjury and obstruction of justice charges, especially as the investigation intensifies and as other witnesses, as well as defendants and potential defendants, talk. Also, should Curley and Schultz and, if eventually charged, university president Graham Spanier seek plea deals, they may be willing to implicate Paterno in exchange for more favorable treatment. Paterno, conversely, could seek the same type of arrangement with prosecutors, implicating Curley, Schultz et al. in exchange for avoiding prosecution. It is thus very possible that Penn State officials who worked closely together may wind up in a "prisoner's dilemma" where they will have an incentive to cut a deal and implicate their former colleagues before those former colleagues cut a deal and implicate them.
