In 1983, the Pennsylvania Courts sent a young man to prison for driving a car while another man raped a girl. The case was Commonwealth v. Majorana, 503 P.a 602 (1983) for those of you legal beagles that would like to take a read.
As a criminal defense attorney, I have represented defendants like the one in the Majorana case. Simply put, if you are involved with a rape, you may be criminally liable.
Which brings us to the individuals in charge at Penn State—those driving the car, if you will.
Joe Paterno has been the head coach of the Nittany Lions for 45 years. His name is synonymous with Penn State. Without question, he's in the driver's seat of the football program.
The football program, specifically a shower at the football facilities, is where the rape(s) is alleged to have occurred. While it's uncertain what Paterno specifically knew, he did know something wrong happened in the shower.
Then graduate assistant Mike McQueary heard "rhythmic slapping sounds" coming from the showers, according to the Grand Jury report (page 6). Those slapping sounds were from Paterno's former top assistant coach, Gerald A. Sandusky, raping a 10-year-old boy.
Paterno was, for certain, told that Sandusky had done something wrong of a "sexual nature" and did nothing of significance. So is he any different than the young man in the Majorana case?
Possibly. Paterno wasn't at the scene when the rape occurred. That fact may save him.
Should Those Who Knew About the Rape but did not Report it be Charged Criminally?
Depending on how aggressive the district attorney is, however, those involved could be charged with conspiracy to commit the illegal acts. So while we see these individuals falling from grace with respect to their employment and/or personal character, more trying times lie ahead. They have yet to see their day of reckoning.
A Civil Action Looms
There's no question that the university, Sandusky, Paterno, McQueary and athletic director Tim Curley and the others involved could be hauled into court in a civil action.
The first act of rape by Sandusky wouldn't have necessarily been sufficient to hold the university or the individuals involved civilly responsible. Sandusky's actions were so far outside of the scope of his employment that they would've been shielded.
Similar to the Roman Catholic Church and the multiple lawsuits brought by victims who suffered molestation at the hands of priests, those churches were not necessarily liable for the individual actions of the priests. Once the church knew of the priests' actions, they had a duty to act. That's when liability attaches.
The liability attaches for Penn State, et al. once they knew of Sandusky's actions and permitted him to continue raping boys on their facilities. At that point, the university had a duty to act and failed to do so.
Once Penn State was charged with the duty, the university was required to take appropriate precautions to ensure that the illegal activity did not occur again; that would include firing Sandusky. If that were done after the first incident reported by McQueary and Sandusky was not permitted on the campus again, that would've been the end of it.
Over the course of 15 years, at least eight boys (and potentially up to 17 according to Fox Philly) were subject to Sandusky's evil actions. That's where the liability enters. The fact that Penn State had knowledge of Sandusky's pedophilic disposition and chose to do nothing will strike a crippling blow to the university, financially and otherwise.
The fallout from Sandusky's abhorrent sexual behavior will be lifelong for the children he violated. For the university, it will take years to overcome on a practical level, and it will always mar the tradition of the school—as it should.