Penn State scandal shows sex-abuse laws can backfire

Posted: July 11, 2012

The trial of Jerry Sandusky is over, but the crisis over sexual abuse at Penn State is not. CNN recently reported on a trove of e-mails among university officials showing the extent to which they weighed and debated how to handle reports that the former assistant coach was sexually abusing children.

So the story continues, but are we learning the right lessons from it? A common refrain has been that university administrators are so keen to protect their schools' reputations and maintain winning programs that they have lost sight of their social and legal responsibilities. Lawmakers in many states, meanwhile, have decided that the Penn State scandal shows a need for stricter laws requiring sexual abuse to be reported — though Pennsylvania's existing laws would have been adequate if officials had lived up to their obligations.

But there is another lesson to be learned from this horrible story, and it's time we acknowledged it. Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime.

Penn State's former athletic director, Tim Curley, reportedly sent an e-mail to peers recommending that they respond to reports of Sandusky's crimes by telling him that his misconduct had been discovered, urging him to get treatment, notifying his charity, and prohibiting him from bringing his "guests" on campus. Former Penn State president Graham B. Spanier reportedly conceded the dangers of evading Pennsylvania's mandatory reporting requirements but agreed to the strategy as a "humane and reasonable way to proceed."

Curley and former Penn State vice president Gary Schultz face charges that they covered up the abuse allegations. (They have pleaded not guilty.) These prosecutions seem entirely appropriate, and the e-mails suggest more could be coming. But they also point to a larger problem in our approach to sexual abuse.

Raising stakes

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit. They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program. But they were also trying to protect Sandusky and themselves from the tsunami that would follow. I take Spanier at his alleged word that he feared an inhumane result. He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

Unbridled anger

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives. There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.

Daniel Filler is a professor at Drexel University's Earle Mack School of Law. He can be reached at daniel.m.filler@drexel.edu. We invite you to comment on this story by clicking here. Comments will be moderated.

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