POSTED: 7:13 a.m. HST, Nov 6, 2011
LAST UPDATED: 2:23 p.m. HST, Nov 6, 2011
HARRISBURG, Pa. >> The Pennsylvania law requiring some school officials and others to report suspected child abuse does not apply to a Penn State administrator who's accused of keeping quiet about allegations that a former football coach molested a boy in a shower, the administrator's attorney said Sunday.
The comments by Pittsburgh lawyer Thomas J. Farrell offer a preview of the defense he plans to use on the charge of failing to report faced by his client, Gary C. Schultz, the university's senior vice president for finance and business. Farrell said he will seek to have the charge dismissed.
The charge is part of a broader case centered on retired Penn State defensive coordinator Jerry Sandusky, who is accused of sexually abusing eight boys over 15 years. Schultz, 62, and Penn State athletic director Tim Curley, 57, were both charged Saturday with failing to report to state and county officials that a witness told them he saw Sandusky sexually abusing a naked boy in the showers of a team practice facility in 2002.
Schultz and Curley were both also charged with perjury. Lawyers for all three men say they are innocent.
Farrell told The Associated Press on Sunday that the mandated reporting rules only apply to people who come into direct contact with children. He also said the statute of limitations for the summary offense with which Schultz is charged is two years, so it expired in 2004.
The explosive charges are surprising both for what they detail and their contrast to the image of Penn State's football program. Under the leadership of Joe Paterno, who's won more games than any coach in Division I history, the Nittany Lions have become a bedrock in the college game. For more than four decades, Paterno's teams have been revered both for winning, including two national championships, and largely steering clear of trouble.
Paterno is not implicated in the case.
"Joe Paterno was a witness who cooperated and testified before the grand jury," said Nils Frederiksen, a spokesman for the state attorney general's office. "He's not a suspect."
Frederiksen called questions about whether Paterno might testify premature and speculation.
"That's putting the cart way ahead of the horse," he said. "We're certainly not going to be discussing the lineup of potential witnesses."
In a statement on Sunday, Paterno said that, if true, the "nature" and number of charges made "are very shocking to me and all Penn Staters."
"While I did what I was supposed to do with the one charge brought to my attention, like anyone else involved I can't help but be deeply saddened these matters are alleged to have occurred," he said.
The grand jury report that lays out the accusations against the men cites the state's Child Protective Services Law, which requires immediate reporting by doctors, nurses, school administrators, teachers, day care workers, police and others.
Neither Schultz nor Curley appear to have had direct contact with the boys Sandusky is accused of abusing, including the one involved in the eyewitness account prosecutors say they were given. Prosecutors say Sandusky encountered victims through The Second Mile, a charity he founded for at-risk children.
The two school administrators fielded the complaint from an unnamed graduate assistant, and from Paterno. The Patriot-News of Harrisburg has identified the graduate assistant as Mike McQueary, now the team's wide receivers coach and recruiting coordinator. McQueary was out of town on a recruiting trip Sunday, according to his father, John McQueary, who declined to comment about the case or say whether they are the two named in the grand jury report.
The law "applies only to children under the care and supervision of the organization for which he works, and that's Penn State, it's not The Second Mile," Farrell said of his client. "This child, from what we know, was a Second Mile child."
Messages left later Sunday seeking comment from Frederiksen with the attorney general's office, and from Curley's lawyer, Caroline Roberto, were not immediately returned. Farrell said it was accurate to say the allegations against Curley are legally flawed in the same manner.
Farrell said he plans to seek dismissal at the earliest opportunity. Both Schultz and Curley are scheduled to turn themselves in at a district judge's office in Harrisburg on Monday.
"Now, tomorrow is probably not the appropriate time," Farrell said. "We'll bring every legal challenge that is appropriate, and I think quite a few are appropriate."
As a summary offense, failure to report suspected child abuse carries up to three months in jail and a $200 fine.
"As far as my research shows, there has never been a reported criminal decision under this statute, and the civil decisions go our way," he said.
Curley and Schultz met with the graduate assistant about a week and a half after the alleged attack, Pennsylvania Attorney General Linda Kelly said Saturday. There is no indication that anyone at school attempted to find the boy or follow up with the witness, she said.
"Despite a powerful eyewitness statement about the sexual assault of a child, this incident was not reported to any law enforcement or child protective agency, as required by Pennsylvania law," Kelly said.
The allegations mirror the sexual abuse scandal that has rocked the Catholic church, albeit on a smaller and narrower scale. As in the church's case, authorities say high-ranking figures were given details about instances of sex abuse and failed to share them with law enforcement or child-welfare agencies.
Curley and Schultz also are accused of perjury for their testimony to the grand jury that issued a 23-page report on the matter Friday, the day before state prosecutors charged them. Sandusky was arrested Saturday and charged with 40 criminal counts.
Curley denied that the assistant had reported anything of a sexual nature, calling it "merely 'horsing around,'" the grand jury report said. But he also testified that he barred Sandusky from bringing children onto campus and that he advised Penn State President Graham Spanier of the matter.
The grand jury said Curley was lying, Kelly said, adding that it also deemed portions of Schultz's testimony not to be credible.
Schultz told the jurors he also knew of a 1998 investigation involving sexually inappropriate behavior by Sandusky with a boy in the showers the football team used.
But despite his job overseeing campus police, he never reported the 2002 allegations to any authorities, "never sought or received a police report on the 1998 incident and never attempted to learn the identity of the child in the shower in 2002," the jurors wrote. "No one from the university did so."
Farrell said Schultz "should have been required only to report it to his supervisor, which he did."
Schultz reports to Penn State president Graham Spanier, who testified before the grand jury that Schultz and Curley came to him with a report that a staff member was uncomfortable because he'd seen Sandusky "horsing around" with a boy. Spanier was not charged.
About the perjury charge, Farrell said: "We're going to have a lot of issues with that, both factual and legal. I think there's a very strong defense here."
The university is paying legal costs for Curley and Schultz because the allegations against them concern how they fulfilled their responsibilities as employees, spokeswoman Lisa Powers said.