Solving the Penn State Problem: Holding the Institution Accountable for Its Conspiracy of Silence

• Author: Sarah J. Kropp
• Pages: 167-214

SOLVING THE PENN STATE PROBLEM:

HOLDING THE INSTITUTION ACCOUNTABLE FOR ITS

CONSPIRACY OF SILENCE

SARAH J. KROPP*

[I]nstitutions have a potent impulse to avoid public scandal, and do an

execrable job of policing themselves. To protect their reputations or

simply to avoid conflict, they minimize even the most destructive

behavior. . . . And they persuade themselves that their mission, be it the

inculcation of religious faith or the scoring of touchdowns, trumps the

law’s mandates.1

I. INTRODUCTION

On October 15, 2007, thirty-six-year-old “Ben” confided to an

archdiocese victim coordinator that a priest had sexually violated him

when he was an altar boy at St. Mark Parish in Bristol, Pennsylvania.2 An

archdiocese victim coordinator, as well as an archdiocese investigator,

interviewed Ben on multiple occasions and forced him to repeat the details

of his abuse.3 Despite Ben’s credibility, the corroboration of several

witnesses, and another allegation made concerning the same priest a year

prior, the Archdiocesan Review Board (board) found Ben’s accusation

unsubstantiated.4 On July 24, 2008, the board notified Ben that it did not

find his allegation credible and would not discipline the priest who he

believes harmed him.5 “Less than a year later, Ben committed suicide.”6

Ben’s abuser remains active at several parishes in the Philadelphia area,

Copyright © 2014, Sarah J. Kropp.

* Capital University Law School, J.D, May 2013; Allegheny College, B.A. in English

Literature, May 2010. I would like to express my appreciation to Professor Scott Anderson

of Capital University Law School for his invaluable guidance and inspiration as I wrote this

Comment. I would also like to thank my family, friends, and, in particular, my friend and

former Editor in Chief of the Law Review, Alexis Haddox, for their encouragement during

the tumultuous writing process.

1 Frank Bruni, Suffer the Childre n, N.Y. TIMES, Sept. 11, 2012, at A23.

2 Report of the Grand Jury at 57, In re Cnty. Investigating Grand Jury XXIII, Misc. No.

0009901-2008 (Pa. Ct. Com. Pl. Jan. 21, 2011) [hereinafter Grand Jury Report], available

at http://www.phila.gov/districtattorney/PDFs/clergyAbuse2-finalReport.pdf.

3 Id. at 58.

4 Id. at 57, 60.

5 Id. at 60.

6 Id.

168 CAPITAL UNIVERSITY LAW REVIEW [42:167

and the Philadelphia Archdiocese has yet to notify parishioners of the

allegations of child sexual abuse made against the priest.7

Recently, there have been major scandals involving sexual crimes

against minors; these crimes were largely institutionally affiliated and went

largely unreported for years.8 This Comment discusses the sexual abuse

scandals involving two Catholic dioceses: one in Philadelphia,

Pennsylvania a nd the other in Kansas City, Missour i.9 While the actions of

pedophiles are reprehensible, the conduct of those individuals is not the

epicenter of discussion. Rather, this Comment focuses on the culpability

of the institutions that foster and acquiesce to the crimes of the sexual

offenders they harbor.10 As evidenced by the examples of scandals in

Catholic dioceses, these are inherently “institutionalized” cover-ups

involving the suppression of victims and evidence.11 These institutions

systematically enabled such crimes to occur and actively concealed crimes

in order to keep businesses and reputations intact.12

Ben’s story exemplifies some of the difficulties involved in bringing a

large institution, such as the Catholic Church, to justice for its role in

covering up and fostering the crimes of its employees. Using the examples

of one recent success—and a near miss—in holding high-level church

employees responsible for their roles in these types of crimes,13 this

Comment proposes a solution14 to the piecemeal justice currently available

to the victims of Gerald A. Sandusky (Jerry Sandusky).15 Authorities and

victims could use the proposed solution in connection with Pennsylvania

State University’s furtherance of Jerry Sandusky’s crimes through a

“conspiracy of silence.”16 This proposed solution to the institutionalization

of sex crimes against minors comes in the form of a proposed John Doe

7 Id. at 60–61.

8 See generally Timeline: Philadelphia Archdiocese Trial, N.Y. TIMES, http://www.

nytimes.com/interactive/2012/06/01/us/priest-trial-timeline.html (last visited Jan. 3, 2014)

[hereinafter Child Abuse Timeline].

9 See infra Part II.

10 See infra Part IV.B.

11 See infra Parts II, V.B.

12 See infra Parts II.B, V.B.

13 See infra Part II.C.

14 See infra Part VI.

15 See infra Part V.C–E.

16 Steve Eder, Former Penn State President Is Charged in Sandusky Case, N.Y. TIMES,

Nov. 2, 2012, at B9 [hereinafter Eder, Former Penn State President Charged].

2014] PRIESTS AND PENN STATE 169

Statute (Statute).17 This Statute imposes strict liability on an institution for

its employees’ sexual crimes against minors and also incentivizes plaintiffs

to prosecute an institution for its involvement in their victimization.18

The institutionalized cover-up is a modern problem that the law has yet

to resolve. The purpose of this Comment is to propose a statute equipped

to impose liability upon the Pennsylvania State University (Penn State or

university) for its role in covering up and fostering the crimes of Jerry

Sandusky. This Comment begins by discussing the prosecution of high-

ranking church officials, which serves as a model of imposing liability on

the institution itself.19 Next, this Comment examines the Racketeer

Influenced and Corrupt Organizations Act20 (RICO) as a potential cause of

action for imposing liability on institutions for sex crimes committed by an

employee.21 Thereafter, this Comment examines different theories of

liability and culpability to probe the foundations for imposing vicarious

liability on an entity.22 Lastly, this Comment examines the background

and legal proceedings involving Jerry Sandusky and other employees of

Penn State to determine the adequacy of the legal charges against those

involved.23

As a means of holding Penn State accountable for its role in fostering

Jerry Sandusky’s crimes, this Comment proposes a John Doe Statute.24

This Statute imposes strict liability on institutions when their employees

commit a sexual crime against a minor, and it also includes specific civil

and criminal penalties that offer a more certain means of accountability for

the institution and justice for the victims.25 Finally, this Comment

concludes by explaining the advantages of this Statute, exploring how it

could help Sandusky’s victims obtain justice, and urging institutional

accountability to counter the modern problem of the institutional cover-

up.26

17 See infra Part VI.

18 See infra Part VI.

19 See infra Part II.

20 18 U.S.C. §§ 1961–1968 (20 12).

21 See infra Part III.

22 See infra Part IV.

23 See infra Part V.

24 See infra Part VI.

25 See infra Part VII.

26 See infra Part VIII.