What Penn State, Horace Mann, the Ultra-Orthodox Jewish Community, the Roman Catholic Church, and the Fundamentalist Church of Jesus Christ of Latter-Day Saints Have Taught Us: We Need Child-Sex-Abuse Whistleblower Laws

By Marci A. Hamilton (Justia.com)
June 14, 2012

The latest child-sex-abuse debacle is the cover-up involving a series of men who abused children at the elite New York private school Horace Mann. Add that to the now well-known stories of powerful men covering up abuse at Penn State, within the ultra-Orthodox Jewish community in Brooklyn, within the Roman Catholic Church, and within the Fundamentalist Church of Jesus Christ of Latter-Day Saints, and it is safe to say that there is something very wrong with the way in which men in power at male-dominated institutions have handled child sex abuse.

In each of these cases, the men in power have learned about heinous child sex abuse, and then simply sat on their hands.

Some Examples of the Failure to Zealously Prosecute Child Sex Abuse

Most recently—in fact, just this week—we learned that, in 2001, in a series of emails among Penn State's then-President Graham Spanier, Gary Schultz, and Tim Curley, the three decided that the "humane" thing to do was not to go to the authorities about Jerry Sandusky's sexual abuse of children. That is to say, they left Sandusky at large, unidentified as a child predator, in the midst of circles of children, from the Penn State/Second Mile football camps to the local high school football teams. This rings of the Catholic bishops' practice of forgiving abusers, and then shuttling them from parish to parish.

Prosecutors also have, at times, been less than aggressive in going after abusers in religious communities. For decades, it was commonplace for district attorneys to decline to prosecute Catholic priests who were accused of abuse, out of respect for the bishops who asked not to have their dirty linen aired in public. The D.A.s, along with anyone else who learned about such abuse, believed at the time that the bishops would do what was best for children.

Likewise, Utah's Attorney General, Mark Shurtleff, has a sorry record of failing to avidly pursue polygamists (who have routinely chosen girls as wives) in the Fundamentalist Church of Jesus Christ of Latter-Day Saints ("FLDS") and other fundamentalist sects. Instead of initiating prosecutions for polygamy, he set up a public committee of polygamists and members of his office to meet on a regular basis, thereby placing the state's official imprimatur upon their felonious polygamist activities. (Anyone who thinks polygamy does not entail plucking wives from a pool of increasingly younger girls needs to do the math.)

In New York, Brooklyn District Attorney Charles Hynes had a practice of dealing with sex abusers in the ultra-Orthodox Jewish community by arresting them, trying them or taking a plea, but not releasing the name of the perpetrator. Why? First, Hynes said that making public the identity of the abuser would identify the victims as well. But that was a strange practice, as compared to his handling of abuse in other circumstances. Then, Hynes said that he had to "cooperate" with the community, which retaliated against those who named the criminals in the community's midst. His stated theory was that if he identified the abusers, someone, likely the victim, would be intimidated in the community for telling in the first place.

In sum, we have a large set of instances of child sex abuse and its attendant cover-ups, among a range of institutions. Both the abuse and the cover-ups must stop. Why? Because child predators typically abuse many children, so the cover-up decidedly favors pedophiles over children. But how?

The Legal Tools With Which We Should Attack Child Sex Abuse Crimes and Their Attendant Cover-ups: Current Statutes Provide Helpful Models

Fortunately, there are various legal tools that can make the world safer for children, including child-sex-abuse statute of limitations (SOL) reform and more comprehensive mandatory-reporting statutes—statutes with real penalties for failures to report abuse. (I've discussed both approaches before here on Justia's Verdict.)

The foregoing examples of cover-up lead me to suggest one more legal reform to put on the legislative table: a law that makes it a crime to intimidate, fire, demote, or otherwise harass someone who reports child sex abuse. In other words, I would like to see a child-sex-abuse whistleblower protection law.

In each of the examples of abuse and cover-up that I mentioned above, it sure seems like most of the men who failed to report abuse were intent on keeping their jobs.

It is plausible to believe that the behavior of those who learned about the abuse might well have been different if anyone reporting abuse were to be shielded from negative consequences, such as job loss.

There are several models already on the books for such a law. For example, jury tampering with intent to influence a juror's vote is illegal. Jurors are thus protected by law from those who would pressure them and therefore subvert justice. Moreover, an even closer fit might be provided by whistleblower laws akin to the Whistleblower Protection Act of 1989, which made it illegal to penalize federal workers who blow the whistle on corruption within federal agencies.

Finally, there are employment laws, like Title VII and the Americans with Disabilities Act, which include provisions forbidding an employer from retaliating against an employee for exercising his or her civil rights.

Protecting Whistleblowers Will Enable Child Sex Abuse to Be Reported Without Fear

Whistleblower-protection laws should be a no-brainer given these precedents and given the urgent need for a law-based attack on child sex abuse. Any person or organization that punishes someone for reporting child sex abuse should be subject to criminal penalties. Such penalties would, for instance, empower a priest who lived in the rectory with a fellow priest who brought boys and girls into his bedroom to report the likely abuse, because the bishop would face criminal penalties for punishing the reporter.

Such laws would also have given support to Penn State's Spanier, Curley, and Schultz, and given them a chance to break from their huddle over "humane" treatment into the clear space of the direct action that is needed to stop monsters like Jerry Sandusky. Moreover, such laws would hand prosecutors a weapon to eradicate the entrenched patterns of abuse that have been sewn into the very fabric of isolated communities.

Over this week, I have heard one person after another wonder aloud, with the start of the Sandusky trial and now, with the Horace Mann revelations, "When will this stream of child sex abuse stories ever end?" Here's the answer: when legislators get their priorities straight—passing whistleblower measures, giving teeth to mandatory-reporting laws, and reforming child-sex-abuse statutes of limitations. Without these reforms, we are choosing to let the predators win.

Marci A. Hamilton is a professor of law at Cardozo School of Law, and the author of Justice Denied: What America Must Do to Protect Its Children, which was just published in paperback with a new Preface. Her email address is This e-mail address is being protected from spambots. You need JavaScript enabled to view it .