Football fans and Penn State alumni around the world have been shocked by the criminal charges against Jerry Sandusky a former defensive coach for Penn State’s perennial powerhouse football team.
Just Horsing Around?
The criminal charges allege that Sandusky sexually abused eight young boys that he met through a charity that he founded, The Second Mile. Sandusky has denied all the charges, admitting only that he only “horsed around” in the shower with one of the boys that is the subject of some of the criminal charges.
Superiors Failed to Report
It is troubling that Penn State athletic director Tim Curley and Penn State Vice President Gary Schultz have been charged with perjury and failure to report sexual abuse to authorities.
Particularly disgusting are the allegations that Second Mile “pimped out” young boys to wealthy Penn Sate donors.
The turmoil has claimed the job of legendary football coach Joe Paterno.
Keeping in mind that at the moment the criminal charges are accusations only and no one has been convicted, the charges raise interesting civil-legal issues.
The charges against Curley and Schultz allege that they were aware of allegations that Sandusky was sexually abusing children on Penn State property but failed to report the disturbing allegations to campus or state police or to state child protection officials.
It appears that the Penn State employees have borrowed the playbook from the Catholic Church. Media reports from around the world have uncovered repeated incidents where officials within the Catholic Church have ignored or covered up allegations of sexual abuse against Catholic priests. See for example: The Catholic Church and Sexual Abuse
The Penn State allegations raise some interesting legal issues. In cases around North America the Catholic Church has been found liable for sexual abuse by catholic priests. Churches around North America have been ordered to pay compensation to priest sexual abuse victims.
The question this brings to mind is whether Sandusky’s sexual abuse victims (if the allegations are proven to be true) could file civil suits for compensation against Penn State.
Vicarious Liability for Sexual Abuse
In Canada employers were traditionally responsible for acts of employees committed in the course of their employment. For many years criminal acts (including sexual abuse) were considered by the courts to be outside the scope of an employee’s duties. Therefore, employers were rarely found to be vicariously liable for sexual abuse committed by employees.
In those decisions the Supreme Court of Canada set out the criteria for when an employer can be held vicariously liable for sexual abuse committed by an employee.
The Supreme Court said that consideration must be given to:
(1) Policy reasons to determine if vicarious liability should or should not apply; and
(2) Whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability.
The court went on to explain that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. It is not enough that the wrongful act or abuse took place on company property.
Vicarious liability was extended to the Catholic Church by the Supreme Court of Canada in a case known as Doe v. Bennett in 2003.
The Supreme Court of Canada said:
The relationship between the bishop and the priest in the Diocese is not only spiritual but temporal. First, the Bishop provided Bennett with the opportunity to abuse his power.
Second, Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest.
Third, the Bishop conferred an enormous degree of power on Bennett relative to his victims.
Should Penn State be held Responsible like the Catholic Church?
Sandusky’s alleged child abuse was perpetrated through a charity he founded. His “charity” work were not part of his job duties at Penn State.
Although some of the abuse allegedly occurred on the university property, the SCC’s reasoning in Bazley would suggest that isn’t sufficient to create liability.
On the other hand, Sandusky’s standing in the community and as hea of his charity were due to his reputatiion as one of Penn States coaches.
If it turns out to be true that Penn State was benefiting financially from acts of child abuse, then I think the legal responsibility becomes clearer.
Given the reasoning in the Supreme Court of Canada’s decision in Doe v. Bennett I think a strong argument could be made that if the abuse happened in Canada, Penn State could be held vicariously liable for Sandusky’s (alleged) actions.
What do you think?