Posts Tagged ‘Penn State’

Holding Medical Professionals Accountable for Child (Sexual) Abuse

May 23rd, 2012 3 comments

I’ve just posted to the Social Science Research Network my forthcoming article (“Duty Per Se: Reading Child Abuse Statutes to Create a Common-Law Duty in Favor of Victims”).

My argument, for the non-lawyers out there, is that laws that impose a duty on medical professionals to report child abuse should also provide the basis for a tort claim against those same providers. I wrote the piece for a symposium about “Dr.” (ugh) Earl Bradley, a deranged man who molested hundreds of children and even infants over the course of many years. And it became obvious to me that existing laws weren’t doing enough to stop this sort of madness, and that only the threat of tort law could get the medical professionals to speak out against one of their own. (I’m speaking in gross generalities here, of course.)

We’ve learned from the Penn State horror story involving Jerry Sandusky, from the exhausting spectacle of the Catholic cover-up, and from too many other sources that institutions protect themselves. Tort liability won’t stop this, but it might put a dent in it. And that’s well worth doing.

For those who want to get their law geek on, here’s the link, and here’s the abstract (in case this isn’t enough to stop you, you can download and read the whole thing by toggling over there….)

This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use “duty to report” statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.

The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?

In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.


Dimensions of Personhood: Reflections on Penn State and Mississippi

November 12th, 2011 No comments

Last week, pundits and prognosticators were puzzled when Mississippi voters decisively rejected an amendment to the state’s constitution that would have made fertilized eggs persons, presumably entitled to all the rights that human beings enjoy. The measure, which almost surely would have been declared unconstitutional by the courts (I doubt the Supreme Court even would have bothered to weigh in), ended up being too much even for voters in one of the reddest of red states. But let’s not forget that more than four in ten voters said “yes” to the measure.

More than anything else, a “yes” vote required turning a blind eye to the complexities of life. Not only would the measure have outlawed certain forms of contraception (bringing us back to an earlier time when the state’s heavy hand tried to control reproductive decisions), and raise problems for in vitro fertilization (by effectively limiting many women to a single embryo), it would also have denied reality by fully equating even the earliest embryos to the women carrying them. In theory, this would have stopped even abortions needed to save women’s lives — by what logic, other than a utilitarian calculus that seems ruled out by the logic of this measure, could the embryo’s life be affirmatively ended in order to save the mother’s?

Such certainty in the face of such complexity is easy, and cost-free, when you’re pulling a level at the ballot box. But I wonder how those same people would have reacted had they come upon the horrific scene that confronted Mike McQueary that day in the shower at the Penn State athletic facility. Or if they had been told what happened, as was Joe Paterno. How sure are they that they’d have done the right thing? I’d like to think I’d have known exactly what to do, but you never know unless you’re in that moment. It’s humbling to think about, and the reason we need clear and unambiguous rules in place to deal with such cases. Even then, we won’t always get it right.

Perhaps thinking through some of the “what ifs” would have resulted in a different vote on personhood — so easy to state, so hard to define, and so likely to cause terrible difficulties.