Wednesday, November 16, 2011

In the wake of the horrifying news out of Penn State: A suggestion

The arrest of ex-Penn State defensive coordinator Jerry Sandusky and the firing of Coach Joe Paterno and several top Penn State administrators, including the university president, is only the beginning.

The investigation into what happened and, perhaps even more important, why it was covered up for so long, will drag on for some time. There may be more criminal charges; the civil suits have not yet begun. The ABA Journal: Law News Now page reported last Friday that the school's board of trustees has asked one of their own, "Kenneth Frazier, a Harvard Law School graduate who is the chief executive officer of Merck & Co. and its former general counsel," to head up the investigation. Meanwhile, according to that same ABA article, ex-Coach Paterno has lawyered up, retaining J. Sedwick Sollers III, the managing partner of King & Spalding's Washington, D.C. office.

Inevitably, there will be calls for new, tougher disclosure laws to prevent this situation from ever happening again, and not just in Pennsylvania.

Disclosure laws are useful and necessary. But, despite the best of legislative intentions, adding new disclosure laws to those already on the books, or toughening up existing laws, will not be sufficient by themselves. Increasingly harsh laws may quickly reach a point of diminishing returns. And new disclosure laws run the risk of failure from the outset because of the inevitable operation of human nature -- instinct, if you will.

I do not say this as a lawyer, or as a parent (although I am the parent of five children, all of whom were altar servers in our parish Catholic church in their turn). I say this because, some years ago, I was recruited by my pastor, to take training provided by Praesidium, Inc., an organization that is advising religious orders on how to implement the charter for the protection of children adopted by the United States Conference of Catholic Bishops in 2002 (the Dallas Charter). (Technically, I've been told, the Dallas Charter applies only to American Catholic dioceses, but the Conference of Major Superiors of Men resolved to implement the Dallas Charter in 2003.) Thereafter, two religious orders with provincial houses in the Chicago area asked me to join the Review Boards they set up in response to the Dallas Charter. In the years since, I've been forced to confront some terrible facts and I've thought a lot about what I've heard and seen.

Without violating any confidences, I can say this: Pedophiles are usually highly regarded, beloved, even charismatic. Parents would never entrust their child to a man who gave them the creeps -- but good ol' Fr. X is so nice -- and he's taken such a special interest in our son.

Too often this has turned out to be an interest similar to the interest a lion takes in a struggling calf in a wildebeest herd.

Just as the lion must separate the calf from the herd, the pedophile must isolate and groom the child -- and its guardians. Coach Y took Junior for ice cream on Friday and he's asked us to let him go fishing with him up at his lake house after the season. Isn't that nice?.

The pedophile is typically not a drooling monster that lunges out of a dark alley; rather, he is someone who insinuates himself into his victim's family over time. He carefully builds up trust before he cruelly abuses it.

The punchline to a thousand old jokes is, "Who are you going to believe? Me or your lying eyes?"

But the sad truth of it is that the pedophile, confronted with anything short of irrefutable evidence of misconduct, will ask something very much like that question -- and, all too often, people will choose to believe the pedophile.

This is a consequence of human nature: All normal people want to believe that their own judgment is sound. When confronted with a challenge to a carefully constructed opinion of "the nicest man I ever knew," a person tends to discount, to minimize -- to disregard entirely -- the evidence of wrongdoing that conflicts with that opinion. If a favorable opinion of a neighbor, friend, pastor, scout leader, or coach can be shown to be so completely wrong, the normal person would naturally ask what other aspects of his or her judgment are unsound. Rather than revisit every judgment he or she has ever formed, the normal person prefers to accept the pedophile's explanation. And the pedophile seems to always have an explanation. (Mr. Sandusky's explanations this week, in response to questions by NBC's Bob Costas, made many viewers ill -- but most viewers knew Sandusky only by the terrible allegations made against him; TV viewers were not evaluating what he had to say in light of years, or even decades, of personal acquaintance.)

In the furor surrounding the disclosures at Penn State, the media talking heads are screaming that responsible people at the school "looked the other way," enabling the pedophile's continued crimes. But these people did not necessarily look the other way; they may have looked at what was right there in front of them, and did not believe the evidence of their 'lying eyes.'

And there's another aspect of human nature that comes into these terrible cases: There is the instinct to hush up scandal. It's almost a pre-human instinct, the instinct to curl up into a ball like our tiniest mammalian ancestors and hope that the forest fire passes by without consuming us. Faced with a likely scandal, many people react like a small animal that senses a wolf in the bushes: If the animal holds completely still, the wolf may not see the animal and move on.

Yes, I realize that it makes no logical sense to think that an institution might somehow be "protected" by allowing a predator to continue locating and grooming victims -- but persons feeling the hot breath of scandal may not behave logically. And we know it happens all the time: Governments routinely stamp unhappy news "top secret" in hopes of keeping it from the public. Bishops would pluck a pedophile who'd been identified in one parish and slip him into another, unsuspecting parish (although, even then, in the bad old days, the Church would frequently send the molester to some place like St. Luke's Institute in Maryland -- there were a handful of such places -- in an effort to "cure" him). In Jane Doe-3 v. White, 409 Ill.App.3d 1087, 951 N.E.2d 216 (4th Dist. 2011), it is alleged that a downstate public school district gave a "neutral" reference to a child-molesting teacher -- allowing that teacher to find another teaching job, and continued access to children, in a different district (this case is now pending before the Illinois Supreme Court).

In other words, no matter how many present and former Penn State employees are sent to jail, no matter what draconian laws are enacted in response to this tragedy, human nature will continue to operate in ways that may allow pedophiles to find, groom and molest new victims.


Rather than fight human nature, what if we work with it instead?

We can't hope to identify every sexual predator in our midst, especially when they can be among the nicest, most charming people we may know. We could shun the company of all nice people, perhaps, but that would be impractical. And unpleasant.

But we can effectively deny pedophiles the access they need to groom and prepare their victims simply by realizing that a normal, truly nice person should not want to be alone with a child not his own. If the Rev. Z wants to take the church youth group camping, and he puts out a plea for other parents to assist, and they all go off together, that's probably fine. But if, when they get there, the Rev. Z wants to take Johnny Jones, just the two of them, out on the wilderness trail for a night or two, that's not fine. That's a flashing red light, sirens-blaring warning.

I've heard parents lament that we may have to destroy our children's innocence to protect them from the far more brutal loss of innocence that occurs to victims of pedophilia. While we can't protect our children from the news, I submit we may be able to educate them about how to protect themselves without getting unduly graphic. We should teach our children that they should be wary of ever being alone with a grown-up unless it's Mom or Dad. And we can teach our children that grown-ups shouldn't keep secrets from other grownups. If Coach Y tells Junior not to tell his mother that Coach has bought him ice cream after practice, just for him, not for the other boys, because Junior is so "special," that's something Junior should tell Mom right away. At least when it comes to protecting kids from pedophiles, we don't have to scare kids unduly with warnings about 'touching that makes you uncomfortable' because if the kid reports the first time Coach Y buys him ice cream, the parent can go into protection mode before anything is likely to happen. Grooming takes time. The pedophile won't typically try something the first time he gets a child alone. Deny the pedophile that time, and thereby prevent the crime.

If Coach Y meant nothing sinister by buying Junior ice cream, he won't bristle when the parent offers to join him, next time, and buy Coach ice cream in gratitude. But if Coach Y continues to look for ways to isolate Junior, the child's parent should become more and more suspicious, and more and more vigilant. If Coach Y gets pushy about it, the parent can always call the police or DCFS.

Disclosure laws may expose sexual predators -- but only after they've harmed a child. That's too late. Realizing that "nice" people shouldn't want to be, and should certainly never troll for opportunities to be, alone with a child not their own, and acting in accordance with that realization, may protect children in the first place. A fire can't burn without oxygen. A pedophile can't harm a child without long-term private access to that child.

Additional reading: Marci A. Hamilton, The Penn State Scandal: Contrasting the School’s Approach With the Catholic Church’s Approach to Its Own Child Sex Abuse Scandal ( 11/11/11);
Tom Roberts, Abuse and cover-up: Penn State's Catholic-like scandal (National Catholic Reporter 11/10/11);
Glenn E. Rice, Judy L. Thomas, and Mark Morris, Bishop Finn avoids indictment by entering diversion program (Kansas City
Star, 11/15/11)

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