What the Freeh Report Does—and Does Not—Tell Us About Child Sexual Abuse at Penn State

Updated:
Posted in: Criminal Law

Louis Freeh, a former head of the FBI, is a model of integrity and the perfect person for Penn State to have chosen to conduct its internal investigation of allegations involving serial child predator Jerry Sandusky, and involving the men in power at Penn State who failed to protect children from Sandusky even after they should have know he was a threat.  The 162-page (267 pages with Appendices) Freeh Report, released yesterday, July 12, pins blame on Penn State former President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley, and legendary football coach Joe Paterno.

As Freeh noted at his press conference and repeatedly in the Report, these four men put the image of Penn State and Penn State football ahead of the safety of children.  They were callous, reckless, and wrong.

In the words of the Report, “In order to avoid the consequences of bad publicity, the most powerful leaders at the university—Spanier, Schultz, Paterno and Curley—repeatedly concealed critical facts relating to Sandusky’s child abuse.”  We have heard this song before in the Roman Catholic Church, among other institutions.  Just the names have changed.

The Freeh Report Rightly Places a Share of Blame Upon Paterno—as Well as on Spanier, Schultz, and Curley

Anyone who wants to continue romanticizing Paterno’s role must stop now: According to Freeh, Paterno “was an integral part of this active decision to conceal.”

With such a finding now having been made by such an unimpeachable investigator, Penn Staters like myself must learn to live with what Catholics have been dealing with for the last decade: the realization that the men we have idolized are just humans after all.  Let’s face it:  humans must be held to account for their mistakes.

The Penn State culture and these four men in particular, the Freeh Report concludes, “empowered Sandusky to attract potential victims to the campus and football events by allowing him to have continued, unrestricted and unsupervised access.”  The Penn State football culture and these men “provided Sandusky with the very currency that enabled him to attract his victims.”

Beyond pointing an accusatory finger at these four men, the Freeh Report roundly condemns the insular environment of the Penn State football program, and of the University, which led them to be unaccountable when it came to addressing basic safety concerns regarding children.  This is the same pattern that we have seen repeatedly in institutions dealing with child sex abuse.  When the institution at issue is so self-referential that it keeps its own secrets in order to protect its external image, the vulnerable get swept aside.  Whether those in power are too busy or too self-important, they let themselves act in an inhumane fashion.  The same pattern was most recently identified in Brooklyn, New York, where even the District Attorney had allegedly cooperated for years to keep the identities of child abusers in the insular ultra-Orthodox Jewish community secret.  Institutions exist to perpetuate themselves, and insularity sends that instinct into hyperdrive.

The Freeh Report on Penn State is a blockbuster, but it is also just the beginning of the journey to justice for the victims of Penn State’s, Second Mile’s, and Sandusky’s criminal behavior.  No one should take the Freeh Report as the last word, because a criminal trial against Schultz and Curley (and perhaps even Spanier, as well) will be held later this year.  (Paterno, as readers may recall, passed away before criminal charges could be filed.)  The criminal justice system will provide even more information on, and even more transparency with respect to, these men in power and this institution.  And then there will be the long trail of civil lawsuits that will doubtless be filed by the many survivors of this conspiracy to endanger children.

The Freeh Report’s Recommendations

For the full recommendations of the Freeh Report, readers may want to look at Chapter 10 of the Report, which begins on page 127.  Here are the recommendations, in summary:

The Freeh Report states that the Counsel, meaning Freeh himself, gave the PSU Board of Trustees about 15 recommendations, back in January of this year, which have already been at least partially implemented. Those recommendations are designated by asterisk in the Report.

Then, yesterday, Wednesday July 12, the Counsel put forth approximately 120 additional recommendations, issuing them along with the full Report.  The recommendations are broken down into eight broad categories: (1) Penn State Culture; (2) Administration and General Counsel: Policies and Procedures;  (3) Board of Trustees: Responsibilities and Operations; (4) Compliance: Risk and Reporting Misconduct; (5) Athletic Department: Integration and Compliance; (6) University Police Department: Oversight, Policy and Procedures; (7) Management of University Programs for Children and Access to University Facilities; (8) Monitoring Change and Measuring Improvement.

The Recommendations are addressed to Mr. Freeh’s client: Penn State.  They lack the kind of larger picture that is provided by, for example, the 2005 Grand Jury Report

documenting the coverup of child sex abuse by the Philadelphia Archdiocese, which I have discussed in this prior column.  In that Report, the Philadelphia District Attorney’s Office suggested a series of legal reforms for the protection of children.  The Freeh Report regarding Penn State, in contrast, does not take that step.

This omission—which is somewhat surprising given Louis Freeh’s former position as Director of the FBI—is a reminder that this was a report paid for by a singular client, and not a broad-ranging inquiry by an office accountable primarily to the public.  Thus, no one should ever take the Freeh Report as the final word on what must be done to protect children across society, or even, arguably, at Penn State.

The Narrow Scope of the Freeh Report:  We Do Well to Remember That It Was Commissioned by Penn State, and That It Only Covers Certain Years of Sandusky’s Abuse

As scathing as the Freeh Report is, its scope is also relatively narrow.  It is limited to the years that the public already knew about: 1998 to the present.  The grand jury report that led to the trial of Sandusky, at which he was convicted on 45 of 48 charges for child sex abuse, covered these years alone.  But we know from both the Sandusky grand jury report and the evidence that came out at trial that the elements of Sandusky’s victimization of children were in place well before 1998.

Sandusky started coaching at Penn State in 1969.  His charity, The Second Mile, from which he plucked boys who were in precarious family situations, was established in 1977.  One victim after another testified at Sandusky’s trial how they had been identified through the Second Mile, and then groomed, and ultimately abused by Sandusky.  Freeh knew all of this, which is confirmed in the Report.  And yet the Report is conspicuously silent on the years of 1977-1997, making no findings and drawing no conclusions regarding Sandusky, and his involvement with children on campus or otherwise.

Nor is there mention in the Freeh Report of The Second Mile’s activities on the campuses of Penn State, or its involvement with the football program, from 1977 to 1995.  The Report does establish that Penn State changed its policies regarding children on campus several times.  In 1992, Penn State adopted a new policy regarding “minors involved in University-sponsored programs or youth programs held at the University or housed in University facilities,” which is telling.  Furthermore, that new policy was revised several times, and was conspicuously revised yet again in April 2012, to include the phrase “at all geographic locations.”

Freeh also knew, through the criminal trial of Sandusky, that the modus operandi that had occurred at Penn State had continually repeated itself.  Why would Freeh’s team think that Sandusky suddenly started behaving  this way 30 years after he started working for Penn State?  I sincerely doubt that the team did.  After all, Kenneth Lanning—who was the FBI’s premier child sex abuse expert for 30 years, including when Freeh was Director—documented that abusers typically have many victims, over many years, and abuse over the course of their lives.

Moreover, Freeh also must have known, when he took on the task of researching and completing his Report, about the well-documented patterns abuse in the Roman Catholic Church, the ultra-Orthodox and Orthodox Jewish faith, the Boy Scouts, the Church of Jesus Christ of Latter-Day Saints—not to mention in the Fundamentalist LDS—the Citadel, Syracuse University, and many other institutions.  Surely, he put two and two together to conclude that 1998 did not initiate Sandusky’s reign of abuse.  Therefore, perhaps the fault for the limited scope of the report should be laid at Penn State’s feet.

In the end, the Freeh Report interprets the data available to date, and tells the story that was already emerging through the criminal justice system.  It was important for that story to be told in the way that Freeh told it, bluntly and unforgivingly.  But that still leaves a grave and important question to pose to Penn State, my alma mater: What happened between 1969 and 1998?

Posted in: Criminal Law

  • DJF

    Thank you Ms. Hamilton for a very informative and truthful article, once again, on the tragedy of sexual abuse of children being facilitated by institutions protecting their reputations over the safety of our kids!! Please keep fighting for justice for all children, past, present, and future!!

  • Jim in Dallas

    Professor Hamilton, thank you for your informative and insightful article. I am somewhat surprised at the Board’s limited approach to Sandusky’s predatorial rape behavior at the university. It is as if they are once again only responsing publically to what the public knows, and if they don’t dig deeper, maybe, just maybe, the public will never find out, even if a few abused kids get forgotten along the way. This is the same “self-referential” behavior that got them in this spot in the first place. Their true moral value will be determined by what they do from this point forward.

  • Excellent question. I expected more on that too. When the investigation began, they said it would go back all the way to the 70s, did they not?

    Perhaps they simply weren’t able to find enough evidence going back that far. A lot of the people who were in power then have died or aren’t able to testify now. There was no email, so maybe not a lot of documentation. And Freeh didn’t have subpoena power, so he probably had to rely heavily on what already came out in the criminal trial.

  • Let the potential plaintiffs make their case for pre-1998 abuse. Why should PSU provide the weapons for their own destruction? And I don’t even like Penn State because my Md Terps could never beat them when I was growing up.

  • A great article! Congratulations.

    I dare to add an important caution. Prosecution does not equal prevention. Reparation will only equal prevention if civil courts looks at behavioral science on what institutions can do to prevention.

    Given the prevalence of these victimizations and denials by large institutions mentioned in this great article, we need an additional component that looks at tackling the causes and protection potential victims. This requires actions by these institutions to face and not deny the problems as well as become active intervenors and proponents.

    The Canadian football team in Vancouver BC Lions is one example of becoming part of the solution. They worked through their own attitudes and promote men who do not engage in sexual assault of women. Penn State football teams and actually every football team in America could do the same, but broaden it to include children.

    Another interesting Canadian example is a program called Fourth R which is focused on youth relationships. This would help young boys and girls know what is acceptable and how to limit the damage. This has got accolades from WHO Violence Prevention.

    PS Universities except for programs like Green Dot at U of Kentucky are in denial about sexual assault but when they face challenge solutions abound.

  • Rememberthe Alamo

    Someone had better ask WHY Freeh has Italian Citizenship, too?
    Give me a break…come back to the USA and take mo money…as if we can believe anything he determines… What scum in our administration? No doubt Freeh didn’t give up or relinquish his USA Citizenship: some Oath of Office taker…GET OUT~!

  • Rememberthe Alamo

    ATTN: Media, amazing how the majority of the photos are of Patern: simply because of name recognition…that is disgusting…to focus on one person…more of him than the actual predator…get a life…you and the Kenyan god king PROPAGANDA MACHINE need to give the public a relief and depart from the USA ASAP!

  • Stan Katz

    I have not seen or heard any mention the very important fact that ALL the children were adopted. Why? Not to invade so called privacy but the circumstances under which the adoptees came to be under the same roof with this man would be of interest. He is now classified – but perhaps he has always been attracted to males. There are many good women out there that make deals – and act as “beards”. He gave his wife motherhood – just not in the usual way! The ages at adoption and birth mothers’ situations could lead to more under the table deals!

  • Rob

    I agree about protecting children, but you as a lawyer, should realize that Freeh makes too many assumptions when it comes to Paterno. He has no proof except for three emails by Curley, who was not deposed. Since we do not know what Paterno spoke or said to Curley, they are one-sided. Paterno is dead, and Curley has been indited for perjury–will he really answer truthfully when making up a story about what was said by Paterno would get him off the hook. Freeh states that Curley consulted with Paterno when the email said he spoke to Paterno. Consulting with and speaking to someone is quite different. This report is flawed in his conclusions about Paterno, and flawed over all because he could not interview Curley or Schultz. He did not have all the facts to make all of the accusations in this report.