By Mara Wishingrad
In his article, “Penn State’s Tragedy Enabled By Coaches and Others Who Looked Away,” Forum director Thane Rosenbaum argues that the moral failures of Joe Paterno, Mike McQueary and Graham Spanier were aided by a “a lackluster legal system.” Because there is no legal duty to rescue, these men are immune from criminal punishment. In place of the traditional legal remedy of jail time, Paterno, McQueary and Spanier must instead face moral censure.
Does this form of punishment fit the crime? Perhaps.
Public shame is powerful and common form of extra-legal punishment. As Rosenbaum points out in his article, in situations where there are no formal legal consequences for a moral failure, “the community responds with its own harsh judgment and exacts a punishment of moral censure.” In some ways, moral censure may seem like a more powerful punishment than jail time. Jail time in the case of McQueary et al. would likely be finite, while moral censure will follow these men all their lives. Furthermore, with the aid of plea bargains and other such legal tactics, the Penn State trio might be able to mitigate or avoid their sentences. Public shame, on the other hand, is inescapable.
However, while moral censure may seem to be an appropriate remedy for moral failure, it may be an ineffective deterrent. Perhaps if there were an affirmative legal duty to rescue, McQueary et al. would have taken action to prevent Jerry Sandusky’s atrocious crimes. If this is true, Rosenbaum was correct to conclude that our legal system aided these men in their moral failure.
Tags: joe paterno scandal, penn state moral failure, penn state scandal, penn state tragedy
I absolutely agree with both you and Rosenbaum that the legal system helped perpetuate a lack of duty to intervene on the parts of McQueary and others. Moreover, I think that the moral censure that these men will face as a result of their failure to do what was right is an appropriate response from their communities and I hope that it does not fade with time.
However, if there were a legal system that did not allow moral failures such as theirs to go unpunished (i.e. if these men were legally accountable for their moral wrong-doings), would they have acted differently? If their personal moral compasses did not make them act correctly, would having a legal system that punished their failure to intervene really make a difference in their and others’ thinking that leads persons to simply let moral injustices and criminal activity continue as they stand by?
All of this is true but jail time in our society carries with it a degree of moral censure and shame. A criminal record must be displayed everywhere (like a scarlet letter) – it creates alienation, prevents people from getting jobs, apartments, etc. Additionally, the legal system recognizes it. Think about sex offender registries, in addition to everything I listed above, cities like Miami have laws that basically prohibit anyone registered as a sex offender from living in the city and every location has these laws to a certain extent. So moral censure exists every time there is a crime even when “justice” has already been served in jail.
In response to Kara’s comment: I would argue that, if the legal system did impose penalties for failing to rescue, Paterno and others might very well have responded earlier, even if one’s initial impulse might be to turn a blind eye.
While an argument could be made that the law should not (or cannot) “force” people to behave morally, I believe the law can certainly encourage moral behavior. One of the functions of the law is to shape or control (with varying degrees of success) the way people act. For example, if shoplifting were merely a moral crime, and not a legal one, many more people might give in to an immoral instinct to take what does not belong to them. The law, in many ways, exists as a counter to one’s basic instincts and should encourage people to do the right thing, even if their gut reaction to a situation might be to walk away.
The McQueary scenario has bothered me from the very beginning of this scandal. I am not so sure that I find his behavior as morally repugnant as most people have made it out to be. I think Coach Paterno and the others involved are far more culpable legally and morally speaking. I think if you take a look at the situation he was placed in, as a graduate assistant, at a program he lives and breathes, with a coach that he most likely looked up to for a large part of his life (referring to Sandusky here), expecting or even considering requiring him to act fluidly and effectively is problematic. Clearly he was disturbed, he immediately left the facilities and called his father and it may be the case that he actually contacted the authoroties, new details are currently emerging on this aspect. But regardless, I can envision McQueary being in a state of shock at this point in the timeline considering everything that he knew and idolized had just been destroyed by the actions of a man that I’m pretty sure had a significant place in his life. McQueary’s actions convince me that he was interested in ensuring that this horrible behavior never occur again. I believe that one who says that the morally right thing for McQueary would have been to immediately interject in the scene that was taking place is slightly ignorant of the other elements that exist. Assuming McQueary actually contacted formal authorities outside of Coach Paterno, I disagree with the majority who believe that anything short of breaking up whatever was taking place in the shower was morally insufficient.
I totally agree with you. The fact that it is no duty to rescue is a huge problem. The thing is that people don’t really care about each other and don’t want to be involved in a problem which not their. I think that the US legal system needs the duty to rescue because more than a legal obligation, it changes also the relationship between people like in Europe.
I am not sure that a legal duty to rescue would have even deterred these men in this situation.
Paterno, Sandusky et al. all believed that they were above the law. They thought that they ruled Penn State and the town. They never thought this would come back to bite them.
I think McQueary bought into that vision and failed to report what happened because of that.
Paterno and the AD, as leaders, had a responsibility. Their failure is the greatest. People – including teenagers – put their faith in those men and they abused it. McQueary’s failure is not as great, but a failure nonetheless
That being said, I am completely in favor of a duty to rescue.
In response to Chris’s comment, I’m not really sure how you can say Paterno and the athletic hire-ups are more responsible than McQueary. Not to defend him, but we’re still not sure exactly what Paterno knew. McQueary, on the other hand, was a grown man who was an eyewitness to a horrific crime. There was absolutely no reason for him not to go directly to the police. In cases such as this, there absolutely should be a duty to rescue.
In this situation, I believe that an affirmative legal duty to rescue would have been necessary in order to compel Mike McQueary to take action. The issue here was that there was no real incentive for him to come forward with the information. With such a premium on protecting the Penn State football program, he had absolutely nothing to gain by reporting the incident to the police. Creating a legal duty to rescue would have completely changed the nature of the incentive structure here.
However, at the end of the day, it is extremely difficult to believe that, having seen what McQueary saw, he did nothing to remedy the situation. Incentives aside, that kind of moral failure is hard to believe.