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What If Penn State Happened to You?

by Ed Ryan

It'll be interesting to see how the PPM treats sports stations during the month of November. Speaking for myself I have never listened to as much sports radio as I have since this story was first reported. The nightmare unraveling day-by-day at Penn State has me tuning into ESPN radio the minute I wake up, and listening to any news or sports station that has a live stream and is talking about the topic.

Someone forwarded me this clip from Entercom's WEEI in Boston yesterday and I had to listen to it right away. I'm sure there are many like me, who want to hear more. It's partly because this is so unbelievable. I think we are all waiting for someone to say this never happened or for a real explanation. Yet, every day it just seems to get worse. We took this topic, altered it a bit, and threw it at attorney John Garziglia. Here's the scenario and here's John's answer.

Radio Ink asks:  You've just been hired. You are the night guy. You need the money. You hear something in the GM's office that you know isn't right. The only 3 cars outside the building are yours, the married (male) GM and the 16 year old station Intern. What do you do?

John Garziglia says:

This is a tough position for a new hire to be - witnessing or having knowledge of a possible felony taking place by management on the premises of your new employer.  First of all, it depends upon what the employee believes is not right.  The question states that the new employee hears something he or she knows isnt right.  If the new employee hears or witnesses a situation in which someone is in imminent danger, that is what calling 9-1-1 is for.  That is an easy situation. 

The more difficult situation is that of what is painfully being played out in the news media this week with regard to Penn State that of the possible child molester with a willing victim.  The thoughts that will go through a new hires mind will range from its not my business I want to keep my new job to wanting to do the right thing. 

To delve deeper into the Radio Ink question, I consulted noted white collar criminal defense attorney Kurt Stakeman at my law firm. 

Kurt notes that the first question is the age of a minor or child in the particular state.  Generally, states criminalize sexual contact between an adult and a minor.  That prohibition can be very broad and include any contact or act for a lustful purpose by the adult.  In some states there is an age limitation such as the adult must be five years older than the minor.  Thus, what the GM might be doing might or might not be against the law.

Kurt says that the second question is the duty to report.  The general rule is that a citizen has no duty to report a crime.  But, there is an exception for crimes against children.  Many states have a mandatory reporting law that requires someone with knowledge of sexual abuse of a child to report that information to the police (or in some states to the social services department).  Some states make reporting mandatory only if the witness is in a position of authority or custody of the child.  Failure to report unlawful sexual activity involving a child may well be a crime.

Kurt warns that, just to be clear, there is a distinction between a duty to report and a duty to respond truthfully to police if asked about a crime.  Even if your state does not mandate reporting, it could well be illegal not to tell the truth when asked by police about sexual activity involving a child.

Kurt states that scenarios like the one presented are a perfect example of the usefulness of an anonymous corporate hotline to the president, general counsel or human resources head.  This Radio Ink situation presents a close question on whether there is sufficient evidence to call the police.  A credible corporate hotline would give the employee somewhere to turn.

There is also, of course, the angry father with a shotgun issue but that is a practical and not legal problem.  And, there is the FCC perspective.  The FCC has saved a special place in its enforcement activities for convicted child molesters as to whether a convicted individual is qualified to be the licensee of broadcast stations, revoking the five Missouri radio station licenses of a convicted child molester some ten years ago.  Sadly, even a former FCC commissioner appointed in 1982 was later convicted of sexually assaulting a neighborhood boy. 

The issues presented by knowing of a possible child molestation also illustrate one more important thing.  Any person at any time can, as a witness to a crime or otherwise, have an immediate need for advice from a good criminal defense attorney.  It makes sense to have the phone number of such an attorney handy, hoping that you will never need it.  Good criminal defense attorneys absolutely welcome a call on issues like this one, not because they can charge you hundreds of dollars (they usually will not), but because they know that you, or someone you know, sometime in your life will likely need his or her services for the big one.  As described above, whether or not the police or a corporate hotline should be called, or nothing done at all because such an assignation, while perhaps unwise, is legal in your state, is something that is ultimately a matter of the law in each state.  While this makes life complicated, it is also the nature of our criminal justice system which has largely left what is and is not criminal behavior to the discretion of each state. 

John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryan@radioink.com.




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