When we left off last week, the Boston Criminal Lawyer Blog was discussing what other charges, and what other potential defendants, might exist in the continuing debacle of the Penn. State sexual assault scandal.

First, an admission about which you know. I do not practice in the state of Pennsylvania. I am a Massachusetts criminal defense lawyer. Therefore, since Massachusetts and federal law are the areas in which I practice, let’s theoretically move Penn State to Massachusetts for purposes of today’s blog.

We have examined many instances wherein the prosecution decides that a criminal matter is so bad, or, at least, news worthy, that one defendant is not enough. Because things do not usually happen in a vacuum, the theory of “being our brother’s keeper” is often given prosecutorial teeth in such instances. While in the past, blame for allowing an environment in which the criminal actions could take place with impunity was dealt with in civil litigation.

However, as we have also discussed, those days are in the past.

When dealt with in civil litigation, the bedrock of negligence cases is a duty owed to someone…usually, the alleged victim. This is not to say that the theory of negligence is the only potential basis for civil cases, but let’s limit it to that for this posting. After all, this is not the Boston Civil Lawyer Blog, it is the Boston Criminal Lawyer Blog. Besides, the good folks at Altman & Altman, LLP. Have a number of civil law related blogs.

In a situation such as Sandusky’s crimes, clearly a duty was owed to the kids who were brought onto campus. Said duty would be even clearer if the victims were actually students of the University. In any event, when reports were made about observations made of potential sexual assaults, certain people in charge had the responsibility under the law to try to, at the very least, prevent it from happening again.

While I am sure there is a duty owed to the University to protect it from scandal, it must be given less weight than the duty owed the victims at issue. Therefore, decisions to keep the matter quiet and avoid bad publicity is definitely frowned upon in a court of law.

At least, in a civil matter.

However, what about criminal liability?

Well, in the Penn State mess, I think you will find that this will be the theory behind the prosecutions of collateral folks.

While I have been decrying about novel types of prosecutorial theories being used to criminalize stupid behavior, there already exists a theory which would fit most of these matters which would not need to stretch the bounds of legal precedent and common sense.

It is a legal theory which the federal authorities use particularly frequently.

It is the alleging of a criminal conspiracy.

“How would that work, Sam? Would the government in this case allege that the officials who did not seem to act actually agree with the sexual perpetrator that they would do all they can to protect him so that he could molest at will?”

No. The conspiracy can simply involve the cover-up. In fact, it can involve the federal theory of “willful blindness”. In other words, the alleged co-conspirators could simply “look the other way” while they really had to know what was going on.

“But isn’t this a state case?”

At this point, yes. However, there are federal criminal causes of action that could be brought to bear on the matter. For example, the denial of civil rights of the kids.

“So, any such prosecutions would have to be brought in federal court?”

Not at all. Criminal conspiracies can be alleged in state court as well. Further, there are always potential charges like being an “accessory” before or after the actual molestations.

“But in those types of cases, don’t the defendants have to do something like hide the primary perpetrator or help him get away?”

Well, if there is an active cover-up alleged, then that should be enough.

This is a type of criminal prosecutions of which I believe we are going to be seeing more and more. And you should be aware of it.

“Why is that?”

Because not all criminal defendants are guilty of knowingly committing crimes…particularly when the prosecution is relying on theories like this. That means it could happen to anyone.

That’s right, even you.

What to do if you think you are heading down that road?

You know the answer to that question.

It involves retaining the services of an experienced criminal defense attorney.

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