The Slatest

Penn State Officials Went to Jail Over Jerry Sandusky. Could That Happen at Michigan State Over Larry Nassar?

Michigan State president Lou Anna Simon outside Larry Nassar's sentencing hearing on Wednesday in Lansing, Michigan.
Michigan State president Lou Anna Simon outside Larry Nassar’s sentencing hearing on Wednesday in Lansing, Michigan.
Brendan McDermid/Reuters

On Wednesday afternoon in Lansing, Michigan, disgraced Michigan State and USA Gymnastics doctor Larry Nassar was sentenced to 40 to 175 years in state prison for the seven counts of first-degree criminal sexual conduct to which he’s pleaded guilty. (That’s on top of a sentence of 60 years in prison for pleading guilty to federal child pornography charges; Nassar also awaits sentencing on criminal sexual conduct charges in a different Michigan county.) Over the last week, 156 of Nassar’s victims either spoke in court or had their statements read aloud. Many of them have condemned USA Gymnastics and Michigan State officials for failing to seriously investigate early complaints against Nassar, with the first allegations of inappropriate behavior—which were reportedly made to a Michigan State coach—as early as 1997. The Detroit News and Michigan State’s student newspaper have both, in recent issues, called on Michigan State president Lou Anna Simon to resign.

The nature of Nassar’s crimes, and the focus on Simon and other school officials who supervised him, obviously calls to mind the Jerry Sandusky sexual abuse scandal at Penn State. In that case, the university’s president, vice president, and athletic director were all sentenced to jail terms for their failure to alert law enforcement officials to a 2001 report that Sandusky had been seen behaving inappropriately with a young boy in a shower at the school’s football facility. (Penn State administrators are known to have been made aware of potentially inappropriate behavior by Sandusky, an assistant coach, in 1998, and other victims have said they told football coach Joe Paterno they were abused by Sandusky as early as 1971. Sandusky was not banned from Penn State facilities until he was arrested in 2011.)

How does Michigan State’s institutional response to Nassar compare to the way Penn State handled Sandusky?

An extensive Detroit News report published last week, based on testimony and interviews with victims, lists the following occasions on which Michigan State employees were allegedly told that Nassar may have committed sexual abuse:

• In 1997, a high school gymnast allegedly told an unidentified youth coach and MSU gymnastics coach Kathy Klages that Nassar had abused her. A second, unidentified youth gymnast allegedly told Klages at a subsequent group meeting that she had also been abused. Klages declined to comment on the News’ story.

• In 1999, a track/cross-country runner allegedly told an assistant coach named Kelli Bert that Nassar abused her. Bert says she does not remember ever being told Nassar had abused anyone.

• In 2000, a softball player allegedly told trainers Lianna Hadden and Destiny Teachnor-Hauk that Nassar had abused her. In 2002, a volleyball player allegedly told Hadden that Nassar had made her uncomfortable during a treatment. Teachnor-Hauk has denied receiving any such complaints; Hadden declined to comment to the News.

• In 2004, two individuals allegedly told a MSU clinical psychologist named Gary Stollak that Nassar had abused their young daughter. Stollak, who is retired, says he suffered a stroke in 2016 and does not remember anything about the alleged incident.

• In 2014, a MSU alumnus told a school doctor named Jeff Kovan that Nassar may have abused her.

Klages and Stollak, victims say, told Nassar about the allegations against him. But neither they nor Hadden, Teachnor-Hauk, or Bert appear to have reported any concerns to the university’s police department or its Title IX officials, who are tasked with ensuring that the campus maintains a safe and non-discriminatory environment for women. Kovan, the school doctor, did report the allegation he heard from an MSU alumnus to the school’s Title IX office , whose 2014 investigation cleared Nassar after three other doctors (and Teachnor-Hauk) said in interviews that Nassar’s techniques were medically appropriate. The Lansing State Journal reported last year that one of those doctors, Brooke Lemmen, subsequently resigned after the university learned she had failed to alert anyone else on campus after being told in July 2015—that is, after she’d helped clear Nassar during Michigan State’s investigation—that USA Gymnastics was also investigating him. Nassar was not fired by Michigan State until September 2016, after an Indianapolis Star article detailed allegations of abuse against him.

As to whether any of these actions may have been illegal, victims’ lawyers have said, without naming specific employees, that Michigan State staffers failed to fulfill their obligations under laws and rules that mandate the reporting of sexual assault accusations to appropriate authorities. Michigan State’s administration has responded by saying it has “no reason to believe” that any criminal violations by anyone other than Nassar took place. Last week, however, the university’s trustees sent Michigan Attorney General Bill Schuette a letter asking him to investigate the school’s handling of Nassar, and Schuette said in a statement that his office will conduct a “full and complete review” of the situation.

The ambiguous nature of the laws concerning child endangerment will make any potential prosecutions complicated. The Penn State administrators who were sentenced in in the Sandusky case were convicted under a broadly worded Pennsylvania statute titled “Endangering welfare of children”:

A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Former Penn State president Graham Spanier is appealing his conviction, arguing (among other things) that he could not have been reasonably expected, as a university president, to have a “duty of care” over the abuse victim, a minor who had been brought on campus by Sandusky in the coach’s capacity as a youth charity volunteer.

Michigan’s child abuse statute, meanwhile, is even more ambiguous on what constitutes a criminal failure to report potential abuse. Jordan Harris, who has practiced education and labor law in Michigan and now manages legal issues for a large Detroit-area school district, suggested to me that this section might be the most relevant:

(7) A person is guilty of child abuse in the fourth degree if any of the following apply:

(a) The person’s omission or reckless act causes physical harm to a child.

(b) The person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.

Even here, however, “omission” is specifically defined as “a willful failure to provide food, clothing, or shelter.” Harris says prosecution under the statute would be a “stretch,” but notes that there is also a Michigan statute called the Child Protection Law that specifically lists categories of people, among them “teachers” and “school administrators,” who are legally obligated to tell state authorities about the potential abuse of minors. Yet that law, too, is ambiguous. Harris pointed me to Michigan State’s own guidelines on the Child Protection Law, which state (correctly, Harris told me) that “Michigan courts have not yet addressed the status of university faculty, academic advisors, and administrators as mandated reporters.” (One more fact worth noting: Not all of Nassar’s victims were minors.)

Title IX, meanwhile, is its own mess. The role of Title IX offices in combatting sexual assault has developed relatively recently and been the subject of a great deal of confusion and controversy. While the Title IX gender-equity law itself was passed in 1972, a federal guideline asserting that “the requirements of Title IX pertaining to sexual harassment also cover sexual violence” was only issued in 2011—and then substantially revised by the Trump administration in 2017. Michigan State’s current policy mandates that coaches and trainers report allegations of sexual misconduct to the school’s Title IX office. But no matter what an investigation of Michigan State officials’ behavior were to uncover, Title IX does not authorize criminal penalties. If authorities eventually conclude that MSU violated Title IX, however, the school could potentially lose some federal funding.

Finally, there’s the NCAA, which announced Tuesday that it would investigate Michigan State’s handling of Nassar. But the NCAA is a private organization whose punishment of the university would only extend to its participation in college athletics, and even its jurisdiction over those matters has been on shaky ground in recent years as it’s faced heavy criticism for its inept and inconsistent handling of a number of scandals—including, most prominently, the one at Penn State.

At the moment, it seems like the most likely avenue for significant punishment against Michigan State officials and staffers who failed to report Nassar allegations would be a Child Protection Law prosecution. As Harris cautions, though, that wouldn’t be a sure thing even if the failures alleged in the Detroit News article could be proven in court. “This could be an issue where this is the test case, ” he says. “There would be litigation over whether [the law] applied to community colleges and universities. It would be a novel legal question—they could make that allegation, and then it would be up to the court to decide.”

Update, 1:40 p.m.: While he wasn’t the recipient of a direct report about Nassar, this piece also should’ve mentioned William Strampel, the former dean of the Michigan State College of Osteopathic Medicine. As Nassar’s boss, Strampel told him after he was cleared by the university’s 2014 Title IX investigation that he would be required to have an observer present whenever he performed “sensitive” procedures on patients. Multiple accounts, however, indicate that Strampel did not follow up to make sure this new rule was followed and that Nassar continued to see—and molest—some patients without an observer.

Strampel, Kovan, and Klages, meanwhile, are among those named as defendants in nine civil lawsuits filed by Nassar victims which are being handled collectively as a single case in federal court . The suits also name Michigan State itself as a defendant; the school has moved to have the cases dismissed.