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  • "I just signed your death warrant," Judge Rosemarie Aquilina told serial child abuser Larry Nassar on Wednesday, after sentencing him to 175 years in prison. Here's what to expect next from a legal standpoint—including the potential of charges against Michigan State and USA Gymnastics execs.
By Michael McCann
January 24, 2018

“I just signed your death warrant.”

Michigan Circuit Court Judge Rosemarie Aquilina couldn’t have been clearer in her sentencing of serial child molester Larry Nassar on Wednesday. Judge Aquilina sentenced the former USA Gymnastics and Michigan State University doctor to 175 years in prison. The sentencing reflects Nassar previously pleading guilty to seven counts of criminal sexual conduct.

Nassar will probably die long before his 175-year sentence actually begins. The 175-year sentence is set to run after the 54-year-old Nassar serves a 60-year federal prison sentence for child pornography. Not only would Nassar be extremely old after his federal sentence ends, but it’s well known that child molesters tend to face the worst treatment by fellow inmates.

Nassar, who currently faces a total of 235 years in prison, still faces other sentencing. He will soon be sentenced for three other counts of criminal sexual conduct in an Eaton County (Michigan) court. Separately, he is under investigation for committing sexual crimes in Texas. It’s not inconceivable that he could ultimately be sentenced to somewhere in the ballpark of 500 years in prison.

Nassar spending the rest of his life in prison provides a form of justice for his many victims. More than 150 women have accused Nassar of sexual assault. In reality, the number of his victims likely far exceeds the number of women who publicly accuse him. As Judge Aquilina stressed on Wednesday, sexual assaults are often not reported. This occurs for a variety of reasons, including that victims fear retribution if they accuse the perpetrator—especially if the perpetrator is a highly respected and trusted member of the community, such as an influential doctor.

It’s possible Nassar assaulted several hundred women in a setting where he held every single advantage: he was the doctor, his victims were young and were seeking relief for bad pain and Nassar’s assaults, which often involved Nassar digitally penetrating a young woman’s vagina and anus, could be explained away as “medical treatment.” Given that patients often aren’t aware of what constitutes “medical treatment” and given that patients tend to reflexively defer to doctors as all-knowing—especially those doctors endorsed by a sanctioning body like USA Gymnastics and a major state university like Michigan State—Nassar operated in a space that facilitated his worst urges.

“Facilitation” is a key word in the Nassar story. His ability to inflict harm was obviously enhanced by the failure of USA Gymnastics (which employed Nassar as national medical coordinator from 1996 to 2004) and Michigan State (which employed Nassar as a professor from 1997 to 2016) to stop him. The next stage of the Nassar scandal will involve whether those failures constituted unlawful or even criminal conduct.

As detailed in my SI article from last Friday, former gymnasts Rachael Denhollander and McKayla Maroney are leading federal and state lawsuits against USA Gymnastics and Michigan State. Their core legal argument concerns institutional liability for the criminal acts of an employee. Both USA Gymnastics and Michigan State, Denhollander and Maroney argue, either knew or should have known that Nassar was sexually assaulting them and many other young women. In turn, USA Gymnastics and Michigan State were obligated to take action against Nassar.

Employers have an obligation to supervise, monitor and if necessary sanction employees, particularly those who are in physical contact with young persons. Both USA Gymnastics and Michigan State allegedly ignored clear warning signs and recklessly dismissed gymnasts’ complaints as unwarranted worries fueled by mere ignorance and youth. Along those lines, some gymnasts were told they simply didn’t understand the practice of medicine and that they would be smart to trust Nassar. If Denhollander and Maroney prevail in their lawsuits or are able to extract settlements, USA Gymnastics and Michigan State—and their insurance companies—might have to pay tens of millions of dollars in damages to Nassar’s victims.

Current and former executives at USA Gymnastics and Michigan State ought to also be concerned about the possibility of criminal charges. While no official at either institution has been charged with a crime, the law often requires high-level persons in institutions—especially educational institutions—to report allegations of child abuse. In the Jerry Sandusky scandal, three former Penn State officials, including then Penn State President Graham Spanier, were eventually convicted of charges for failing to report. Investigations into Nassar will continue, and law enforcement in Michigan will certainly monitor whether evidence and testimony surface in the Denhollander and Maroney lawsuits that suggest USA Gymnastics and Michigan State officials may have committed crimes.

Less important, but nonetheless newsworthy, are the “sports” implications of the Nassar scandal. The NCAA sent a letter of inquiry to Michigan State informing the school that the NCAA will review whether NCAA rules were broken in how Michigan State monitored Nassar and responded to complaints against him. Assuming the NCAA finds fault, the NCAA would be within its authority to punish Michigan State. Article 2.1 of the NCAA constitution makes clear that “it is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program.” The NCAA relied on this and other language to severely sanction Penn State for its handling of the Sandusky scandal. If the NCAA sanctions Michigan State, possible sanctions would include a large monetary fine and reduction of athletic scholarships.

It is too early to know how the NCAA investigation into Michigan State will proceed, particularly in how it might compare to the Penn State investigation. Some facts, however, suggest the Nassar scandal could prove far “worse” than the Sandusky scandal. For one, many more victims have asserted claims against Nassar, meaning many more lives appear to have been damaged if not ruined by his monstrous acts. For another, while some of Sandusky’s crimes against children occurred after he had retired from Penn State in 1999 (but still had access to the Penn State campus), allegations against Nassar generally concern conduct that occurred between the window in which he was employed by both USA Gymnastics and Michigan State. There are two institutions, in other words, that had a duty to monitor this particular employee and both failed badly.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

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