Allen asserted Jennings “didn't seem to recognize” that “this was an assault, and that it should be reported”

From the October 1 edition of MSNBC's Morning Joe:

ALLEN: Back in June, I discovered, conservatives were focused on the fact that in a book that [Jennings] had written several years ago about openly gay and lesbian teachers, he'd written about an incident back when he was 24, in 1988. A sophomore came to him, confessed a relationship with a man that had started in a bus station and then continued elsewhere.

The problem with this is, Willie, he seemed to condone it. He said to the young man, “I hope you had the good sense to use a condom.” He didn't seem to recognize that given this young man's age, this was an assault, and that it should be reported.

Jennings' attorney stated in letter that student was 16, which is -- and was -- MA age of consent

Jennings' attorney: Conversation was “with a sixteen-year-old student”; “no factual basis” that Jennings was “aware of any sexual victimization of any student.” In an August 3, 2004, letter, Constance M. Boland of the law firm Nixon Peabody -- which represented the organization that Jennings ran -- wrote that the “conversation” Jennings had was with “a sixteen-year-old student” and that there “is no factual basis whatsoever for” the “claim that Mr. Jennings engaged in unethical practices, or that he was aware of any sexual victimization of any student, or that he declined to report any sexual victimization at any time.” [Boland letter, 8/3/04]

Jennings' book suggests student was 16 or 17 at the time of the incident. Jennings wrote that “during the spring of 1988,” a student Jennings referred to as “Brewster” told Jennings “a story about his involvement with an older man he had met in Boston.” Jennings wrote that he “listened, sympathized, and offered advice.” He later wrote that on April 3, 1993, he “caught up” with “Brewster” at “the annual awards dinner of the Coalition of Lesbian and Gay Civil Rights.” Jennings wrote that “Brewster” was then “twenty-two, taking time off from college, and living with his boyfriend.” If “Brewster” was 22 in April of 1993, then “Brewster” would have been either 16 or 17 in the “spring of 1988” when the incident allegedly occurred. From his book:

Toward the end of my first year, during the spring of 1988, Brewster appeared in my office in the tow of one of my advisees, a wonderful young woman to whom I had been “out” for a long time. “Brewster has something he needs to talk with you about,” she intoned ominously. Brewster squirmed at the prospect of telling, and we sat silently for a short while. On a hunch, I suddenly asked, “What's his name?” Brewster's eyes widened briefly, and then out spilled a story about his involvement with an older man he had met in Boston. I listened, sympathized, and offered advice. He left my office with a smile on his face that I would see every time I saw him on the campus for the next two years, until he graduated. [One Teacher in Ten, page 25]

[...]

I remember April 3, 1993, when I went to Club Café, a gay restaurant in Boston, for the annual awards dinner of the Coalition of Lesbian and Gay Civil Rights. An organization I had helped found, GLSTN (the Gay, Lesbian, and Straight Teachers Network), was being honored that night, and I had come to accept the award on our behalf. I sat with some friends, my back to the center of the room, and soon got engaged in conversation. From behind me, I heard a familiar voice. “Care for a drink, sir?”

I turned and it was Brewster. Shocked, we were both speechless for a moment, before we hugged each other and caught up. He was now twenty-two, taking time off from college, and living with his boyfriend. His smile showed that he had found his way to a happy adulthood. In that moment, I remembered why I had gone into teaching in the first place. [One Teacher in Ten, page 27]

Massachusetts age of consent is -- and was at the time -- 16. According to a footnote in the 1982 Massachusetts case Commonwealth v. Calvin D. Miller, chapter 265, section 23, of the General Laws of Massachusetts, as amended in 1974, at the time provided:

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age shall, for the first offense, be punished by imprisonment in the state prison for life or for any term of years, or, except as otherwise provided, for any term in a jail or house of correction, and for the second or subsequent offense by imprisonment in the state prison for life or for any term of years, but not less than five years. [emphasis added]

According to the legislative history available in the Lexis database, the provision was not amended after 1982 until 1998. It was amended again in 2008 and now provides:

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file. [emphasis added]

Allen flatly asserts that Jennings “should [have] reported” incident, ignoring actual law and attorney's argument

Massachusetts law required reporting by those with reason to believe child “is suffering serious physical or emotional injury resulting from abuse.” According to a footnote in a 1990 Massachusetts Supreme Judicial Court case, in 1988, chapter 119, section 51A, of the General Laws of Massachusetts provided:

[Any] public or private school teacher ... who, in his professional capacity shall have reasonable cause to believe that a child under the age of eighteen years is suffering serious physical or emotional injury resulting from abuse inflicted upon him including sexual abuse ... shall immediately report such condition to the department by oral communication and by making a written report within forty-eight hours after such oral communication ...

Jennings' attorney: Book passage does not indicate that Jennings had reason to believe student was being abused. In the letter, Boland stated, “Nowhere in the book does Mr. Jennings state that he understood the student was being abused of victimized, or that he suffered injury from any abuse.” Boland added, “Based on the plain meaning of the words in the book, it is clear that Mr. Jennings had no 'reasonable cause to believe' that the student was being abused in any way. Because there was no abuse and no 'sexual victimization,' the statute does not apply.” [Boland letter, 8/3/04]

Transcript

From the October 1 edition of MSNBC's Morning Joe:

WILLIE GEIST (co-host): We're gonna ask you to lay out a bubbling controversy for us regarding one of the Obama administration's czars. The Office of Safe and Drug Free Schools is headed by a man who has a little bit of a history. Tell us about it.

ALLEN: Well, he does. And, Willie, we've seen this movie before. Conservatives focus on a particular Obama appointee, dig up issues about him. It bubbles out there online, on the air, and then the administration issues a statement, and finally the mainstream media wakes up and covering it. And that's what's happening here with this safe schools czar, Kevin Jennings.

Back in June, I discovered, conservatives were focused on the fact that in a book that he had written several years ago about openly gay and lesbian teachers, he'd written about an incident back when he was 24, in 1988. A sophomore came to him, confessed a relationship with a man that had started in a bus station and then continued elsewhere.

The problem with this is, Willie, he seemed to condone it. He said to the young man, “I hope you had the good sense to use a condom.” He didn't seem to recognize that given this young man's age, this was an assault, and that it should be reported.