By William E. Hannum III

What can we learn from this? How can we try to prevent the next tragedy?

We want to find ways to reduce the risk of future sexual assaults. We want to have better policies, better education – for potential victims, for potential perpetrators, and for the bystanders (whether peers or adults) who might intervene and prevent the next sexual assault.

What Happened In Concord?

By way of background, the prosecution argued that the defendant (as an 18 year old senior at the School) had emailed the victim (a 15 year old freshman), to invite her to join him for a “senior salute.” He wrote to her, “I want to invite you to come with me, to climb these hidden steps,” to a place “locked since before we were born” (the mechanical room on campus, where a sexual assault occurred).

This was allegedly part of an annual, unofficial School ritual, called the “Senior Salute,” in which senior males tried to “slay” females in lower grades, and in which the male students competed to be “No. 1 in sexual scoring.”

The Verdict

The jury found the defendant not guilty of three counts of aggravated felonious sexual assault, each of which carried a penalty of 10-20 years in prison.

The defendant was also acquitted of a simple assault charge (allegedly biting the girl’s chest).

However, the jury found that the defendant was guilty of three counts of misdemeanor sexual assault. These counts are premised in part on the fact that the victim was under the age of 16, and thus legally could not consent to the sexual encounter. Each count carries a prison term of up to one year, and sex offender registration for up to 10 years.

The jury also found the defendant guilty of endangering the welfare of a child, by soliciting the victim (under the age of 16) to engage in sexual penetration.

Finally, the jury found the defendant guilty of unlawfully using a computer to solicit a child, which is a Class B felony punishable by up to 7 years in prison and carrying lifetime sex offender registration. Thus, unless this conviction is overturned on appeal, this young man will be a registered sex offender for his lifetime.

Policies & Education:

• Yes Means Yes. Everything Else Means No.
• If You See Something, Say Something

What can independent schools do to reduce the risk of something like this occurring on their campus?

1.  Review & Improve Policies & Procedures. School administrators should carefully review and improve (if possible) policies and procedures related to issues of sexual assault, to make sure that the school follows best practices. Sometimes this will be tailored to the school’s culture, and sometimes it may be the culture itself that needs a second look. This policy audit should also include a thorough examination of all student sexual conduct policies (such as parietals), including policies that address consent, sexual assault and sexual harassment, bullying and hazing prevention and intervention plans, prohibitions against cyber-bullying and sexting, acceptable use of technology and discipline policies, and policies related to mandated reporting.

2.  Review & Evaluate School Traditions. School administrators should carefully review the school’s culture, traditions and other practices in light of the Concord case, and abolish or amend these traditions or practices to ensure that students are kept reasonably safe.

3.  Review & Improve Employment Policies. Schools should also conduct a careful review of employment policies, such as mandated reporter policies and training, the hiring procedures for all employees, as well as policies governing everything from the athletic department, to dormitory life, school trips, and any other circumstances in which students might foreseeably engage in unlawful or dangerous behavior.

4.  Enhanced Education For Students. In recent years, more independent schools are providing “Boundary Training” for students, to educate them about acceptable behavior. Such training should continue, but more robust boundary training is needed to educate students about the state laws governing consent and sexual assault, in addition to education about which behaviors are generally acceptable and unacceptable.  Multiple sessions in small groups, where students are given opportunities to engage with educators on this sensitive topic, are likely to provide a safe space for students to ask questions and absorb the information.  It is particularly important that the topic of consent be addressed, including the fact that it seems that the definition of consent is evolving, most recently to affirmative consent: Yes means yes. (And just to be clear: Everything else means no.)

This enhanced education for independent school students might well be viewed as a kind of precursor to the training that colleges and universities are in essence required to do. Institutions of higher education provide sexual assault prevention training for their students, pursuant Title IX. Clearly, independent school students could benefit from an age-appropriate version of such training, not only in their high school years, but also in preparing them for college.  Some people think that an age-appropriate version of this enhanced boundary training should start as soon as fourth grade.

5.  Enhanced Education For Faculty And Staff. Likewise, independent schools should continue and expand on the trend of providing “Boundary Training” for faculty and staff. More of this broad-based boundary training is needed, particularly to educate all school employees about each school’s potential liability when students engage in conduct on campus or sanctioned school events that violates state criminal laws. While many school employees seem reluctant to embrace the quasi police-like role inherent in such training, it seems too important to ignore in light of recent events in Concord.

In addition, this enhanced boundary training for school employees should also strongly reinforce the idea that if you see something, say something. We do not want more stories of coaches or janitors who did not get the training needed to know what to do when they saw an old man taking a shower alone with a young boy. Educate all employees. Empower all employees to do something.

Thus, for example, if you see an 18-year old senior going off into the dark, late at night, with a 15 year old freshman, say something, do something.

6.  Educate Parents And Board Members. Some version of boundary training should also be provided to parents and Board members, to make sure the entire school community understands what behavior is unacceptable. The potential for student sexual misconduct is not only a problem on boarding school campuses, and schools need to assist parents of day students in establishing appropriate guidelines when hosting social events in private homes or venues, off campus.  And to be sure that the students know that everyone knows the rules, and that it is safe to talk to anyone about unacceptable behavior.

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Let your school’s words and actions say clearly to everyone in the community that student safety is paramount, and that each member of the community is strongly encouraged to do his or her part to make it safe for everyone.

Yes means yes. Everything else means no.

If you see something, say something.

By Sara Goldsmith Schwartz

Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.

By Sara Goldsmith Schwartz

You may have observed the recent increase in news coverage of sexting incidents involving teenagers.  For example, a 16-year-old California high school student was recently arrested on a felony charge of distributing child pornography after he posted nude photos of teenage girls via Twitter. Two of the girls (who had sent the boy naked photos) were also cited for misdemeanor distribution of obscene matter, because their actions are considered a crime under California law.  In Vermont, an 18-year-old boarding student was recently charged with a misdemeanor for possession of child pornography after investigators found nude images of a 14-year-old girl on his cell phone (again, the girl had sent the boy these photos).

These examples, and other like incidents, are a sobering reminder that although sexting may be a spur of the moment action by a teenager with no criminal intent, sexting can quickly spin completely out of the teenager’s control, and is more often being construed as a criminal act under the law.  All 50 states have laws prohibiting the production, possession and distribution of images depicting sexually explicit activities involving a minor.  Since 2009, at least 20 states have enacted laws to specifically address youth sexting (i.e., Arizona, Colorado, Connecticut, Florida, Hawaii, Illinois, Louisiana, Missouri, Nebraska, New York, New Jersey, Nevada, North Dakota, Oregon, Rhode Island, Pennsylvania, South Dakota, Texas, Utah, Vermont).

Teenagers are generally unaware that sending nude or sexually explicit photographs of themselves or other minors may subject them to serious legal consequences, the impact of which could endure for many years.  For instance, prosecution for child pornography can lead to an individual being included on the national sex offender list.

In an effort to help prevent sexting, we recommend that independent schools take the following measures:

• Ensure that the school’s policies and practices clearly define sexting (including prohibiting such conduct by both the sender and the recipient of the explicit material), noting that it is not acceptable, and outlining the potential consequences for engaging in sexting (including potential criminal charges);
• Ensure that the school’s policies and procedures adequately address sexting involving students, employees, volunteers and all other individuals associated with the school;
• Evaluate the school’s protocols on related topics, such as any electronic communications policy, acceptable use policy, and policies on sexual abuse, sexual harassment, bullying, harassment, retaliation and intimidation; and
• Educate students, parents, employees and volunteers regarding the school’s policies and procedures pertaining to electronic communications, including sexting and the serious consequences that may result from it.

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Please do not hesitate to contact us if you have any questions regarding policies and procedures that may help your school prevent and effectively respond to incidents of sexting.  The Firm offers sexting prevention programs tailored to students, parents and school employees.