By Sara Goldsmith Schwartz

Picture this: during an Upper School Assembly at Springtime Academy, a recent alumnus of the school gives a talk and video presentation about his recent adventure on Mount Kilimanjaro. He remains on campus for the day, attending classes and bonding with students. During a conversation after lunch, a couple of tenth graders reveal to the climber that some of their classmates recently engaged in sexual misconduct. The speaker tells the school administration about what he heard, but does not report the misconduct to the state child welfare authorities. Should he have?

Guess what the lawyers say? “It depends.” It depends on how your state law defines “mandated reporters,” or those who, by virtue of their profession, are considered to have a heightened responsibility to report good faith suspicion that a child has been abused, sexually abused or neglected. Typically, such reports must be made to state child welfare agencies within 24-48 hours of the individual learning of the suspected misconduct.

In most states, those employed by schools (administrators, coaches, teachers), doctors, social workers and other licensed counselors are considered to be mandated reporters; but by virtue of someone speaking at a school, the mantle of “mandated reporter” does not automatically apply. In other states, anyone—regardless of profession or school affiliation—is obligated to report suspected child abuse, sexual abuse and neglect. In those states, the speaker could have an obligation to report the misconduct—his telling school administrators what he heard may not be enough to satisfy that requirement. Some states require that school employees first report their good faith suspicions of child maltreatment directly to authorities before informing even their supervisor or head of school. Finally, most states penalize individuals who should have reported and do not, versus those who made a good faith report of child maltreatment, that later, turns out to be unsubstantiated.

The take away: the determination of who is legally obligated to report suspicions of child maltreatment is nuanced and highly dependent on knowing your school’s state law. Take the time to educate your entire employee population – boundary training and mandates reporter training will help the community be ready for whatever may arise on campus.

If you have any questions about legal compliance for reporting suspected child abuse, sexual abuse or neglect, please do not hesitate to contact a member of the Firm’s Education Practice Group.

By William E. Hannum III

The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

• Nearly 1 in 5 women (22 million) have been raped in their lifetime.
• Almost 1.6 million men have been raped in their lifetime.
• Nearly half of female survivors were raped before they were 18.
• 1 in 5 women was sexually assaulted while in college.
• Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
• Most victims know their perpetrator.
• 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

• Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
• Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
• In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
• Explore various ways to engage students, looking for whatever may generate their greatest involvement.
• Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
• Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
• Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
• Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
• Provide survivors with appropriate resources and remedies to continue their education.
• Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
• Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

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An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

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William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

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For a copy of the White House report, please click here.

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.