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.

***

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

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

As independent schools, colleges and universities begin the academic year, looking forward to teaching, learning, and growth in the coming year, I want to remind everyone to “Be careful out there!”

In the wake of the Penn State-Sandusky story years ago, New York Times columnist David Brooks offered a sobering reminder that “[u]nfortunately, none of us can safely make that assumption [that we will do the right thing in a moment of crisis]. Over the course of history — during the Holocaust, the Rwandan genocide or the street beatings that happen in American neighborhoods — the same pattern has emerged. Many people do not intervene. Very often they see but they don’t see.”

For that reason alone, we strongly encourage schools to train themselves (students, faculty, and staff) on the kinds of behaviors that are expected at your school, and the kinds of behaviors that are unacceptable. For all educational institutions, this training is an excellent idea.

Now – early in the new academic year – is an ideal time for it. This past July, a New York Times article described the most dangerous stretch for new college students: “the Red Zone, a period of vulnerability for sexual assaults, beginning when freshmen first walk onto campus until Thanksgiving break.”

Of course, for colleges and universities, and other schools that receive federal funding, much of this sort of training is also legally required, under Title IX.

However, age-appropriate training for all students is increasingly recognized as a now-obvious “best practice.” A recent article in the Boston Globe extols the virtues of in-person training, even in middle school, to educate students earlier in their development and maturation: “we should be sending the message earlier — reaching boys in middle school, when the hormones kick in.”

Many SHPC attorneys have just returned from conducting these kinds of trainings for schools (e.g., boundary training for faculty and staff; and anti-bullying, cyber-bullying and appropriate use of social media training for middle school and high school students). These training programs are incredibly well-received by not only the schools, faculty, and staff – but also by the students – as these seminars provide a safe place to talk about challenging situations and sensitive topics.

 So, as you look forward to a fantastic year, remember to protect your students, and faculty and staff, as well. Not only during the Red Zone (between now and Thanksgiving), but also for the entire year.

Remind everyone what it means to be careful out there. That way, if something bad does happen, someone among your students, faculty and staff will really see it and know what to do about it.

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

***

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.

***

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.

***

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