Transcript The Ramifications of Failing to Report Child Sexual Abuse in the

THE LEGAL
RAMIFICATIONS OF
FAILING TO ACT
SCOTT T. SUMMERS, ESQ.
STAFF ATTORNEY
MISSOURI SCHOOL BOARDS’ ASSOCIATION
573-445-9920
[email protected]
WHY ARE WE
HERE?
IN THE NEWS
TEACHERS WITH
STUDENTS…
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SIKESTON, MO
 29 Y.O. MALE JR. HIGH TEACHER
 SENT 14 Y.O FEMALE STUDENT EXPLICIT
PHOTOS/TEXTS
 INAPPROPRIATE ELECTRONIC COMMUNICATIONS
 CHILD ENTICEMENT
 MISCONDUCT INVOLVING A MINOR
 WAS FOUND GUILTY – 100 YEARS IN PRISON
 STILL AWAITING SENTENCE
 WILL GIVE UP TEACHING CERTIFICATE
 REGISTER AS LIFETIME SEX OFFENDER
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GREENFIELD, MISSOURI
 23 YEAR OLD FEMALE TEACHER CHARGED WITH
STATUTORY RAPE
 SPENT NIGHT AT MOTEL WITH 16 Y.O. BOY WHO USED
TO BE HER STUDENT
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FARMINGTON, MO
 24 Y.O. FEMALE TEACHER
 DAUGHTER IN LAW OF SCHOOL BOARD PRESIDENT
 HAD ORAL SEX WITH 15 Y.O. STUDENT, SENT CODED
TEXT MESSAGES
 FORCED TO REGISTER AS SEX OFFENDER
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ST. LOUIS, MO
 46 Y.O. SPECIAL ED TEACHER PLED GUILTY TO 25
COUNTS OF STATUTORY SODOMY INVOLVING AT
LEAST 3 OF HER STUDENTS
 39 Y.O. TEACHER AT ALTERNATIVE SCHOOL TOOK 16
Y.O. HEARING IMPAIRED STUDENT TO HER HOME FOR
SEX – FELONY STATUTORY RAPE
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PENNSYLVANIA
 29 Y.O. MARRIED MATH TEACHER, CHRISTIAN SINGER
 SEXUAL RELATIONSHIP WITH 17 Y.O. STUDENT
 USED FACEBOOK TO COMMUNICATE
 MET IN A MINIVAN AT LOCAL TARGET STORE PARKING
LOT
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WASHINGTON STATE
 31 Y.O. TEACHER KIDNAPPED HER 10 Y.O. STUDENT
AND RAPED HIM AT A REST STOP
 SCHOOL NON-RENEWED HER CONTRACT AFTER THEY
RECEIVED COMPLAINTS SHE WAS SOCIALIZING
INAPPROPRIATELY WITH STUDENTS.
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NIANGUA, MO
 39 Y.O. KINDERGARTEN TEACHER HAD SEXUAL
CONTACT WITH 17 Y.O. STUDENT
 EXCHANGED PICTURES AND MESSAGES VIA CELL
PHONE
 STUDENT WAS A TUTOR IN HER CLASS FOR A+
PROGRAM
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COLORADO/GEORGIA
 29 Y.O. SOCIAL STUDIES TEACHER/PRINCIPAL’S WIFE
 SEX WITH 17 Y.O. ON CAMPING TRIP
 33 Y.O. SCHOOL COUNSELOR
 SEX WITH 16 Y.O. STUDENT
 WAS REPORTEDTO TEACHERS AND TO PROBATION
OFFICERS BUT NOTHING WAS DONE!! DID NOT TELL
SUPERINTENDENT.
 WHY? SHE WAS SUP’S DAUGHTER!!
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NEW JERSEY
 3 male high school teachers
 Engaging in sexual relationships with female students
 PRINCIPAL AND ASST. PRINCIPAL WERE ARRESTED
FOR FAILURE TO REPORT
 Had mandatory reporting statute
 Admitted to trying to protect teachers
 Found there was a “climate” in the school that promoted
illicit relationships between teachers and students
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CALIFORNIA
 2 MALE TEACHERS – DIFFERENT SCHOOLS
 ARRESTED FOR MULTIPLE COUNTS OF SEXUAL
ABUSE OF ELEMENTARY STUDENTS (LITTLE ONES)
 Pictures, fondling, etc.
 PARENTS ARE ALLEGING THAT THEY NOTIFIED
ADMINISTRATORS ON NUMEROUS OCCASIONS ABOUT
THE TEACHERS’ BEHAVIOR BUT NOTHING WAS DONE
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COMMON THEMES
 TEXT MESSAGES, TEXT MESSAGES, TEXT MESSAGES
 ONE CASE OVER 400 IN ONE HOUR
 TEACHERS BEFRIENDING STUDENTS – BEYOND
NORMAL SCOPE
 EMAILING PHOTOS
 INSTANT MESSAGING
 TUTORING – AFTER SCHOOL ACCESS
 SPECIAL NEEDS STUDENTS
 AGE DOESN’T MATTER, NOR DOES GENDER
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PENN STATE SCANDAL
 FOOTBALL COACH – JERRY SANDUSKY SEXUALLY
ABUSED CHILDREN ON PENN STATE CAMPUS AND
ELSEWHERE
 CREATED A “CHARITY” TO HELP DISADVANTAGED
KIDS
 HEAD COACH (JOE PATERNO), HIS BOSS, HIS BOSS’S
BOSS, JANITORS, OTHER COACHES ALL KNEW BUT
DID NOT REPORT
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PENN STATE, CONT.
 FREEH REPORT
 STAFF MEMBERS AND COACHES REGULARLY OBSERVED
SANDUSKY SHOWERING WITH YOUNG BOYS
 NONE NOTIFIED SUPERVISORS
 UNIVERSITY LEADERS KNEW ABOUT ONGOING
INVESTIGATION REGARDING SANDUSKY
 TOOK NO ACTION AND CONTINUED TO ALLOW SANDUSKY TO
HAVE ACCESS TO CHILDREN
 NO ADMINISTRATOR EVER TALKED WITH SANDUSKY
 FAILED TO REPORT IT TO BOARD OF TRUSTEES
 KEPT IT “IN HOUSE” – CRYPTIC EMAILS, ETC.
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FINDINGS
 “TOTAL AND CONSISTENT DISREGARD BY THE MOST
SENIOR LEADERS AT PENN STATE FOR THE SAFETY
AND WELL BEING OF CHILD VICTIMS”
 “COACHES AND ADMINISTRATORS IGNORED RED
FLAGS”
 “CONCEALED FACTS”
 “JANITORS OBSERVED ABUSE BUT DID NOT REPORT
FOR FEAR OF GETTING TERMINATED”
 PATERENO DELAYED REPORTING B/C HE “DIDN’T
WANT TO RUIN ADMINISTRATOR’S WEEKEND”
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SEXUAL CONTACT WITH A
STUDENT - § 566.086
 Has sexual contact with a student of the public school
and is




A teacher as defined by statute
A student teacher
An employee of the school
A volunteer of the school or of an organization working with
the school on a project or program who is not a student at
the public school
 An elected or appointed official of the public school district
 A person employed by an entity that contracts with the
public school district to provide services
 CLASS D FELONY
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ENTICEMENT OF A CHILD
§ 566.151
 At least 21 years of age or older
 Persuades, solicits, entices or lures
 By words, actions, through communications via the
internet or any electronic communication
 Any person less than 14 y.o.
 For the purposes of engaging in sexual conduct
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OTHER LAWS
STATUTORY RAPE
 < 14 (1ST); 21-<17 (2ND)
SEXUAL MISCONDUCT
SEXUAL MISCONDUCT INVOLVING A
CHILD
SEXUAL ASSAULT
CHILD MOLESTATION
 <14 (1ST); <17 (2ND)
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MISSOURI HUMAN RIGHTS ACT
 DOE V. KANSAS CITY MO. SCHOOL DISTRICT(2012)
 ELEMENTARY STUDENT WAS SEXUALLY HARRASSED BY
ANOTHER STUDENT
 SCHOOL DISTRICT “KNEW” ABOUT THE HARRASSMENT
AND FAILED TO TAKE STEPS TO PREVENT/ SUPERVISE/
REPORT
 USUALLY BRING THIS TYPE OF ACTION UNDER FEDERAL
LAW
 HERE BROUGHT SUIT UNDER THE MHRA
 WHY???
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MHRA CONT.
 EASIER TO BRING SUIT
 GET A JURY TRIAL
 AND…MONEY DAMAGES!!
 IMPORTANT CASE
 OPENS DISTRICTS UP TO GREAT LIABILITY
 MHRA WAS NOT INTENDED TO APPLY TO PUBLIC SCHOOL
DISTRICTS
 NOW THERE IS A NEW STANDARD – KNEW OR SHOULD
HAVE KNOWN!!
 VERSUS “ACTUAL KNOWLEDGE” – FEDERAL LAW…
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TEACHER CONSEQUENCES
TERMINATION
REVOCATION OF
CERTIFICATE
REGISTRATION?
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TERMINATION
TWO TYPES OF TEACHERS
PROBATIONARY
EASIER TO TERMINATE
TENURED
CAN TERMINATE FOR VIOLATION OF
BOARD POLICIES
GOVERNED BY THE TEACHER
TENURE ACT
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TEACHER TENURE ACT
Section 168.114
(1) Physical or mental condition unfitting him to instruct or
associate with children;
(2) Immoral conduct;
(3) Incompetency, inefficiency or insubordination in line of
duty;
(4) Willful or persistent violation of, or failure to obey, the
school laws of the state or the published regulations of the
board of education of the school district employing him;
(5) Excessive or unreasonable absence from performance of
duties; or
(6) Conviction of a felony or a crime involving moral
turpitude.
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TERMINATION
 WILLFUL OR PERSISTENT VIOLATION OF, OR FAILURE
TO OBEY, THE SCHOOL LAWS OF THE STATE OR THE
PUBLISHED REGULATIONS OF THE BOARD OF
EDUCATION OF THE SCHOOL DISTRICT EMPLOYING
HIM
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TERMINATION
IMMORAL CONDUCT
 MUST BE SOME NEXUS BETWEEN THE IMMORAL
CONDUCT SHOWN IN THE EVIDENCE AND THE FITNESS
TO TEACH
 IMMORAL CONDUCT?
 PROBATIONARY TEACHER HAD A 14 Y.O. STUDENT AT HIS
APARTMENT W/O PERMISSION OF STUDENT’S PARENTS,
TOLD THE INVESTIGATING OFFICERS WHO CAME TO APT.
LOOKING FOR THE STUDENT THAT SHE WASN’T THERE
WHEN IN FACT SHE WAS.
 TERMINATED FOR IMMORAL CONDUCT – “ANY MATERIAL
BREACH OR CAUSE STATED BY LAW FOR THE
TERMINATION OF A PERMANENT OR PROBATIONARY
TEACHER
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REVOCATION –
SECTION 168.071
 HOLDER HAS PLED GUILTY OR BEEN
FOUND GUILTY OF A FELONY OR CRIME
INVOLVING MORAL TURPITUDE
 EVIDENCE OF IMMORALITY OR NEGLECT
OF DUTY
 BASED UPON THE ANNULING OF A
WRITTEN CONTRACT WITH THE LOCAL
BOARD OF EDUCATION
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REVOCATION
 PUBLIC SCHOOL MAY FILE CHARGES
 IN WRITING, SPECIFY THE BASIS FOR THE CHARGES, BE
SIGNED BY SUPERINTENDENT OR BOARD PRESIDENT
 MAY ALSO PETITION THE OFFICE OF THE ATTORNEY
GENERAL TO FILE CHARGES ON BEHALF OF THE
DISTRICT
 DESE MAY ALSO FILE CHARGES
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REVOCATION
 REVOKE CERTIFICATE FOR
 DANGEROUS FELONY
 RAPE, STATUTORY RAPE (1ST&2ND), SEXUAL ASSAULT,
FORCIBLE SODOMY, STATUTORY SODOMY (1ST&2ND),
CHILD MOLESTATION (1ST&2ND), DEVIATE SEXUAL
ASSAULT, SEXUAL MISCONDUCT INVOLVING A CHILD,
SESUAL CONTACT WITH STUDENT WHILE ON SCHOOL
PROPERTY, SEXUAL MISCONDUCT(1ST, 2ND, 3RD), SEXUAL
ABUSE, ENTICEMENT AND ATTEMPTED ENTICEMENT OF A
CHILD
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A LITTLE STORY – WHAT
WOULD YOU DO?
 M was a 37 year-old sixth grade school teacher who
ended up having sex with one of her 12 year-old male
students, V. Ultimately she would be arrested and
convicted for various child abuse and molestation
crimes. Prior to the public becoming aware of the
molestation, V was the teacher’s pet over several years
of grade school. He once went on a family vacation to
Alaska with M’s family, had dinner at her house with her
husband and family on numerous occasions, babysat for
M’s children, and stayed overnight at her house. M also
had dinners at V’s house with his family and once stayed
the night at his house when the snow was too deep to
drive home. Before M’s arrest, the following situations
were seen by various school district individuals:
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What would you do cont.
 A custodian caught V and M in a teacher’s restroom alone one
evening with the lights out in the restroom. The custodian did not
tell anyone about this incident. No one had ever informed him that
he should report such an event.
 A teacher saw V driving M’s van in the school parking lot. While
she thought this was odd, she told no one.
 A second teacher heard that M and V took art classes together at
the local community college. She told no one.
 A few other teachers were aware that V stayed in M’s classroom as
late as 10 p.m., “working on art work.” They assumed nothing
was wrong and told no one.
 Other teachers thought M was unprofessional in her relationship
with children, acting like a child at times, skipping and playing with
them, and forming personal relationships with kids which seemed
to be of a social nature. They told no one.
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What would you do cont.
 Other teachers and the principal noticed that M and V would usually
spend their recess time together.
 A teacher thought it was odd the way M looked at V, like a teenage girl
looking at her boyfriend. He told no one.
 A teacher saw V pat M on her bottom without M disciplining him. He
told no one.
 M and V slow-danced at a school Valentine party, holding each other
closely in a way that caused children to comment so that other
teachers heard. They told no one.
 One morning at 2:00 a.m., police in a nearby town were at a local
marina doing a routine check when they found M and V in M’s van. It
appeared that they had made up a bed in the back of the van which
looked suspicious. The police called the boy’s mother who said it was
okay for him to be with his teacher. The police released the boy back
to his teacher and went on their way. The police did not tell the school
principal.
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What would you do cont.
 The school district director of security became aware of
the marina incident when a school security officer, who
was married to a police officer employed in the town
where the marina was, told the director vague details
about something happening with M and a student at 2:00
a.m. at the marina. No follow-up action was taken
though, because the police never informed the district
and V’s mother apparently approved of his being with
his teacher.
 The true nature of M’s relationship with V was
discovered when M became pregnant with V’s child. She
was then arrested, convicted, and sent to prison.
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PART II
FAILURE TO
ACT
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MANDATED REPORTER
SECTION 210.115
 MISSOURI’S MANDATED REPORTER STATUTE
 …WHEN ANY … TEACHER, PRINCIPAL, OR OTHER
SCHOOL OFFICIAL … OR OTHER PERSON WITH
RESPONSIBILITY FOR THE CARE OF CHILDREN HAS
REASONABLE CAUSE TO SUSPECT THAT A CHILD HAS
BEEN OR MAY BE SUBJECTED TO ABUSE OR NEGLECT OR
OBSERVES A CHILD BEING SUBJECTED TO
CIRCUMSTANCES WHICH WOULD REASONABLY RESULT
IN ABUSE OR NEGLECT, THAT PERSON SHALL
IMMEDIATELY REPORT OR CAUSE A REPORT TO BE MADE
TO THE DIVISION IN ACCORDANCE WITH THE PROVISIONS
OF SECTIONS 210.109-210.183
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CONT.
 ANY PERSON REQUIRED TO REPORT IN AN OFFICIAL
CAPACITY AS A STAFF MEMBER OF A … SCHOOL
FACILITY OR OTHER AGENCY, WHETHER PUBLIC OR
PRIVATE, THE PERSON IN CHARGE OR A DESIGNATED
AGENT SHALL BE NOTIFIED IMMEDIATELY. THE
PERSON IN CHARGE OR A DESIGNATED AGENT SHALL
THEN BECOME RESPONSIBLE FOR IMMEDIATELY
MAKING OR CAUSING A REPORT TO BE MADE TO THE
DIVISION. NOTHING SHALL BE MEANT TO PRECLUDE
ANY PERSON FROM REPORTING ABUSE OR NEGLECT
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IMMUNITY IN REPORTING
SECTION 210.135
 ANY PERSON COMPLYING WITH THE MANDATED
REPORTING STATUTE IN THE MAKING OF A REPORT …
SHALL HAVE IMMUNITY FROM LIABILITY, CIVIL OR
CRIMINAL, THAT OTHERWISE MIGHT RESULT BY
REASON OF SUCH ACTIONS
 PROVIDED – IF YOU MAKE A FALSE REPORT, ACT IN
BAD FAITH, OR WITH ILL INTENT – NO IMMUNITY
 ALSO RECEIVE IMMUNITY FOR PARTICIPATION IN ANY
JUDICIAL PROCEDING RESULTING FROM THE REPORT
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WHAT IF YOU DON’T REPORT?
SECTION 210.165
 VIOLATE PROVISIONS (FAIL TO REPORT) - CLASS A
MISDEMEANOR
 INTENTIONALLY FILE A FALSE REPORT OF CHILD
ABUSE OR NEGLECT - CLASS A MISDEMEANOR
 PREVIOUS CONVICTION OF MAKING A FALSE
REPORT AND YOU DO IT AGAIN – CLASS D FELONY
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TASK FORCE ON THE
PREVENTION OF SEXUAL
ABUSE OF CHILDREN
CREATED BY STATUTE IN 2011
CHARGED WITH STUDYING AND
IDENTIFYING STRATEGIES FOR
PREVENTING CHILD SEXUAL
ABUSE
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SOME OF THE
RECOMMENDATIONS
 ALL SCHOOLS AND YOUTH SERVING ORGANIZATIONS
SHOULD HAVE SPECIFIC CHILD SEXUAL ABUSE
PREVENTION STRATEGIES
 CREATE AND IMPLEMENT STANDARDIZED TRAINING
FOR ALL MANDATED REPORTERS
 MODIFY SECTIOIN 210.115 TO REQUIRE MANDATORY
REPORTERS TO DIRECTLY REPORT SUSPECTED
CHILD ABUSE AND NEGLECT TO CHILDREN’S DIVISION
 CLARIFY THE TERM “IMMEDIATELY” IN THE
MANDATORY REPORTING STATUTE AND SCHOOL
REPORTING STATUTE
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SECTION 162.069
STUDENT/STAFF
COMMUNICATIONS
 SHALL HAVE A POLICY CONCERNING EMPLOYEESTUDENT COMMUNICATIONS.
 INCLUDE THE USE OF ELECTRONIC MEDIA AND OTHER
MECHANISMS TO PREVENT IMPROPER COMMUNICATIONS
BETWEEN STAFF AND STUDENTS
 TRAINING ON IDENTIFYING SIGNS OF SEXUAL ABUSE
IN CHILDREN AND DANGER SIGNALS OF POTENTAILLY
ABUSIVE RELATIONSHIPS BETWEEN CHILDREN AND
ADULTS
 INCLUDE MANDATORY REPORTING
 ESTABLISH AN ATMOSPHERE OF TRUST
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SCHOOL POLICY
REPORTING
ARE REQUIRED BY STATUTE TO
HAVE A POLICY IN PLACE FOR
REPORTING SEXUAL ABUSE
MUST SELECT A PERSON TO
REPORT TO
NEED TO HAVE A SECONDARY
PERSON AS WELL
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SCHOOL POLICY –
COMMUNICATIONS
 ABSOLUTE PROHIBITIONS
 TOUCHING, FONDLING CARESSING
 DATING A STUDENT OR DISCUSSING ROMANTIC/SEXUAL
RELATIONSHIP WITH A STUDENT
 MAKING SEXUAL ADVANCES
 ILLEGAL HARRASSMENT OR DISCRIMINATION
 CRIMINAL BEHAVIOR
 EXCEPTIONS
 WANT TO PROMOTE HEALTHY COMMUNICATION AND
RELATIONSHIPS
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POLICY CONT.
EXCEPTIONS
 EMERGENCY SITUATIONS
 EDUCATIONAL PURPOSE
 RELATIONSHIPS OUTSIDE OF SCHOOL ENVIRONMENT
 SUGGESTIONS AND GUIDELINES FOR ELECTRONIC
COMMUNICATION




EDUCATIONAL V. NON-EDUCATIONAL PURPOSES
MONITORED (NO RIGHTS ASSOCIATED)
DISTRICT V. STAFF OWNED
TEXTING STUDENTS
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WHAT TO LOOK FOR
GROOMING BEHAVIOR
 Inappropriate “boundary invasions” include, but are not limited
to, invasions by the adult into the child’s personal space and
personal life such as the following:
 Taking an undue interest in a student (i.e., having a “special”
friend or a “special relationship” with a particular student).
 Giving gifts or money to the student for no legitimate educational
reason.
 Engaging in peer-like behavior with students (i.e., being cool by
being like one of the kids).
 Being overly “touchy” with students.
 Favoring certain students by giving them special privileges.
 Favoring certain students by inviting them to come to the
classroom at non-class times.
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GROOMING CONT.
 Getting the student out of class repeatedly to visit the teacher.
 Talking to the child about problems that would normally be
discussed with adults (e.g., marital problems).
 Telling the student “secrets” and having “secrets” with the
student
 Talking to the child about the child’s personal problems to the
extent that the adult becomes a confidant of the child when it is
not the adult’s job to do so.
 Allowing the child to get away with inappropriate behavior.
 Being alone with the student behind closed doors at school.
 Taking the student on outings, away from protective adults.
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GROOMING CONT.
 Giving students rides in the teacher’s personal vehicle without
administrative approval.
 Initiating or extending contact with students beyond the school
day for personal purposes.
 Using e-mail, text-messaging, or websites to discuss personal
topics or interests with students.
 Invading the child’s privacy (e.g., walking in on the child in the
bathroom, locker-room, asking about bra sizes, or previous
sexual experiences).
 Going to the student’s home for non-educational purposes.
 Taking the student on personal outings even with the parents’
permission.
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GROOMING CONT.
 Inviting students to the teacher’s home without proper
chaperones.
 Telling sexual jokes to students.
 Engaging in talk containing sexual innuendo or banter with
students.
 Talking about sexual topics that are not related to curriculum.
 Showing pornography to the student.
 Hugging, kissing, or other physical contact with a student.
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SOME FINAL THOUGHTS…
 TAKE EVERY INCIDENT SERIOUSLY AND INVESTIGATE
FULLY
 DO NOT IGNORE!!
 FOLLOW YOUR POLICY AND REPORT ACCORDINGLY
 FAILURE TO DO SO COULD EXPOSE YOU AND THE DISTRICT
TO LIABILITY – BOTH CRIMINAL AND CIVIL
 MONEY!!!
 WHEN IN DOUBT – REPORT
 UNLESS YOU DO IT MALICIOUSLY OR IN BAD FAITH YOU
CAN’T GO WRONG
 IT CAN HAPPEN IN YOUR TOWN, IN YOUR DISTRICT, IN
YOUR HOME – NO ONE IS IMMUNE
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QUESTIONS???
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THANK YOU!
***SLIDES WILL BE AVAILABLE ON THE MSBA WEBSITE –
WWW.MSBANET.ORG
SCOTT T. SUMMERS, ESQ.
STAFF ATTORNEY
MISSOURI SCHOOL BOARDS’ ASSOCIATION
2100 I-70 DRIVE SOUTHWEST
COLUMBIA, MO 65203
573-445-9920
[email protected]