Revival of School Past Childhood Sexual Abuse Cases and Statute of Limitations
In the field of education administration and student supervision, the current professional standard of care related to prevention, detection, investigation, and remediation of child sexual abuse and harassment is the result of a cumulative progression of events and cultural changes over several decades. This includes standards for maintaining appropriate policies, procedures, and training, as well as a duty to prevent and appropriately respond to a foreseeable risk of harm by reporting to authorities and independently investigating and taking action. Today there are numerous research-based resources available to parents, educators, school administrators, and public safety officials on how to prevent and recognize signs of abuse and how to respond. However, this was not the case for incidents of past childhood sexual abuse.
From the 1960s through the 1990s, such resources did not exist, and it was not until 2005 that the National Sex Offender Public Registry was established (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, n.d.). Standards in place now for public and private educational institutions are very different from what was expected or required in the 1970s, 1980s, and as recently as the early 1990s regarding past childhood sexual abuse. It took several decades after the emergence of the first mandatory child abuse reporting laws in the 1960s for the general public and government officials to view sexual abuse, especially coercive sexual abuse by adult males in educational settings, as widespread and not isolated instances.
Several States Extended Statute of Limitations for Past Childhood Sexual Abuse Cases
In recent years, we have seen a significant movement at the state level either to extend or eliminate the statute of limitations for past childhood sexual abuse cases against youth organizations and schools through “revival laws.” According to CHILD USA, 27 U.S. states and territories have revived previously expired child sex abuse claims with a window and/or age-limit revival law since 2002 (CHILD USA, 2022). Moreover, other states, such as Pennsylvania, are currently considering legislation on the issue (CHILD USA, 2022). Furthermore, in the last five years alone, 20 of the 27 states and territories listed have passed or revised their revival laws. The reason for this increase in legislative activity is that research has shown that victims do not disclose abuse until several years later. At the time of a study of more than 1,000 survivors, the average age a survivor reported child sex abuse was 52 years (Sprӧber et al., 2014). The delay in reporting the abuse happens for several reasons: children often lack the knowledge to recognize sexual abuse; they lack the ability to articulate that they have been abused; they do not have a trusted adult to whom they can disclose their abuse; they do not have opportunities to disclose abuse; or they are not believed when they try to disclose. Other dynamics that contribute to delays include the “trauma that results from the abuse, power differentials between the child victim and adult perpetrator, and institutional power dynamics” (CHILD USA, 2020, p. 2).
Standards for Detecting and Reporting Past Childhood Sexual Abuse In Schools Have Evolved
Evolving standards are relevant when considering decades-old allegations of past childhood sexual abuse. As referenced in a previous blog post by our firm’s founder, Dr. Edward F. Dragan, titled Professional Standard of Care in Past Cases of Child Sexual Abuse in Public and Private Schools:
In the field of education administration and supervision, as in most professions, the standard of care changes over time. The standard regarding what constitutes sexual harassment and child sexual abuse has evolved over decades. At times, our firm is asked to review a case that took place a couple of decades ago or even longer. When addressing the question of whether a school or other child-related agency met the professional standard of care, we must determine what the accepted standard and practice was at that time of the alleged child sexual abuse or other harmful incident. (Dragan, 2017, para. 2)
Our analysis of these now-revived cases of past childhood sexual abuse indicate that the vast majority took place during a time period between the 1960s through 1990s, when society and schools as a whole were not trained to recognize, report, and address such conduct. Laws and policies regarding sexual assault, harassment, and sexual abuse were nonexistent or in their infantile stages. Today’s technology tools, such as cell phones and social media applications, were not readily available to record and report incidents, take photographs, or capture texts or emails. Furthermore, there was a lack of research and data regarding sexual abuse in general (Shakeshaft, 2004) — including information about grooming and pedophilia, which helped contribute to an absence of professional standards focused on detection and prevention of sexual abuse of students in school settings from the 1960s through the 1990s. This, combined with the lack of training for educators in this area; the lack of clarity, guidance, and funding from state and federal governments; and significant societal misconceptions and stigma that severely inhibited victims — especially male victims — from coming forward, was a mitigating factor that inhibited school districts and youth organizations from being in a position to recognize or address subtle and indirect indicators that have only recently become understood as potential (but not always definite) signs of abuse. Victor J. Ross, Jr. and John Marlowe, two distinguished school administrators at that time, addressed the effect of these factors in their 1985 book, The Forbidden Apple, Sex in the Schools. In describing the school sexual abuse cases they researched, the authors stated:
It has not been an easy assignment. First, there is no research or literature of any substance, no wealth of empirical data, on the problem of sex in the schools. Seeking out cases, obtaining interviews, soliciting opinions — all this has been somewhat akin to ghost-hunting. At first it appears to be an impossible mission because no one wants to admit they believe in ghosts or have encountered a poltergeist. (Ross & Marlowe, 1985)
Unfortunately, Ross and Marlowe’s findings were the norm at the time. From my own professional experience, which began in the early 1980s, and the lack of research and knowledge to inform professional standards in the 1960s and 1970s, it is clear that no consistent standards existed in the 1960s, 1970s, and early 1980s when society’s awareness of child sexual abuse and abuse of children in institutional settings was emerging and federal, state, and professional prevention, training, and response strategies were in their infancy. The development of standards for educators began to take root in the late 1970s and early 1980s when the political and public focus shifted from parental physical abuse and neglect of children to abuse outside of the family, as evidenced by early reporting laws delegating the duty of mandatory reporting to medical professionals. This shift acknowledged that sexual abuse, especially the type of sexual abuse that excluded incest and intrafamilial abuse, was a problem outside of the family and within educational and institutional settings. In turn, this eventually led to the evolution of mandatory-reporting laws and the development of standards for schools and other child-oriented institutions. However, it was not until the mid-1990s and early 2000s that standards developed into what we see today.
Prior to 1963, California was the only state where child abuse was explicitly criminalized (Brown & Gallagher, 2014). “By 1974, thirty-four states required nurses to report, twenty-four required teachers to report, twenty-five required social workers to report, and nine required police officers to report” (p. 6). Just four years after the Federal Child Abuse Prevention and Treatment Act (CAPTA) was passed in 1974, 48 states required nurses to report, 49 required teachers and school officials to report, and 40 required law enforcement officers to report (p. 6). Only then was there a concentrated effort by state and federal governments, private actors, and educators to develop standards that specifically focused on prevention, detection, investigation, and remediation of sexual abuse within an educational setting. The development of standards was also prompted by the evolution of Title IX (U.S. Department of Justice, 2012) in the early-to-mid 1990s, stemming from federal and Supreme Court cases that addressed sexual harassment in public schools. Title IX held schools accountable and clarified definitions of sexual harassment as discrimination, as well as expectations of public schools. Title IX standards became the blueprint in public schools for how to detect, prevent, investigate, and remediate sexual harassment and abuse in schools.
Forensic Education and Institutional Expert Witness Services for Past Childhood Sexual Abuse
Our firm has worked as education experts on numerous child sex abuse cases in states where revival laws have passed, extending or eliminating the statute of limitations for past childhood sexual abuse. We have been engaged by both plaintiff and defendant attorneys to provide consultation and expert witness services on child sexual abuse matters. Through our experience and research, we have developed a methodology and identified several key areas to assist with determining the viability of a child sexual abuse case. In many of the earlier cases, we have found that teachers and administrators have either passed away or are no longer capable of testifying. Through a combination of research and use of our expert experience and specialized knowledge, we focus on filling in the information gaps to help determine existing and relevant standards that were in effect at the time of the abuse. Based on these standards, we are able to determine whether schools or other child organizations reasonably protected children and students from sexual abuse by adults and peers and whether they knew or should have known that the abuse was taking place.
In many of the cases where we provided expert witness consultation and testimony, the abuse was not disclosed by the victim. Our assignment as forensic educational experts is to determine whether the school, through some other means and based on applicable training and policy standards of the time, should have detected and/or noticed that a child was being abused in an educational setting. As described previously, laws and regulations regarding sexual abuse were in the beginning evolutionary stages between the 1960s and 1990s; hence, policies were not in place or not substantive at the local level to recognize and address sexual abuse of students by teachers and any staff charged with the supervision of a child. Without established policies, there was not adequate training of staff, administrators, parents, and students on the warning signs for sexual abuse. If society during that time had been more aware of pedophiles, their grooming techniques, and the damage they could do, the outcome could have been much different. In addition, today’s parents are more informed and more likely to report issues when they suspect something, and students are more likely to have been trained and are more open to reporting incidents of abuse to trusted adults. In essence, if the acts of past childhood sexual abuse in public schools decades ago had occurred today, with the increased awareness and subsequent laws, regulations, and training, there would have been less risk that pedophiles would have been able to get away with the sexual abuse of children.
One example of an area that was not as apparent to legislators, departments of education, educators, and school boards between the 1960s and 1990s, was how to identify adult sexual misconduct in schools. According to the U.S. Department of Education (USDOE) Office of Safe and Healthy Students Readiness and Emergency Management for Schools Technical Assistance Center (REMS), adult sexual misconduct in school settings encompasses a broad set of behaviors that could include, but are not limited to, inappropriate verbal conduct and physical conduct (Readiness and Emergency Management for Schools Technical Assistance Center [REMS], 2017, p. 1). It is important to note that adult sexual misconduct manifests in many ways, and the range of behaviors that can be considered inappropriate versus illegal underlines the importance of clear policies and procedures. For example, according to the USDOE, in 2017, inappropriate physical conduct could include, but was not limited to, patting the buttocks and using corporal punishment (REMS, 2017, p. 6). In the 1970s and 1980s, however, corporal punishment was legal in public schools in most states and is still legal in 19 states today (Gershoff & Font, 2016). Therefore, identifying what we recognize today as signs of adult sexual misconduct was not part of district policies or educator training in the 1970s and would have gone unnoticed or dismissed. Therefore, when evaluating these revival cases today, which extend or eliminate the statute of limitations for past childhood sexual abuse, it is important to use the frame of reference of what laws, policies, and training were the required standard to prevent and respond to adult sexual misconduct in schools.
References
Brown, L.G., & Gallagher, K. (2014). Mandatory reporting of abuse: A historical perspective on the evolution of states’ current mandatory reporting laws with a review of the laws in the Commonwealth of Pennsylvania. Villanova Law Review Tolle Lege, 59(6), 37-80. https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=3262&context=vlr
CHILD USA. (2020, March). Delayed disclosure: A factsheet based on cutting-edge research on child sex abuse. https://childusa.org/wp-content/uploads/2020/04/Delayed-Disclosure-Factsheet-2020.pdf
CHILD USA. (2022, May 5). Revival laws for child sex abuse since 2002. https://childusa.org/wp-content/uploads/2020/05/WindowsRevival-Laws-for-CSA-Since-2002.pdf
Dragan, E.F. (2017, December 12). Professional standard of care in past cases of child sexual abuse in public and private schools. School Liability Expert Group. https://education-expert.com/2017/12/professional-standard-of-care-in-past-cases-of-child-sexual-abuse-in-public-and-private-schools/
Gershoff, E.T., & Font, S.A. (2016). Corporal punishment in U.S. public schools: Prevalence, disparities in use, and status in state and federal policy. Social Policy Report, 30(1), 1-26. https://files.eric.ed.gov/fulltext/ED569208.pdf
Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. (n.d.). Dru Sjodin national sex offender public website. U.S. Department of Justice. https://www.nsopw.gov/
Readiness and Emergency Management for Schools Technical Assistance Center. (2017, March). A training guide for administrators and educators on addressing adult sexual misconduct in the school setting. U.S. Department of Education, Office of Safe and Healthy Students. https://rems.ed.gov/docs/asmtrainingguide.pdf
Ross, V.J., & Marlowe, J. (1985). The forbidden apple: Sex in the schools. ETC Publications.
Shakeshaft, C. (2004). Educator sexual misconduct: A synthesis of existing literature. U.S. Department of Education, Office of the Under Secretary. https://www2.ed.gov/rschstat/research/pubs/misconductreview/report.pdf
Sprӧber, N., Schneider, T., Rassenhofer, M., Seitz, A., Libhardt, H., Kӧnig, L., & Fegert, J.M. (2014). Child sexual abuse in religiously affiliated and secular institutions: A retrospective descriptive analysis of data provided by victims in a government-sponsored reappraisal program in Germany. BMC Public Health, 14(282). https://doi.org/10.1186/1471-2458-14-282
U.S. Department of Justice. (2012, June 23). Equal access to education: Forty years of Title IX. https://www.justice.gov/sites/default/files/crt/legacy/2012/06/20/titleixreport.pdf
