Sexual behaviors in young children can range from exploratory and normal to abusive and violent. Under federal law, Title IX of the Education Amendments of 1972, schools have an obligation to protect children from inappropriate sexual behavior, including child-on-child sexual abuse. This obligation can be complicated when the allegation involves five- and six-year-old children, for whom touching body parts and viewing private areas may be considered normal sexual behavior. The issue faced by school administrators and attorneys who litigate claims of child-on-child sexual abuse involving young children is whether touching falls under normative or problematic child sexual behavior.

School districts have a responsibility to provide child-abuse detection and prevention training to administrators, teachers, and other staff. Clear school policies and procedures for staff to follow are imperative for recognizing whether behaviors between young students are normal or considered sexual abuse. Immediate and effective school follow-up and response to any complaints, knowledge, or observations of sexual interactions between young children is a way for school professionals and educators to meet their Title IX and mandatory-reporting obligations and allows for the provision of appropriate instruction of students who are exploring their sexuality.

Abnormal and Problematic Sexual Behaviors Among Young Children

Within the fields of early education and child development, it is commonly accepted that certain sexual behaviors among young children are normal. Young children are curious about what other bodies look like and want to know why girls’ and boys’ bodies are different. Behavior among young children becomes problematic when a child displays knowledge of sexual behavior beyond his or her age and developmental level, when there is a pattern of sexual behavior that does not change after correction by adults, and when sexual behavior interferes with the child’s own work or disturbs other students. Problematic sexual behavior may be a result of what a student has experienced or witnessed. Some children who have been sexually abused by an older child or adult may engage in aggressive and bullying behavior in a sexual context.

School personnel who become aware of inappropriate behavior need to respond immediately and work with therapists and other professionals to protect children in their care. The first step is to follow up on every incident and determine whether the behavior is normal — or an indicator of a more serious problem warranting mandatory reporting and requiring a Title IX investigation and remedial action.

According to the American Academy of Pediatrics (AAP), more than 50% of children will engage in some type of sexual behavior before their 13th birthday, and all children involved in such activity need assistance and guidance from parents, schools, and healthcare professionals. The AAP distinguishes between normal and abnormal sexual behaviors, as follows:

Normal and common behaviors include:

• Touching their own genitals and masturbating
• Viewing or touching a peer or new sibling
• Showing genitals to peers, standing or sitting too close to other children, and trying to view peer or adult nudity
• Behaviors that are infrequent, distractible, and not excessive

Abnormal behaviors include:

• Any type of sexual behaviors that involve children aged four or more years apart
• Asking other children and adults to engage in sexual acts
• Inserting objects into genitals, imitating intercourse, or touching animal genitals
• A variety of sexual behaviors displayed on a daily basis and that are disruptive to others
• Sexual behaviors that result in emotional or physical pain
• Sexual behaviors associated with other physically aggressive behaviors
• Sexual behaviors that involved coercion
• Sexual behaviors that are persistent and resistant to distraction of the child

Appropriate Responses to Allegations of Peer-on-Peer Sexual Behaviors and Touching

The U.S. Department of Education Office of Civil Rights (OCR) publishes guidelines for the practical application of Title IX requirements in educational settings. These guidelines include information for school districts about the need for appropriate grievance procedures, policies, staff training, and a Title IX coordinator, as well as state and local requirements for mandatory reporting. OCR recognizes that not all behavior with sexual connotations constitutes sexual harassment. According to OCR guidance, a kindergarten student kissing another student on the cheek would not rise to the level of sexual abuse and/or harassment. However, abnormal sexual acts, such as digital penetration, would be considered peer-on-peer sexual abuse and/or harassment.

OCR’s 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties clearly indicates that schools should consider common sense in their response to allegations of sexual harassment. In determining whether an act of alleged harassment is actionable, schools should consider the circumstances, expectations, and relationships. In a 2017 Question & Answer document regarding sexual misconduct, OCR indicated that a school must take action when it knows or reasonably should have known of an incident of sexual misconduct. Appropriate responses to an allegation of inappropriate peer-on-peer touching include:

• Immediately investigate the allegation. Liability issues arise when school personnel knew or should have known of inappropriate sexual behavior but were indifferent to that information. Parents of the students involved should be contacted and informed of the incident and about the school’s response. Closer supervision of the students, such as not allowing children to use the bathroom at the same time during class, lunch, and recess, should occur to prevent future incidents.

• If the initial investigation reveals that the behavior was abnormal, hurtful, violent, or abusive, the school should notify the appropriate authorities (in states, often called Child Protective Services or the Department of Social Services, or in some parts of Canada, Children’s Aid Societies). State or provincial authorities may or may not investigate based on the initial information provided to them. If conducted, an investigation will also determine whether the activity is indicative of a child’s home environment being abusive and take action to address it. It is good practice to document the contact with the police and/or state or provincial agency.

• The school’s Title IX coordinator should be notified and the school should initiate a formal Title IX investigation. The Title IX investigator should consider the age of the students and the severity of the alleged inappropriate event. For an incident found to not rise to the level of sexual harassment and/or abuse, the investigator should recommend remedial action, including additional training to students on appropriate and inappropriate touching and sexual behaviors. School districts are required to conduct and conclude their own investigation, regardless of whether police or state or provincial authorities conduct a separate investigation.

• Implement a plan to address the educational, social, and behavioral needs of all students or remedial action, such as counseling, age-appropriate punitive consequences, a behavior-modification plan, increased supervision, separation of the children involved, or in extreme cases, an alternative placement to provide services not available in the local school.

• Assess the school’s overall climate and the need for additional training of staff and students to prevent future incidents.

• Ensure that, at all times, all students are appropriately supervised according to their needs and developmental stages.

Schools have a higher standard of care for students with disabilities. Students with disabilities may have difficulty identifying sexual abuse or reporting instances of inappropriate touching. Some may not realize how their own behaviors affect others. As determined by their Individualized Education Plan (IEP), these children may need extra supervision, such as a one-to-one aide. Extra or precautionary supervision may be needed to ensure that a student is not placed in a situation or area, such as in a secluded area, bathroom, or back of a school bus, in which another child may take advantage of the student’s vulnerability.

Students with disabilities may require extra assistance by trained psychologists or similar professionals in helping them identify what occurred and with whom. Those with speech and language impairments may require assistance with describing an incident through drawings and pictures. Students with disabilities who have been sexually abused may require specialized training to teach them what is appropriate and not appropriate touching.