January 4, 2012

Preventing Child Abuse on Campus

What Schools and Colleges Need to Know
Holland & Knight Alert
Paul G. Lannon

In the wake of recent child abuse allegations at several colleges and universities, there is a renewed focus on protecting minors on campus. Our moral duty to protect children from abuse is self-evident and straightforward, but the legal responsibilities and consequences are often less clear. Accordingly, in this alert we provide a brief overview of applicable laws and identify 10 key measures for preventing child abuse on campus and for responding effectively when it does.

Mandated Reporting

It is critically important for educational institutions to recognize that under most state laws they are considered mandated reporters, which means that if they become aware of child abuse or neglect, they have a legal obligation to make a prompt report to the applicable family welfare or social services agency. In Massachusetts, for example, mandated reporters include public and private school teachers, educational administrators, preschool and after-school program staff, childcare providers and guidance or family counselors, among many others. These mandated reporters are required by statute to file a report of suspected abuse or neglect with the Massachusetts Department of Children and Families. Failure to report can result in fines and even jail time. Institutions outside of Massachusetts should consult their local laws to determine their own reporting requirements.

Criminal and Civil Liability

The risk of criminal liability is substantial. Even those who did not perpetrate an act of child abuse may be held liable for crimes, including aiding and abetting, accessory before or after the fact, and conspiracy, among others. Some states, including Massachusetts, have also passed legislation criminalizing the reckless endangerment of minors. These new laws impose criminal penalties on individuals who fail to safeguard minors when under a legal duty to do so.

Even when no criminal charges are pursued, institutions and individuals may be subject to civil liability under state and federal laws. Monetary damages and injunctive relief can be imposed under the federal statute known as Title IX if institutions accepting federal student aid become aware of the sexual abuse of a minor student but respond with “deliberate indifference.” Depending on the circumstances, private parties may also sue under federal Civil Rights Act as well as various state law claims, including negligent hiring, retention or supervision.

Ten-Point Checklist.

  1. Background Checks. The first and most effective means of preventing child abuse is screening out potential abusers before they come to the campus. All employees and volunteers who will have more than sporadic contact with minors should be given thorough background checks, including criminal and sexual offender records. Note that there is, as yet, no federal database for this information. Consequently, institutions should find out what records are available in their states and ensure that background checks include a multi-state search, especially of those states where the applicant previously resided.
  2. Written Guidelines and Uniform Enforcement. Institutions should have written guidelines for employees and volunteers addressing their interactions with minors. The guidelines should be easy to find, follow and enforce. They should detail the specific practices that must be followed for identifying, reporting and investigating cases of suspected abuse, and they should reflect the latest guidance from healthcare and social service professionals. Consequences for violating these guidelines should be clearly stated and uniformly enforced.
  3. Two-Adults Rule. A helpful rule of thumb is to ensure that at least two unrelated adults are present with minors at any given time. Care should be taken to avoid or minimize situations in which individual minors are alone with a single adult or related adults.
  4. Open and Well-Illuminated Spaces. Programs involving minors on campus should be held, when possible, in areas that are easy to access and monitor. Abuse typically occurs in locations that are more private and out of sight. Consequently, the greater the visibility in a particular area, the lower the risk of abuse.
  5. Reporting. Employees and volunteers should have a clear understanding of when and how to report suspected cases of abuse. Internally, institutions should identify contact persons responsible for receiving and responding to complaints of abuse. To encourage reporting from those otherwise reluctant to come forward, establishing an anonymous hotline is highly recommended. Of particular concern in the Penn State matter was the delay in reporting the abuse complaints to the governing board. There should be a protocol in place for providing prompt notice to governing boards, or an appropriate committee thereof, of both abuse complaints and the institution’s response plan. With regard to external reports, the institution should identify the person responsible for making mandatory reporting submissions to the appropriate family welfare or social services. There should be a process for the immediate notification of local law enforcement for situations of abuse in progress, and institutions must not forget to promptly notify the parents or guardians of the minors involved.
  6. Interim Safety Measures. Policies should provide interim safety measures to protect minors from further abuse. Such measures typically include the immediate removal of the minors from any potentially threatening situation, removal and suspension of the alleged perpetrator pending further investigation, and the opportunity for prompt medical or other professional care for the possible victims and their families.
  7. Prompt and Thorough Investigation. After implementing interim safety measures, institutions should conduct prompt and thorough investigations of abuse reports. Specific timelines are recommended. Delays are rarely acceptable when it comes to the safety of minors; however, if law enforcement is involved, care should be taken to coordinate so that the institution’s response does not interfere with the law enforcement investigation.
  8. Audits and Assessments. Periodic auditing of child abuse prevention measures is a necessity. Institutions should designate internal or ideally external auditors to review their child abuse prevention processes and how well they are followed in particular departments or divisions. Requiring students to complete anonymous surveys regarding treatment by employees and volunteers is often a very helpful way of assessing the effectiveness of a child abuse prevention program.
  9. Education and Training. For any child abuse prevention policy to be effective, the people implementing the policy must have adequate education and training. Employees and volunteers, especially those interacting with minors on a regular basis, should receive at least annual training on how to identify situations of abuse or neglect, how to report those situations, and what actions to take to prevent or minimize further harm.
  10. Involve Legal Counsel. Given the potential for criminal and civil liability, it is imperative that institutions involve in-house or outside legal counsel at the early stages of any abuse investigation. Prompt legal advice from experts in this area can greatly increase the effectiveness of the institutions response as well as lowering the risk of potential legal liability.

Unfortunately, there is no magic formula for preventing child abuse on campus or anywhere. Nevertheless, following these affirmative steps will help reduce the risk and improve the institution’s ability to respond promptly and effectively.

Ten-Point Checklist

  1. Conduct Background Checks
  2. Establish Written Guidelines and Uniform Enforcement
  3. Implement Two-Adults Rule
  4. Use Open and Well-Illuminated Spaces
  5. Report, Internally and Externally
  6. Apply Interim Safety Measures
  7. Conduct Prompt and Thorough Investigation
  8. Perform Audits and Assessments
  9. Provide Education and Training
  10. Involve Legal Counsel

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