Title IX of the Education Amendments of 1972 is designed to protect students from harassment and sexual violence—including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion—in programs or activities that receive federal financial assistance. The law states that:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Despite what the law says, incidents of school sexual assault still occur. This article will discuss what you can do if your child has been victimized and how to explore your child’s legal options.
The Duty of Schools to Investigate Claims of Sexual Assault
When an institution knows or reasonably should know of possible sex-based harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred, according to Title IX. The same is true under California’s Child Abuse and Neglect Reporting Act (CANRA) which requires designated mandated reporters to report suspected or known abuse, neglect, or exploitation of a child under age 18. If an investigation reveals that the harassment created a hostile environment, the institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent the harassment from recurring, and, as appropriate, remedy its effects. Unfortunately, institutions don’t always follow these guidelines.
Most cases of school sexual assault are never reported by students due to fear and shame. And, if they are reported, they are often mishandled by the school districts. To combat this, the U.S. Department of Education’s Office for Civil Rights (OCR) publishes data from all school districts on reported sexual harassment incidents every two years. Often, many of these schools have “zero” reported incidents—which isn’t necessarily a good sign. With this in mind, the OCR also conducts proactive investigations, called compliance reviews, to examine potential violations based on sources of information other than complaints. As of January 31, 2020, there were 71 pending cases under investigation at elementary-secondary and post-secondary schools in California.
How to Handle Sexual Assault by a School Official
File a report with local law enforcement and request to press criminal charges.
When a teacher, coach, guidance counselor, or other authority figure is the sex offender in your child’s incident of sexual assault, you can press criminal charges, as sexual contact with an adult and a person under 18 years of age is against the law. Children can’t legally consent to sexual acts. Sexual misconduct by a teacher involving a student impedes the “duty of care” for teachers to provide education for their students, while also protecting them from harm while under their supervision.
A parent can file a formal report with local law enforcement and ask to press criminal charges. Then, the department will likely conduct a preliminary investigation. Corroborative evidence can take many forms, including medical exam documentation, witness testimony, and victim interviews. Ideally, you will work with expert investigators from CALICO (the Child Abuse, Listening, Interviewing, and Coordination center) or CIC (the Children’s Interview Center). These groups can also help you coordinate with a local, specially trained Sexual Assault Nurse Examiner to collect medical documentation if necessary as well.
Credible evidence can then be handed over to the state District Attorney for prosecution. If the State of California finds the defendant guilty, he or she can be sentenced to prison, probation, payment of a state fine, and put on the state Sex Offender Registry.
Call a civil attorney specializing in childhood sexual abuse.
In addition to pressing criminal charges, you may file a civil lawsuit that could potentially result in financial compensation to pay for your child’s related medical expenses, therapy sessions, and long-term wellbeing.
The expanded scope of liability in civil court is particularly important in cases of school sexual assault. Not only can you sue the individual perpetrator, but you can also sue the school district. Civil lawsuits can be an empowering path to subpoenaing documents, holding school districts liable, and enacting structural changes in the system. When a school is held liable in civil court and forced to pay, they will likely want to make sure they are smarter about who they hire, how they supervise, and what actions they take to prevent child abuse in the future. Judges also exercise a limited amount of leverage in adding structural reforms onto settlements. Lawsuits have been instrumental in helping stop the practice of “passing the trash,” where known sex offenders are allowed to move freely between schools.
California is very clear about the responsibility of school personnel in the prevention of child abuse. CANRA, also referred to as the mandatory reporter law, requires educators to report any instances of known or suspected child abuse to law enforcement for further investigation. Failure to do so can result in fines and even jail time. School districts and mandatory reporters can also be included in civil lawsuits when they fail to exercise proper vigilance to prevent sexual assaults by school personnel.
Handling the Sexual Assault of a College Student
Many college students are able to file their own lawsuits against sexual assault and they can take similar actions to those of a parent dealing with a victim who’s a minor. The only difference may be a particular college or university’s liability under Title IX.
Title IX requires schools to work with a Title IX coordinator to conduct a prompt investigation into any reports of sexual assault; provide survivors with the option to notify law enforcement; take prompt and appropriate policy steps to protect the victim and prevent future abuse; and take corrective action if the perpetrator was a member of the faculty or staff. Schools can be deemed negligent when it can be proven they knew or should have known that abuse was taking place on campus. Schools can also be held liable for incidents taking place off-campus in fraternities and sororities. A number of sexual assault-related laws have passed in recent years, providing college students with more rights and making it easier to pursue a civil claim in court.
What to Do About Child-on-Child Sexual Abuse
Sexual assault or abuse between minors is referred to as Child-On-Child Sexual Abuse (COCSA) and often occurs at school. Nearly one-third of child sex abuse predators are other minors. While it is normal for elementary-aged children to express some curiosity in sexual behaviors, figures of authority should intervene and reinforce age-appropriate conduct. As a child ages, sexual touching can be considered a serious crime. As mentioned earlier, children under age 18 can’t legally consent to sexual activity in the State of California. This holds true, not only for student-on-minor sexual incidents, but for student-on-student sexual encounters as well. Whether your teenager is in a sexual relationship with another student is inconsequential in the eyes of the law, although the penalties stiffen when the age gap is greater than two years.
Here’s what you can do if your child has been a victim of COCSA:
Support your child.
If your child was sexually assaulted by one of their peers, responding with love and support is most important, while setting clear expectations about what is or isn’t acceptable and safe behavior. Develop a family safety plan to ensure your child has proper surveillance and will not be in a situation where assault occurs again. Let the other parents know what has happened, sticking to the facts and letting them know you’re committed to helping stop the cycle of abuse. Both victim and perpetrator should seek mental health counseling. Most offices accept insurance, including Medicaid. If the school was a venue for abuse, speak with an administrator to ensure you have their commitment.
Pursue the matter in criminal or juvenile court.
California will not initiate criminal proceedings against children under 14 years of age. Teens ages 14-17 can be charged with a misdemeanor for “unlawful sexual intercourse,” “distributing child pornography” (sexting), or “lewd and lascivious acts with a child,” and subject to juvenile court treatment. Minors can be remanded to a juvenile facility, placed in foster care, placed on probation, ordered to serve home detention, or mandated to perform community service. Felony charges can be imposed for minors over the age of 14 who abuse younger children. If charged as an adult, fines can reach $10,000 and the perpetrator may be registered as a sex offender.
File a lawsuit against the minor’s custodial guardians in civil court.
Minors can be represented by their legal guardians in court. A civil lawsuit can force a perpetrator to admit guilt and have their guardians pay restitution to your child. It can be difficult to secure a substantial sum from the perpetrator’s family, but third party liability could be an avenue for reaching a larger settlement, depending on the circumstances of your case. For instance, if harassment or abuse took place at school or an after-school activity, teachers and administrators can be held liable for failing to supervise or failing to report.
Help for Victims of School Sexual Assault
Parents entrust school officials with the safety of their children. When this trust is violated, the ramifications can have devastating effects for the abused that last a lifetime.
No individual or institution is too big to sue in court. Filing a civil suit is not just about the money. It’s a necessary step in holding third parties accountable for turning a blind eye to safety hazards in their midst. It’s about forcing a change in school policies to prevent sexual misconduct by school employees in the future.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.
