THE LEGAL RAMIFICATIONS OF FAILING TO ACT

1. THE LEGAL RAMIFICATIONS OF FAILING TO ACT SCOTT T. SUMMERS, ESQ. STAFF ATTORNEY MISSOURI SCHOOL BOARDS’ ASSOCIATION 573-445-9920 SUMMERS@MSBANET.ORG

2. WHY ARE WE HERE? • INCREASE IN THE FREQUENCY OF SEXUAL ABUSE OF CHILDREN • HIGH PROFILE CASES OF INSTITUTIONS FAILING TO REPORT • TECHNOLOGY IS MAKING IT EASIER TO COMMIT THESE CRIMES

3. TEENS AND COMMUNICATION • 63% say that they use text to communicate with others every day. • 39% of teens make and receive voice calls on their mobile phones every day. • 35% of all teens socialize with others in person outside of school on a daily basis. • 29% of all teens exchange messages daily through social network sites. • 22% of teens use instant messaging daily to talk to others. • 19% of teens talk on landlines with people in their lives daily. • 6% of teens exchange email daily.

4. CONT. • IN 2009 – 50 TEXTS PER DAY; 60 IN 2012 • 75% OF TEENS TEXT • 14-17 y.o. 100 PER DAY • 1 IN 4 OWN SMART PHONE • 77% OWN CELL PHONE • GIRLS TEXT MORE THAN BOYS – 100 PER DAY • HEAVY TEXTERS ARE MORE LIKELY TO OWN A SMART PHONE • HEAVY TEXTERS ARE LESS LIKELY TO OWN COMPUTER

5. SARCOXIE, MO • BOARD MEMBER (DR.) OWNED A FARM AND HAD SEVERAL HIGH SCHOOL STUDENTS OVER TO WORK AT THE FARM • STUDENTS ALLEGED THAT BM EXPOSED HIMSELF TO THEM • WHEN LAW ENFORCEMENT CAME TO INVESTIGATE FOUND PICTURES, FILES, COMPUTER IMAGES, ETC OF CHILD PORN • AS YOUNG AS 5 YEARS OLD • FEDERAL CASE

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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!!

14. 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

15. 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

16. 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

17. 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

18. 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.

19. 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”

21. 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

22. 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

23. OTHER LAWS • STATUTORY RAPE • < 14 (1ST); 21-<17 (2ND) • SEXUAL MISCONDUCT • SEXUAL MISCONDUCT INVOLVING A CHILD • SEXUAL ASSAULT • CHILD MOLESTATION • <14 (1ST); <17 (2ND)

24. 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???

25. 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…

26. TEACHER CONSEQUENCES • TERMINATION • REVOCATION OF CERTIFICATE • REGISTRATION

27. TERMINATION • TWO TYPES OF TEACHERS • PROBATIONARY • EASIER TO TERMINATE • TENURED • CAN TERMINATE FOR VIOLATION OF BOARD POLICIES • GOVERNED BY THE TEACHER TENURE ACT

28. TEACHER TENURE ACTSection 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.

29. 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

30. TERMINATIONIMMORAL CONDUCT • MUST BE SOME NEXUS BETWEEN THE IMMORAL CONDUCT SHOWN IN THE EVIDENCE AND THE FITNESS TO TEACH • ANY MATERIAL BREACH OR CAUSE STATED BY LAW FOR THE TERMINATION OF A PERMANENT OR PROBATIONARY TEACHER

31. IMMORAL CONDUCT CONT. • 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.

32. 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

33. 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

34. 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

35. 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:

36. 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.

37. 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.

38. 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.

39. PART II FAILURE TO ACT

40. NEW MISSOURI LAW SECTION 160.261.11 • If a student reports alleged sexual misconduct on the part of a teacher or other school employee to a person employed in a school facility who is required to report such misconduct to the children’s division under Section 210.115, such person and the superintendent of the school district shall report the allegation to the children’s division.

41. NEW MISSOURI LAW Also – all mandatory reporters shall, upon finding reasonable cause, directly and immediately report suspected child abuse or neglect as provided in Section 210.115.

42. MANDATED REPORTERSECTION 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 THE INSTANCE IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 210.109-210.183

43. 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

44. IMMUNITY IN REPORTINGSECTION 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

45. 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

46. 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

47. 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

48. SECTION 162.069STUDENT/STAFF COMMUNICATIONS • SHALL HAVE A POLICY CONCERNING EMPLOYEE-STUDENT 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

49. SCHOOL POLICYREPORTING • 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

50. 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