Published Online: April 30, 2003
Published in Print: April 30, 2003, as States Target Sexual Abuse By Educators

States Target Sexual Abuse By Educators

It's the type of publicity people never want to see about their schools. But on a single day this month, parents and educators in five different states woke up to the following headlines:

"Former Educator Sentenced for Sex Crimes"

"Teacher Convicted of Having Sex With Two Students"

"Abuse Nets Ex-Teacher a Year in Jail"

"Gilbert Teacher Charged With Sexual Misconduct With Student"

"Lawsuit Says School Officials Failed To Protect Young Girl From Teacher"

Those accounts of separate incidents came from the Associated Press on April 12. On any day of the year, though, it's long been easy to find similar reports of sexual misconduct by school employees. In 1998, a three-part

special report showed that such cases conformed to recognizable patterns and were happening in all sorts of schools in all kinds of communities.

State Policies Table

View an accompanying table, "State Policies on Sexual Misconduct Between Educators
and Students": Excel version | PDF version.

But now, a new Education Week survey suggests, at least some state policymakers are starting to pay more attention.

Whether it's criminalizing sex between educators and older teenagers, strengthening background checks of new teachers, or trying to prevent molesters from slipping away to new jobs, the survey shows that states are slowly taking aim at a problem that continues to give America's schools a black eye.

More than half the states now have sexual-assault laws covering educators who abuse their positions of trust by having sex with students, the survey found. Though school employees in many states can legally have sex with students as young as 16, more states are amending criminal codes to clarify that such behavior is out of bounds.

In 42 states, applicants for state certification are required to undergo criminal-background screenings that involve fingerprint checks through the Federal Bureau of Investigation and the state police, according to the survey. While experts say many shortcomings remain in state background-check policies, that number is far greater than the handful of states that were performing checks 15 years ago.

Some states have also taken steps to curb the problem known as "passing the trash": the practice of allowing employees suspected of wrongdoing to leave quietly for new jobs, often to abuse more students. In the Education Week survey completed this year, 17 states reported that they required local school officials to inform the state if educators leave their jobs amid suspicions of sexual misconduct.

The same number of states said they had laws shielding school officials from defamation suits based on job references given for current or former employees. Such laws grow out of a fear that officials will face lawsuits if they are candid to prospective employers about questionable conduct by former staff members.

Like many other educators, Barbara Underwood never used to notice all the headlines about schoolhouse sexual misconduct. But that changed after three employees in the suburban Indianapolis school district where she is the superintendent were arrested within a three-month period in 2001 on charges of having sex with students.

One is in prison, another married the student involved, and a third shot himself to death the day he was arrested.

"I've paid more attention to [the problem] since we went through our experiences," Ms. Underwood of the 12,500- student Carmel Clay district said in a recent interview. "I started noticing it's happening everywhere."

Priests and Teachers

Sex between students and school employees has taken place for generations. Yet many people inside and outside the profession have tended to view such cases as aberrations rather than a pervasive problem demanding policymakers' attention.

Contributing to this view has been a moral ambivalence in some quarters about consensual sex between educators and older high school students, which some regard as more the province of private conscience, or at least of individual communities, than of laws and regulations.

Still, recognition has gradually grown that educators' sexual misconduct with students—and the betrayal of trust it represents—takes a tremendous toll on the individuals directly affected, and on their schools and communities. ("At One California School, a 'Never- Ending Nightmare,'" Dec. 16, 1998.)

In response, state legislatures and departments of education have moved to tighten their laws and regulations. In part because the issue is generally not perceived as a national one, states have typically taken a go-it-alone approach.

The result is great unevenness among states in a range of policy areas, including whether consensual sex between educators and older teenagers is a crime, and under what circumstances.

That situation has frustrated many advocates for victims. Why, they want to know, has the problem of predatory educators received far less public attention than the issue of Roman Catholic clergymen who sexually abuse children?

"Everybody is all up in arms about the priests, but there's no difference from what priests and teachers have been doing to kids for decades," said Terri L. Miller, the president of the advocacy network Stop Educator Sexual Abuse, Misconduct, and Exploitation, or SESAME.

"Where is the outrage?" she continued. "Why aren't people protesting in Washington, demanding safe education? Why aren't people in an uproar?"

Others who have long been involved in the issue believe that American education is gradually becoming more honest about a problem it has commonly swept under the rug.

One is Bart Zabin, the chairman of the professional-practices committee of the National Association of State Directors of Teacher Education and Certification, which operates a national clearinghouse on educators whose licenses have been rejected or invalidated.

"There's lots of work still to be done," said Mr. Zabin, the principal investigator for the office of school personnel review and accountability in the New York state education department.

"But I think it's extremely positive to see that we continue to trudge forward in terms of raising the standard of security," he added. "Things are much better than they used to be, and we're still moving in the right direction."

Positions of Trust

One of the factors that influence whether a state is perceived to need laws targeting sexual misconduct by educators is its age of consent: the point at which young people can legally consent to sex with adults.

Thirty-two states set that age at 16; Colorado makes it 15; a half-dozen states set it at 17; and 11 states set the age of consent at 18, the Education Week survey found.

In part to help protect students above the age of consent, 27 states either make it a crime, or increase criminal penalties, for educators to abuse their positions of trust or authority by having sex with students, the survey found.

Still, educators in 14 states typically cannot be prosecuted for having "consensual" sex with students who are 16 or older, the survey found. By contrast, a less formal survey in 1998, Education Week found that it was legal in 20 states for school employees to have sex with students who were 16 and above.

One state that has tightened its laws to protect students above the age of consent is North Carolina. In 1999, the state made it a felony for school employees to have sex with students in the schools where they work.

"There were stories of teachers at middle schools who waited till their previous students were 16, and then engaged in a relationship with them," recalled Leanne E. Winner, the director of governmental relations for the North Carolina School Boards Association, which helped draft the legislation. "There was no way you could pursue them criminally. All you could do is dismiss them and try to revoke their license."

Despite the increased prevalence of laws aimed at preventing educators from abusing their positions of trust, those 27 state laws vary widely, the survey found.

In some cases, the statutes specifically mention teachers, administrators, coaches, or other school employees. Other laws define authority figures more generally.

Some of the laws increase criminal penalties for sex that would already be illegal, such as those involving students below the age of consent. Other statutes outlaw activity that would otherwise be legal.

States also differ on the ages of students covered by their position-of-trust laws.

In South Carolina and Iowa, for example, those laws only apply to students up to 15. Five states— Connecticut, Georgia, North Carolina, Ohio, and Wyoming—protect students regardless of their ages. But in Wyoming—as in Iowa, New Hampshire, and New Mexico—prosecutors must show that school employees actually used their positions to coerce students to submit to sex.

Impact Being Felt

Connecticut is especially stringent because school staff members are barred from having sex with students who attend any school in their districts, not just the schools where the employees work.

The scope of the law became an issue last year in a case involving a young teacher in Manchester, Conn., who began having sex with one of her students when the girl was 16.

Before the teacher pleaded guilty and was sentenced to nine months in prison, her lawyer, Salvatore Bonanno, challenged the statute outlawing staff-student sex as unconstitutionally broad. He argued that the bill would make a felon out of a 19-year-old school maintenance worker, for example, who was engaged to a senior at a high school across town.

"I don't think it's just, I really don't," said Mr. Bonanno, who is based in Hartford, the state capital. "There's an entire panoply of potential criminal offenders who fall under the statute. It's limited only by your imagination."

While the question in that case became moot with his client's guilty plea, Mr. Bonanno said he is interested in challenging the statute in the future.

Despite qualms raised about broad bans on sex between teachers and students, such laws are having an impact.

In the three years after the 1999 North Carolina law took effect, for instance, 71 educators were charged, including some whose cases are still pending, and 37 were convicted, state officials said. In Ohio, which has had its current ban in place since 1994, four male educators from the same suburban high school outside Cincinnati have pleaded guilty since December to charges of having sex with female students who were above 16— Ohio's age of consent.

"Were it not for that statute, it would not have been a crime," noted Daniel J. Breyer, the head of the criminal division in the district attorney's office in Clermont County, Ohio.

Ohio's law is seen by some advocates as a model because it forbids sex between school employees and students of any age, rather than only those under 18. Ms. Miller, of SESAME, has been calling for a federal law based on Ohio's statute. Failing that, the group backs widespread replication of the law in other states.

"We would like to get all states on board with that type of legislation," Ms. Miller said.

Some Ohio educators see holes, though, in the Buckeye State's efforts to protect children. For example, the Ohio Department of Education has been pushing for a bill that would require schools to report cases of sexual misconduct by certified educators to the department. The Education Week survey found that 17 states have such requirements.

"We are supposed to be notified by the courts, by the prosecutor's office, but we just don't feel that's enough," said Marilyn Braatz, a department spokeswoman.

Battles Persist

Advocates often find they must fight for years before they muster enough support for legislation targeting sexual abuse by educators. That certainly has been the case for Carol S. Petzold, a member of the Maryland House of Delegates. Ms. Petzold, a Democrat, saw her position-of- trust bill die in committee this month for the third year in a row.

Her legislation aimed to close what she views as a loophole in the state's sex- crimes laws: If teachers have sex outside of school with students who are above the age of consent—which is 16 in Maryland for intercourse and 14 for other intimate acts—then they cannot be charged with a felony.

"This is why charges are either not brought or dismissed in cases like that of the middle school teacher who had weekly sexual contact with his 14-year-old student off campus," Delegate Petzold told members of the House judiciary committee during a hearing in March on her bill, which would have made such acts criminal felonies. "It appears that we condone the sexual exploitation of older teens."

Prosecutors became concerned about the loophole following a case in the mid-1990s involving a teacher who was having sex with a student above the age of consent, recalled Bob Dean, the deputy district attorney in Prince George's County, Md. Mr. Dean, who handled that case, then successfully requested an opinion from the state's attorney general that made clear the shortcomings in the state's existing statutes.

"It's a pretty callous society that would sweep something like that under the rug," Mr. Dean said. "You're ruining somebody's childhood." In what has become a perennial debate in Maine, lawmakers are considering several bills that would repeal or scale back the state's law requiring fingerprinting and criminal-background checks of all school employees.

Spurred to oppose the 1999 law by a group of passionate critics—some of whom have resigned rather than submit to fingerprinting—the Maine Education Association is again pushing to repeal the law.

"Not all our members are as worried about this issue, but a significant number of our members are, and they just view it as an invasion of privacy," said Rob Walker, the president of the 20,000-member National Education Association affiliate.

Mr. Walker predicted that the best he could probably hope for this year is a bill to limit fingerprinting to new hires. Three years ago, opponents won legislative passage of such a measure, but then-Gov. Angus King, an Independent, vetoed the bill. The following year, he vetoed a bill that would have repealed the fingerprinting requirement altogether.

The debate in Maine is occurring without statistics on what its background checks have revealed, because state law prohibits the department of education from divulging data on the screenings. The state education commissioner favors revising the law to allow the agency to release aggregate figures, without employees' names—an idea the teachers' union opposes.

Genie Wheelwright is a Spanish teacher who left her job at a Maine high school after 14 years rather than get fingerprinted. She argues that money used on fingerprinting would be better spent hiring more personnel to investigate child-abuse cases; educating students on "how to protect themselves from potentially abusive situations"; training staff members to recognize signs of abuse; helping mistreated children "to step forward and speak up"; and ending "the 'pass the trash' problem in hiring."

"Administrators need to be sure that references give complete and candid appraisals of job applicants," Ms. Wheelwright told Maine legislators at a March 26 hearing.

'Very Clear Message'

In Indiana, a provision that would give immunity to administrators who provide just that type of reference was part of a broader measure that supporters were scrambling to pass last week as the state's legislative session neared its finale. The bill was inspired in part by the spate of abuse cases two years ago in the Carmel Clay school district, where Ms. Underwood is superintendent.

Supported by the state education department and the state's largest teachers' union, the bill would clarify that all school system employees, not just instructional personnel, are prohibited from having sex with students under 18. The age of consent is 16 in Indiana.

The bill would expand the scope of prohibited conduct to acts in addition to intercourse and would require prosecutors to notify both the state superintendent and local districts when licensed educators were convicted of certain crimes, mainly those involving drugs or sexual exploitation of minors.

Similar legislation was vetoed last year by Gov. Frank L. O'Bannon, mainly because of provisions related to government liability for punitive damages arising from lawsuits against public employees. Those issues have been addressed, and the Democratic governor backs this year's legislation. Versions of the bill passed both chambers of the legislature earlier this spring, but a final measure was pending late last week.

"It's going to send a very clear message to teachers and administrators that sexual relations between teachers and students will not be tolerated," said Terry Spradlin, the legislative liaison for the Indiana education department.

He added that the new reporting requirements would make sure that state officials found out about educator misconduct. "We sometimes hear about these instances second and third hand, so we're sometimes slow to react with license revocation," he said.

To Indiana state Rep. Gerald R. Torr, a Republican whose district includes the Carmel Clay schools, the bill passed by the House and Senate is a step in the right direction, but does not go far enough.

He pushed to require that districts be notified if employees were arrested for certain offenses, not just convicted. He said that change would have helped school leaders in Carmel Clay respond to the cases as they erupted in his hometown.

In one of those cases, a 55-year-old former high school soccer coach is in prison for engaging in sex with a 15-year-old boy on his team.

Another involves a 42-year-old 5th grade teacher and high school basketball coach who married a girl on his team right after receiving probation for having sex with her since she was 16. In the third case, a 30- year-old math teacher never stood trial on sex charges involving a 16-year-old girl in his class because he committed suicide after being charged.

"In two of these three instances, [school officials] found out about the situation when the news media called for comment, which is atrocious," Rep. Torr said.

Superintendent Underwood said she's not sure whether any of the provisions of this year's legislation would have prevented the cases that so traumatized her community. But that is beside the point, she said, if those cases can help prevent similar conduct in the future.

"These things are absolutely devastating to children," she said. "We never want this to happen to a child again."

Vol. 22, Issue 33, Pages 1,16,18

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