Citizens to Prevent Child Sexual abuse: Massachusetts Laws

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Citizens to Prevent Child Sexual Abuse

Massachusetts Senate and House leaders filed several bills in the 2023 Session to prevent child sexual abuse in our schools, youth organizations and communities. Here are links to these bills, a summary of key provisions, and why passage must be achieved. Join today with other citizens, survivors and child advocates to Pass the Prevention Package! 

These bills would: 

  • Require education about child sexual abuse prevention for all schools and youth organizations, and require them to adopt prevention policies;
  • Strengthen the screening of applicants for positions in schools to identify any past sexual misconduct;
  • Prohibit the aiding and abetting of a school employee engaged in sexual misconduct with a student to secure a position in another school;
  • Close the “age of consent loophole” that has been providing legal protection for individuals engaged in sexual relations with youth 16-18 years of age;
  • Increase penalties for educator-specific sexual misconduct and for persons in positions of authority over a child who commit child sexual abuse.
Actions YOU Can Take to Prevent Child Sexual Abuse 
About the Bills:
#1 Mandating Child Sexual Abuse Prevention Education in Schools and YSOs

S314 filed by Senator Joan Lovely: https://malegislature.gov/Bills/193/S314

H194 filed by Representative John Lawn: https://malegislature.gov/Bills/193/H194

These companion bills, An Act Stopping Harm Inflicted by Exploitation of Life and Development, AKA the “SHIELD Act”, include the following key provisions:

  • Child Sexual Abuse Prevention Education is required for schools (public, charter, private) and youth-serving organizations, including all employees and students.
  • Includes education to prevent adult-perpetrated and child-on-child sexual abuse;
  • Mandates adoption of a comprehensive abuse prevention policy, including a Code of Conduct that describes appropriate adult/child interactions, and inappropriate or boundary-violating behaviors that can often be precursors to illegal sexual offenses.
  • Informs parents and the public about the policy and their responsibility to report boundary violations to designated school authorities.
Why Passage of S314 and H194 is Crucial

According to the US Department of Education, 7% or 3.5 million American school children in Grades 8 -11, report having had unwanted direct sexual contact with someone in their school – usually a teacher or coach – during some point in their school career. Substitute teachers, bus drivers, teacher aides, security personnel, principals and counselors were among other school employees identified. Overall, the DOE report found that when non-touching sexual offenses were included, e.g. sending illicit texts or photos, making suggestive comments, etc., the percentage of school children exposed to contact and/or non-contact sexual misconduct rose to 10 or 4.5 million students.[1] Given the Massachusetts student population of 1 million, that means that as many as one hundred thousand Massachusetts school children may be vulnerable to this type of harm. 

Despite these alarming numbers, two-thirds of teachers don’t receive training in preventing, recognizing, or responding to child sexual abuse, either in their college coursework, or as part of their professional development.[2] Not surprisingly, a study of primary school teachers found the most common reasons for not reporting suspected child sexual abuse was their lack of confidence in their ability to identify it, and to respond appropriately to suspicions.[3]

Another study of teachers’ attitudes toward and knowledge of child maltreatment found that 87% said they were unaware of the signs of child sexual abuse and would not report sexual abuse to school authorities, even if a child disclosed to them.[4]

This unwillingness to report is likely influenced by the expressed fears and biases of school personnel documented by MassKids as part of its in-person training of school personnel. These include: disbelief that a colleague could be engaged in sexual misconduct, dismissal of rumors about misconduct, concerns that reporting would reflect badly on the school, fears of not being supported by other colleagues and administration if they report, fears of being sued if allegations were proven false, abdicating to others the legal responsibility to report a suspected case; or misinformation that children likely lie about being sexually abused.[5]

As regards the education of school personnel about child sexual abuse, a 2014 report of the Government Accountability Office (GAO) indicated that while 18 states at that time required school districts to provide “awareness and prevention training on child sexual abuse,” almost all the training was focused on mandated reporting of cases after-the-fact rather than on proactive actions to prevent it in the first place.  Furthermore, 15 of the 18 limited the training for superintendents, administrators, counselors, psychologists, and teachers, with less than half requiring it for Title IX coordinators, cafeteria and janitorial personnel and bus drivers. Only 10 required coaches to take the training and only one required it for school volunteers and tutors.[6]

Schools are charged with the fundamental dual responsibility of educating children and ensuring a safe and nurturing environment that allows them to learn.  Without adequate training, educators may not understand the impact childhood trauma, including child sexual abuse, can have on a child’s learning and academic success. In one study, the cognitive abilities, memory scores and academic achievement of sexually abused children were lower than those of their non-abused peers.  For example, 48% reported below average grades, 39% displayed academic difficulties, 24% repeated a grade, 15% were enrolled in remedial classes, and a higher percentage failed to graduate.[7]

Clearly, educating adults, students and their parents about child sexual abuse prevention through training opportunities in schools and youth organizations, is a key strategy to end the silence, shame, and denial that has undermined the safety and well-being of our children for so long.

History of the prevention education bill: Read More

In the 2015/2016 Legislative Session, after a successful multi-year effort to reform criminal and civil Statute of Limitations (SOL) statutes on child sexual abuse, MassKids and survivors turned their attention to passing a set of prevention-focused bills, including S316 requiring CSA education in schools and YSOs, S.247 requiring standardized screening of school and YSO personnel, and S868/S869 eliminating age of consent protections for school employees engaged in sexual misconduct with students 16-18 years of age.  

In the 2017/18 Session, Omnibus bill S295 was introduced combining these and other provisions, but was held pending broader support from teachers’ unions and other organizations.

In the 2019/2020 Session, an amended S2579 was passed favorably by the Committee on Education and was headed to the Senate Floor for an anticipated unanimous vote, however, was stalled due to the pandemic.

In the 2021/22 Session, S369 and H241 were introduced to require public and private schools and youth-serving organizations to educate all employees and all students about child sexual abuse prevention, and require them to adopt a code of conduct detailing prohibited boundary-violating behaviors. The bills passed through the Education committee but did not get to the floor for a vote. Advocates are hopeful that the current versions of these bills, S314/H194, will pass this year.

#2 Establishing Employee Screening Requirements to Prevent Child Sexual Abuse 

S1040 sponsored by Sen. Joan Lovely: https://malegislature.gov/Bills/193/S1040

H434 sponsored by Rep. Natalie Blais: https://malegislature.gov/Bills/193/H434

S1040 and  H434 require schools to screen employees to prevent sexual misconduct through:

  • Adoption of a standardized hiring application with questions to be answered by prospective employees regarding the disclosure of any prior history of sexual abuse or misconduct;
  • Contacting the applicant’s current and former school employers if the person was in a position directly involved with children to get relevant information about their history of sexual abuse or misconduct;
  • A written authorization to be signed by the applicant allowing the current employer and previous employer to share employment information, and releasing those employers from liability for providing the information;
  • Protections from civil and criminal liabilities for schools that share information about an employee’s misconduct;
  • Prohibition from entering into confidentiality agreements with an employee if intended to suppress information about that employee’s misconduct
  • Prohibition of a school employee from assisting an employee that he/she knows or has probable cause to believe has committed sexual misconduct against a minor or student in violation of the law from obtaining another position in a school
Why Passage of S1090 and H434 is Crucial

In 2010, the U.S. Government Accountability Office (GAO) conducted a cases study of public and private schools to explore the factors relating to the hiring or retaining of individuals with histories of previous sexual misconduct.[8]  Of the 15 cases examined, eleven involved people who previously had targeted children. In at least six cases, the GAO found offenders used their new positions to abuse more children.  

The following factors were found to have contributed to their hiring or retention by the schools: 1.) school officials allowed teachers who had engaged in sexual misconduct toward students to resign rather than face disciplinary action, often providing subsequent employers with positive references; 2.) schools did not perform pre-employment criminal history checks; 3.) even if schools did perform these checks, they may have been inadequate in that they were not national, fingerprint-based, or recurring; and 4.) schools failed to inquire into troubling information regarding criminal histories on employment applications.  

In 2017, the federal “Every Student Succeeds Act” (ESSA) responded to the stated concerns of Congress about State and Local Education Agencies not adequately addressing the sexual abuse of students which it indicated had increased fifteen fold since a decade ago.[9] Under SEC. 8546. Prohibition on Aiding and Abetting Sexual Abuse, the U.S. Department of Education now requires- a state, state education department or school that receives Federal funds under the Act to establish laws, regulations, or policies that prohibit any school or its employees from assisting an employee in obtaining a new job, if the individual or agency knows, or has probable cause to believe, that such school employee engaged in sexual misconduct regarding a minor or student.

Passage of this legislation would meet our state’s obligation to meet the ESSA requirements and would further build the capacity of schools to protect students from the devastating consequences of child sexual abuse and its impact on families and our communities.

History of the screening bill: Read More

In the 2015-2016 Legislative Session, Massachusetts proposed a bill to prohibit the allowing or encouraging of school employees engaged in sexual misconduct to resign in lieu of an internal investigation, outside investigation or legal action, as well as providing a positive reference to assist the employee secure a job in another school. This practice has been labeled “passing the trash” by other states.  Bills were proposed in both the House (H.1374) and Senate (S.247).  This practice had been all too familiar as Massachusetts was the first to document the actions of Catholic Church officials who, when faced with pedophile priests in their midst, routinely sent them to unsuspecting parishes where they continued to abuse other children. 

In 2017 S295, the bill was introduced as part of a broader Comprehensive Child Sexual Abuse Prevention Act which included specific provisions on Sexual Abuse Prevention Hiring Requirements, including prohibitions on confidentiality agreements aimed at suppressing information about sexual misconduct or abuse, and liability protections for schools sharing information about an employee’s sexual misconduct with another school. During this session, support for the bill was secured from numerous public and private groups, including teachers’ associations. The bill, however, failed to pass before the end of the session.

In January 2020, S295 provisions were divided into two bills, including one mandating certain hiring practices to prevent child sexual abuse. Due to the pandemic, action on both bills was stalled. In 2021, to support passage, mirror bills in the Senate (S1091) and House (H1471) were introduced. Unfortunately, they were not reported favorably out of the Joint Committee on the Judiciary. Advocates are hopeful that the current versions of these bills, S1090/H434, will pass this year.

# 3 Preventing Child Sexual Abuse by Adults in Positions of Authority or Trust

H1537, filed by Rep. Ken Gordon: https://malegislature.gov/Bills/193/H1537

“An Act relative to the age of consent in certain criminal prosecutions and civil actions for sexual assault and rape of a child“, states that students ages 19 or under who haven’t received a High School diploma and are enrolled at a college cannot consent to sex with adult employed by that college. These students will have a civil cause of action against an adult who engages in a sexual relationship with them and the adults can face fines, imprisonment, or both.

H1538, filed by Rep. Gordon https://malegislature.gov/Bills/193/H1538 “An Act relative to preventing educator sexual misconduct and abuse of children and youth”, and S106, filed by Sen. Lovely: https://malegislature.gov/Bills/193/S106 “An Act relative to preventing sexual abuse of children and youth by adults in positions of authority or trust”, address anyone over the age of 21 employed or contracted by a school, youth organization, state department serving children, etc. who engages in sexual relations with a student under the age of 19 or with a person under age 22 who has special needs. Such an individual may not claim the age of the victim, even if they are over the age of consent, as a defense in a civil action (H1538 and S106), or in a criminal prosecution (H1538).

H1538 includes imprisonment, fines or both, requires that the person register as a sex offender and, if a teacher or other certified professional, that their license be revoked.

S1036, also filed by Sen. Lovely, https://malegislature.gov/Bills/193/S1036 “An Act relative to sexual assaults by adults in positions of authority or trust“, criminalizes sexual misconduct by any person in a position of trust, authority or supervision over a child. Over 20 types of such individuals are listed. A child under the age of 18 would be deemed incapable of consenting to any sexual relations with such an individual, closing a loophole that has provided cover for sexual abusers who engage in non-sexual grooming behaviors with a child under 16, and then escalate to sexual offenses after the child reaches 16 – the age of consent. This means that a defendant in a criminal action under these provisions could no longer use the age of consent as a defense. The bill includes specific punishments for sexual assault and battery against a child under 14 years of age, youth between 14 and 18 years, and youth over the age of consent from 16-18. 

Why Passage if Crucial

These bills close the “age of consent” loophole, which allows defendants to claim that the victim consented to sexual act(s). Since the age of consent in MA is 16, defendants’ lawyers can claim that the offender believes the victim aged 16-18 consented. If it cannot be proven by prosecutors that the victim did not consent, then the age of consent can be used as a defense to help offenders escape prosecution. This problem is worsened when educators or other adults in positions of authority groom students until they reach of the age of consent, acting increasingly inappropriately with the student until they are 16 and then beginning a sexual relationship with them.

Another result of the grooming process, as we have heard from several adult survivors of educator sexual misconduct, is that the victim may believe at the time that the sexual relationship is consensual and that the abuser loves them, and they often will not recognize it as grooming and abuse until they are an adult in their 20s, 30s, or even 40s.

As awareness of child sexual abuse, educator sexual misconduct, and the power imbalance between adults in positions of authority and students grows, more states have passed laws to close the “age of consent loophole”, with 39 states and the District of Columbia having adopted statutes that specifically prohibit the sexual abuse of children by individuals working in or associated with schools and by persons in positions of authority that include school personnel. (See our Criminalizing Educator Sexual Misconduct Map).

Massachusetts is one of only 11 states that has not yet passed this law to protect children.

#4 Eliminating the Statute of Limitations (SOL)

S1038, filed by Senator Lovely, https://malegislature.gov/Bills/193/S1038 and H1614, filed by Representative Lawn, https://malegislature.gov/Bills/193/H1614 are mirror bills, “An Act eliminating the statute of limitation in civil child sexual abuse cases“. These bills amend Ch. 260 so that a civil claim involving child sexual abuse can be found and filed at any time after the crime has occurred.

H1536, filed by Representative Gordon, https://malegislature.gov/Bills/193/H1536 “An Act amending the statute of limitations relating to civil rights actions and criminal prosecutions for the sexual assault and rape of a child”. This bill would amend Ch. 260 so that a civil claim can be filed or criminal prosecution taken at any time after the child sexual abuse offense occurred.

Why Passage is Crucial

The SOL on child sexual abuse cases, although it has been extended in Massachusetts in 2014, still limits access to justice for survivors and is a barrier to ensuring sexual abusers face consequences and cannot continue to abuse children. The majority of child sexual abuse is not reported while the victim is still a child, due to trauma and secrecy. Most victims will not share or report what happened to them until years after the fact, and in many cases, the SOL can make it impossible to pursue civil damages or criminal charges.

That is why many states are reforming or eliminating the SOL on child sexual abuse. According to CHILDUSA, in 2023, 31 states have introduced SOL reform bills for CSA, including 12 to eliminate criminal SOLs, 22 to eliminate civil SOLs, and 19 with revival/windows.

44 states have no criminal SOL for CSA, 15 States have no Civil SOL for CSA, and 24 states have Revived expired SOL. For more information, go to https://childusa.org/2023sol/

Although MA made changes in 2014, according to ChildUSAdvocacy, MA still receives an F on revival laws, as well as the cap on civil damages allowed due to charitable immunity. MA is far behind the national movement. There is no real institutional incentive to be transparent and to implement better child protection policies, procedures, and responses, given that the 2014 law did not apply to institutions. In short, children are still in harm’s way in Massachusetts until the SOL is eliminated.

Support eliminating the SOL:

Contact your legislators! You can send an already drafted email asking your Senator and Representative to support these bills. https://actionnetwork.org/letters/ensure-justice-for-survivors-of-childhood-sexual-abuse-eliminate-the-statute-of-limitations?source=direct_link&


History and Current SOL Law: Read More

In 2014, after a 10-year effort by survivors, advocacy organizations, and legislators, a bill was passed to extend the SOL in Massachusetts to age 53 for civil cases. Previously, suits had to be brought “within three years of the acts alleged to have caused an injury or condition or within three years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act, whichever period expires later.”

In 2006, a law was passed increasing the statute of limitations for criminal prosecution of child sexual abuse from 15 to 27 years. If the victim is “under the age of sixteen at the time such crime is committed, the period of limitation for prosecution shall not commence until the victim has reached the age of sixteen or the violation is reported to a law enforcement agency, whichever occurs earlier,” so a victim could potentially not report the crime until they are 43 years old. The law also tightened reporting and supervision requirements for convicted sex offenders. 

While these expansions were a significant victory at the time, the ideal goal is the elimination of the SOL for civil and criminal CSA cases.

Actions YOU Can Take to Prevent Child Sexual Abuse
  • Contact your Senator and Representative TODAY and urge them to sign on to these bills.
  • Attend our Prevent Child Sexual Abuse Massachusetts Virtual Advocacy Briefing via Zoom on April 20th, 10am-12pm to learn more about these bills and how you can support them! Learn more and register at: https://enoughabuse.org/prevent-child-sexual-abuse-massachusetts-advocacy-briefing/
  • Sign up below for email alerts and updates on public hearings and events on these bills.
  • Reach out to local media and refer them to MassKids so we can inform the public about these bills and the stories behind them.
  • Schedule a virtual meeting with us to engage your group, club, faith organization, etc. in advocacy efforts to pass these bills. Contact us at info@masskids.org to arrange.
Join Citizens to Prevent Child Sexual Abuse today!
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References:

[1] Shakeshaft, C. (2004). Educator Sexual Misconduct: A Synthesis of Existing Literature PPSS 2004-09. US Department of Education.

[2] Kenny, M. C. (2004). Teachers’ attitudes toward and knowledge of child maltreatment. Child abuse & neglect, 28(12), 1311-1319.

[3] Goldman, J. D. (2007). Primary school student-teachers’ knowledge and understandings of child sexual abuse and its mandatory reporting. International Journal of Educational Research, 46(6), 368-381.

[4] Kenny, M. C. (2004). Teachers’ attitudes toward and knowledge of child maltreatment. Child abuse & neglect, 28(12), 1311-1319.

[5] Bernier, J. and Shime, P. “Enough! Preventing Child Sexual Abuse in My School,” a one-hour, evidence-informed training course on child sexual abuse prevention for public and private school personnel, MassKids, Inc. Boston, MA, June 2017. (https://elearning.enoughabuse.org/)

[6] “Federal Agencies Can Better Support State Efforts to Prevent and Respond to Sexual Abuse by School Personnel” General Accountability Office, January, 2014 14-42.

[7] Daignault, I.V. & Hebert, M. (2009). Profiles of school adaptation: Social, behavioral, and  academic functioning in sexually abused girls. Child Abuse & Neglect, 33, 102-115.

[8]  K-12 Education: Selected Cases of Public and Private Schools That Hired or Retained Individuals with Histories of Sexual Misconduct. Report to the Chairman, Committee on Education and Labor, House of Representatives. Government Accountability Office, 2010. GAO-11-200 https://www.gao.gov/assets/320/313251.pdf

[9] “Secretary DeVos Announces New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools” Press Release, February 26, 2020.  (Find DOE/OCR link – contact press@ed.gov (202) 401-1576.

 
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