Protection for All Our Children

New Jersey passed the Child Sexual Abuse Act in 2004.  Under the CSAA, “a…person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse…” N.J.S.A. 2A:61B-1.

In Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), the New Jersey Supreme Court applied the above provision of the CSAA to private boarding schools. Thus, where a teacher in the private boarding school American Boy Choir School sexually abused a student, the school was also considered a “passive abuser” for permitting the sexual abuse to occur.

Thus under Hardwicke v. American Boychoir School, 188 N.J. 69 (2006), students who attend private boarding schools are given additional protections against sexual abuse. But what about those students who cannot afford to attend private boarding schools? Are children in public schools afforded the same protections?

As of right now, the New Jersey Appellate Court has said that the answer is no.  In J.P. v. Gregory Smith, — A. 3d – (App. Div. 2016), the New Jersey Appellate Division held that the CSAA did not apply to public schools.

In that case, J.P. was sexually abused by her high school assistant band director. The sexual abuse occurred in J.P.’s home, on school sanctioned (and school funded) overnight trips, and in the school itself. J.P. argued that she was entitled to the same protections under the CSAA as those children who were private boarding school students.

The issues raised in J J.P. v. Gregory Smith, — A. 3d – (App. Div. 2016) are important and concerning issues.  Shouldn’t public school students receive the same protections and rights as private boarding school students?

The Appellate Court attempted to draw a distinction between students who live at their schools and students who do not.  That is not a realistic distinction.  Todays students, like J.P., spend the majority of their day at school.

Forty-four percent (44%) of Middle and High School aged students in New Jersey start school before 8:00 a.m. and eight-five percent (85%) start school before 8:30 a.m..[i]    The average New Jersey Student has a school day of 7 hours and 6 minutes. [ii] That number does not include after school activities.  J.P. was involved in her high school band. That activity requires extensive afterschool involvement and practices.

A student involved in activities is likely to spend even more of their day at the school or on a school sponsored (and funded) activity.  Indeed, arguably many children spend more hours in a day in school or school sponsored (and funded) activities than they do in their own houses. It’s clear that when parents hand their children over to these schools, the schools stand in loco parentis for these children and the schools become like a second home.

Children are essentially treating the school as they do their own houses. They have their own private space (i.e. lockers) and belongings in the school. Students will store clothing and other items on the school premises. Students are provided with food by the school. In fact, with a start time prior to 8:30 a.m. for eighty-five percent of students, many students are frequently eating at least two meals (breakfast and lunch) at school.  Students in activities may even be eating all of their meals at the school. The school acts as a shelter for these kids and provides the support, aid, help, relief and assistance that children rely on.  Schools even provide for discipline of children, just as their parents would.

In fact, teachers and guidance counselors push students to get as involved with activities as possible, and spend more time at school, for the sake of their college applications. In the inner city and poorer areas of the state, there is a push for more school sponsored activities. The idea is that keeping children on school premises or engaged in a school activities for longer will keep them out of trouble and off the streets. Thus whether the goal is to boost a resume for a college application or to keep kids off the streets, it’s clear that the state is encouraging its students to be in school and school sponsored activities for most of their day.

How then does this match up with New Jersey’s current sexual abuse law? It doesn’t. We are simultaneously encouraging kids to spend the majority of their time in the safety and protections of our schools, while not actually providing the incentives for those schools to be safe.

Because of the passive abuser provisions of the CSAA, private boarding schools face a large disincentive for turning a blind eye to a teacher who is sexually abusing students or for failing to take the necessary precautions regarding same. Presently, under the law as interpreted in J.P. v. Gregory Smith, public schools do not have the same disincentives. They do not face the same liability.

Under the CSAA, a public day school should be considered a household just as a private boarding school is.  Although it is true that most students may not necessarily reside at their day school as they do their house, they should undeniably be protected by every adult at their school in the same fashion as they are protected by family members within their primary household and domicile, especially where, as is the case for many children, they are spending significantly more time in at their school or at school sponsored activities then they are spending in their home.