Although mostly overlooked, the most important feature of New York State’s newly passed Child Victims Act may turn out to be that it allows people who were sexually abused in childhood to sue public institutions as well as private ones such as the Catholic Church. Studies indicate it’s likely that more children have been sexually abused in public schools and other public programs, such as foster care, than in Catholic institutions. That may be so only because of the size of the nation’s public-school systems, which enrolled nearly 51 million students this year. But there are a lot of people who’ve been denied justice by laws exempting public agencies.
The New York measure, which the legislature passed on January 28, confronts this with a “look-back” provision that gives plaintiffs a one-year window in the statute of limitations to file previously time-barred claims. It specifically waives a state law requiring that, in order to sue a public agency, a notice of claim must first be filed within ninety days of injury. That deadline may be appropriate for someone who has slipped on the ice in a municipal parking lot, but it falls short of justice for the child victimized by a public-school gym teacher; it can take years for a survivor to understand the damage that was inflicted. The scandal in the Catholic Church made it increasingly clear that the nature of child sexual abuse requires much more flexibility in the traditional statutes of limitation in both civil and criminal cases.
Facing the possibility of crushing legal costs and enormous settlements, Catholic bishops across the country became the loudest advocates of allowing victims of sexual abuse in public schools to be able to sue for damages. It’s a just cause, but their motives are mixed: they hoped that worries about big payouts from the public treasury would stop states from opening the statute of limitations on lawsuits over child sexual abuse. So far, ten states have allowed retroactive lawsuits for sexual abuse of children, but for the most part, public institutions have been spared. California Governor Jerry Brown vetoed legislation in September that would have reopened the window for time-barred sexual-abuse lawsuits against private organizations but not for public agencies. He wrote that the bill failed to “address the inequities between state defendants and others.”
Often enough, bishops and their spokespersons have pointed to a 2004 study that Charol Shakeshaft, now a professor of educational leadership at Virginia Commonwealth University, did for the U.S. Department of Education. The study, required under the No Child Left Behind Act of 2002, determined that 6.7 percent of public-school students encountered physical sexual abuse during their schooling; with verbal or visual harassment included, the number rose to nearly 10 percent: 4.5 million children. These crimes might have led to an avalanche of civil litigation—except that most states have laws that make it difficult to sue public agencies, including public schools.
“While I do believe that the Catholic Church seized upon this as a way to try to stop an expansion of reporting, they were right: that if you’re going to extend these deadlines they should extend across the board,” Shakeshaft said in an interview with Commonweal.
Attorney Marci Hamilton, a University of Pennsylvania professor who is a leading expert on statute-of-limitations reform—and a critic of the ways Catholic bishops have tried to avoid liability for sex-abuse claims—has also written that public schools have not received the scrutiny they deserve. “This era for public schools reminds me of the 1980s in the Catholic Church cases when random cases would appear but no one had yet seen a pattern of abuse and cover up,” she wrote in 2016. Asked where the situation stands now, three years later, she said that it’s now widely recognized that “sex abuse occurs across all organizations and parts of society.”
When Shakeshaft began working on her 2004 federal report, she found that there had been very little study of sexual abuse in public schools; the best data was in a 2000 report by the American Association of University Women. Even that was something of an afterthought; the study actually began with a focus on peer sexual harassment, Shakeshaft said, but it emerged that about 10 percent of the children cited misconduct that came from adult employees.
The majority of the employee sexual misconduct in public schools involves adult men abusing female students, followed by adult women and male students, according to Shakeshaft. “In the studies of the men who sexually abuse in schools, almost all of them identify as heterosexual,” she said. “They’re often married and have children.”
Shakeshaft said that the data in her study of sexual abuse in public schools can’t be compared with the information in the reports the John Jay College of Criminal Justice did for the U.S. Catholic bishops on clergy sexual abuse. That’s because the John Jay studies were concerned with the percentage of priests who were abusers, while her data dealt with the percentage of children mistreated. But the aggregate number of children abused in the public schools would be larger than in the Catholic Church scandal, she said.
Investigative reporters have uncovered evidence of various sexual-abuse scandals in public schools, notably in Chicago, where the Tribune last year identified seventy-two school employees who allegedly abused students over the course of a decade. The Oregonian’s 2017 investigation of Portland schools turned up a case and stirred calls for reform. And in 2007, the Associated Press surveyed teacher disciplinary records in every state and the District of Columbia to document 2,570 cases in which teachers were punished for alleged sexual misconduct from 2001 to 2005. “There are 3 million public school teachers nationwide, most devoted to their work,” the AP noted. “Yet the number of abusive educators—nearly three for every school day—speaks to a much larger problem in a system that is stacked against victims.”
Some will say that the lack of news-media follow-up to such stories—unlike the Boston Globe Spotlight team’s Pulitzer-winning exposé of clergy sexual abuse in 2002—reflects a bias against the Catholic Church. But there is something particularly hideous about sexual abuse perpetrated by men who are accorded the sacramental powers and prestige of the Catholic priesthood. The hypocrisy involved when bishops claim moral and spiritual authority while concealing sex crimes will likely return the story to the media spotlight until those who bear responsibility are held accountable.
Even so, the practice of “passing the trash”—the term commonly used for passing abusive teachers from one public-school district to another—parallels the Catholic Church’s history of transferring priest abusers from one parish or diocese to another.