It's uncertain whether the pandemic has increased or decreased the number of abuse incidents. But at-home learning planted the seeds for future abuse as it established the normalcy of online relationships. (Credit: Syda Productions/Shutterstock.com)
Today's U.S. schools face many mandates, from ensuring curriculum meets rigorous standards to safeguarding students' psychological and physical safety. Yet despite media attention and thorough background investigations of new staff, sexual abuse and molestation risks continue for any school, no matter how professionally managed. Sexual abuse risks arise from teachers, staff, counselors and volunteers.
Negligence allegations are at the heart of sexual abuse claims. Victims and their custodial parents may allege school administrators failed to:
- Supervise.
- Appropriately respond to complaints of abuse.
- Sufficiently investigate the background of employees.
- Promote an atmosphere where students feel comfortable reporting abuse.
Understandably, today's insurers are increasingly retreating from the school market or limiting liability coverage options.
COVID-19's impact on sexual abuse ― safer at home?
In 2019, the U.S. Department of Education reported that U.S. schools experienced improved safety in the period pre-COVID. Post-pandemic, however, students are once again physically in the classroom where they may again face abuse risks.
Many experienced employees retired during the pandemic, introducing a large group of new, inexperienced employees who may not be familiar with sexual abuse risks. They may not understand their role in preventing and reporting incidents. This means school administrators must review sexual abuse prevention guidelines with all staff. Training should encompass the entire school community with a focus on newer teachers, providing them with an understanding of what types of allegations may rise to abuse and how to report concerns.
Representing the Mary Christie Institute, an organization working to improve the health of today's youth, Dana Humphrey and Katherine Chi write that students concerned about their COVID-19 "lost time" may begin drinking or practicing other risky behaviors to reduce their anxieties, putting them at greater risk of sexual assaults on campus.
As schools have been transitioning back to in-class learning, the risk for abuse remains, and in some respects, might be heightened. Online learning provides predators and cyberbullies with a new avenue to communicate with and groom at-risk students.
Out of necessity, teachers quickly learned to manage online spaces such as Zoom to reduce the hacking, introduction of illicit photos and obscene comments that proliferated in the first weeks and months of quarantine-mandated online education.
It's uncertain whether the pandemic has increased or decreased the number of abuse incidents. But at-home learning planted the seeds for future abuse as it established the normalcy of online relationships.
Coverage issues that schools face
The reduced availability of insurance coverage is the other nationwide problem, and there are several insurance challenges particular to school risk.
The biggest issue is reduction in sexual abuse and misconduct liability coverage limits. Many carriers now provide coverage only in the primary policies, and do not offer excess liability coverage. Some carriers are reducing the amount of coverage they will provide, and some carriers are excluding sexual abuse coverage completely.
Another critical change concerns a definition in the policy. Most carriers now use a "per-perpetrator" definition of occurrence in lieu of "per victim." This change limits the amount of liability coverage available for the same incident.
This is how that new policy provision would apply: Assume the policy limit is $1 million. In per-victim coverage, when one perpetrator abused three victims, each victim could receive $1 million. Now with the per-perpetrator coverage, all three victims would share the $1 million.
This is a significant change.
Additionally, carriers are increasingly using a claims-made coverage trigger. In the past, most abuse allegations were written on policies that had an occurrence trigger. Abuse that happened during that policy period would trigger coverage. On a claims-made liability policy, however, when the victim presents the claim triggers coverage.
Because abuse allegations may not surface until many years post incident, this means a current claims-made policy will not cover an event that happened years ago due to its retroactive date that eliminates coverage. As defined by the International Risk Management Institute, a retroactive date is "a provision … that eliminates coverage for claims produced by wrongful acts that took place prior to a specified date, even if the claim is first made during that policy period."
Summing up the challenges of school sexual abuse
Schools face many challenges in preventing sexual abuse. They often turn to insurers and representatives who specialize in the prevention and management of sexual abuse incidents. Schools are taking other measures as well, including training, employment policy updates and placing cameras throughout their schools, especially in isolated areas where abuse could occur.
One result of the increase in cases over the last five years is a desire to aggressively investigate and respond rapidly to allegations, but school administrators must be careful to conduct impartial but complete investigations when responding to sexual abuse claims. They also need to be wary of rashly pushing through discipline as there have been some cases of rebound suits from alleged aggressors where the school may have acted too quickly.
Today's insurers focus on sexual misconduct risk management on all school policy renewals. The insurance market is rapidly limiting coverage, and high coverage limits are much more difficult to find.
Society's standards have changed over the last few years in how we assess school risks associated with sexual misconduct. The number of claims increased dramatically with society's increased focus on resolving past transgressions.
Consequently, schools must change how they respond to sexual abuse accusations. An employee handbook policy is no longer sufficient. Schools must have a prevention plan in place. It must document how administrators are to identify, document and respond to sexual abuse incidents. It must provide for periodic background checks, training of all employees, and for tightly monitoring all persons on campus ― including temporary employees, visitors and volunteers.
Besides the social and emotional damage to victims, the reputational fallout for the school from these sexual abuse incidents is a reality no school administrator wants to face.
Working with a broker and an insurer that can help administrators avoid these issues can be a first step toward preventing and managing sexual abuse risks.
Kevin C. Beer is president of Wright Specialty Insurance, and Andrew Graham is managing director of Risk Management Services of Wright Specialty Insurance.
Opinions expressed here are the authors' own.
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