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Learning institutions serve as sanctuaries, where people of all ages can go to learn and discover new skills that can help them become more well-rounded individuals. Teachers and administrators play an important role in ensuring that this goal is achieved, and more often than not, they do all of us proud.
Sadly, some faculty abuse their power and engage in heinous acts against fellow workers, students or other individuals. According to the Australian Human Rights Commission, women are three times as likely as men to have been sexually assaulted in school settings or elsewhere. Additionally, 51% of students who went through this ordeal say they knew the perpetrator. These sexual abuse crimes leave a lasting impact on survivors, and the related mental, physical and emotional scars can be permanent. Their pain and anguish is shared by survivors’ family and close friends.
In short, sexual harrasment and sexual assault of children are serious problems. Whether you’ve experienced it yourself or are close to someone who has, someone – or something – must be held accountable. It raises the question: Can you sue a school for sexual assault for pain and suffering? The short answer is yes, but it is a complex matter that must be explored carefully before moving to obtain legal recourse against such an institution for child sexual abuse.
If sexual assault at school has affected you or a loved one personally and you’re considering legal action against a learning institution, contact Gerard Malouf & Partners for a free consultation. We’ll provide you with expertise and advice you can use as a guide for how to proceed.
Sexual assault is defined as a person being forced, coerced or tricked into sexual acts against their will or without their consent. If a child or young person under the age of 18 is exposed to sexual activities, this is also considered sexual assault and may be considered child sexual abuse.
Under the Sex Discrimination Act, it is unlawful for a teacher or a student over the age of 16 to sexually harass a student.
It is also unlawful for a student over the age of 16 to sexually harass a teacher. Complaints of sexual harassment can’t be made against students under the age of 16, but complaints can still be made against the school in such cases as the school has duty of care to protect both students and teachers.
Child sexual abuse involves exploitation of a child, including sexual abuse of the child or involving the child as a participant or spectator in an act of a sexual nature. Acts include prostitution, pornographic performances, assault (including sexual assault) of the child, or use of the child as a sexual object by one or more people.
Rates of sexual assault victimisation of Australians aged 15 and over recorded by police rose by more than 30% between 2010 and 2018, stated the Australian Institute of Health and Welfare. The majority of sexual assault offenders recorded by police were male. Many of these assaults take place in schools. Child secual abuse prevention needs strong attention.
If you or your child suffered sexual abuse in a public or private school setting, pursuing litigation against the school can help shed light oin this problem and traditional institutional responses, which are historically weak and designed to protect the school instead of the victims.
Contributing factors to child sexual abuse in schools include an all too common failure to act on disclosures and complaints of institutional child sexual abuse. Many schools do not respond adequately to reports of child sexual abuse, and prioritise protecting the school over the safety of children, particularly in private schools or those run by religious institutions.
Poor leadership and governance processes that lack transparency, and/or school boards predominantly made up of school alumni lead to a vested interest in upholding the reputation of the school. This can make it hard to reveal abuses, and allow more opportunities for abuse to occur.
Children are typically disempowered in school settings, and at the mercy of adults in schools – including principals, teachers, counsellors, nurses, housemasters and religious ministry representatives. When there are inadequate recruitment practices, teachers or other persons may be allowed to leave one school after an accusation and immediately take up work in another school where the pattern of abuse can continue.
Failure to establish clear policies and procedures or preventing or responding to child sexual abuses, an uncaring attitude toward victims leading to improper complaint handling can also cause issues in investigating or preventing child sexual abuse in schools.
The Australian Government upholds children’s right to education, and has also ratified international human rights treaties to protect children against sexual abuse in schools. Teachers, staff, administrators and others have a legal obligation to report suspected child sexual abuse to authorities, based on the National Safe Schools Framework.
School staff must respond to an incident, disclosure or suspicion of child abuse immediately or as soon as is practical. If the source of suspected abuse comes from within the school, staff must also report internally and to the Employee Conduct Branch.
Chief among the factors to be aware of is establishing negligence. In other words, there must be evidence showing that a learning institution – whether public or private – allowed the abuse to occur in one form or another. Schools don’t necessarily need to have known about it beforehand, but rather failed to take proper measures that could have prevented it from occurring in the first place.
Another aspect in determining if a school must pay compensation to survivors is who is affected by it and when the incident first occurred. For example, if you or a loved one experienced sexual assault as a child, there is no statute of limitations. So you may be entitled to compensation from the school regardless of when the incident took place.
However, if the sexual assault occurred while you or a loved one was an adult, a lawsuit must be filed within three years of the incident. Where the crime transpired may also factor into whether a school can be held financially responsible. Per the Australian Human Rights Commission, 10% of students who were sexually assaulted stated that incidents occurred on university grounds.
Failure to report child sexual abuse
Failure to report physical and sexual child abuse can be a chargeable criminal offence. All adults must report if they form a reasonable belief that a sexual offence has been committed by an adult against a child. The child must be fully supported and allowed to continue their education.
Any adult working in the school who has been subjected to an allegation, and against whom there is reasonable belief to suspect a sexual offence, sexual misconduct or physical violence committed against, with or in the presence of a child, must be removed.
Since failure to report is a common thread in child abuse cases in schools, this often represents a clear potential for a claim against the school for failure to uphold their duty of care. This is separate from any criminal charges.
The payout amounts for cases of child sexual abuse in schools can vary widely. While there is a National Redress Scheme for Institutional Child Sexual Abuse, not all institutions have opted into the scheme. Redress can include monetary payment, access to counselling and psychological services, and (if requested by survivors) a direct personal response from the responsible institutions.
Should you apply for redress?
Compensation under the redress scheme is low, in the opinion of many individuals and lawyers. The maximum payment you can obtain is $150,000 for claims involving penetrative sexual abuse. The redress scheme won’t take into account claims involving physical and/or emotional abuse, unless that abuse occurred in connection with sexual abuse, and doesn’t compensate for any loss of earnings you may have suffered as a result of the abuse.
In most cases, redress should be reserved as an alternative to taking your matter to court or settling it out of court, or for a top-up payment if you were not awarded much in court. It’s recommended to pursue full compensation by direct action against a school before seeking out the redress scheme. If you accept a payment through the scheme, you will be required to sign a full release. You won’t be able to further pursue your claim against the same institution(s) in the future.
If sexual assault has affected you or a loved one personally and you’re considering legal action against a learning institution, contact Gerard Malouf & Partners for a free consultation. We’ll provide you with expertise and advice you can use as a guide for how to proceed, and we take cases on a no-win, no-fee basis so you won’t have to pay for your representation if we don’t get you compensation.
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