Whether your organization serves the public in a government, education, or service role, today’s public entities face growing and unique risks when it comes to confronting and combating sexual misconduct.
Not only has overall awareness of the issue widened dramatically, but several factors also are quickly broadening the scope of potential liability. Here are three key legislative, legal, and social trends with significant impact on your obligations, responsibilities, and responses.
1. Expanding ‘reviver’ statutes
States across the country have enacted so-called “reviver” statutes, which allow legal claims for sexual abuse, formerly expired due to time constraints, to proceed. The statutes vary by jurisdiction, but most of them do one of the following:
- Eliminate the statute of limitations (the time frame during which survivors can sue) for such claims.
- Extend the statute of limitations.
- Open a “lookback” window (such as one, two, or three years) for expired civil and criminal claims to be filed.
For example, in August 2019, the one-year “lookback window” of New York’s Child Victims Act opened. However, due to the COVID-19 pandemic, New York recently extended the window for an additional year.
Such measures are quickly gaining momentum, according to national tracking by the Sean P. McIlmail Statute of Limitations Research Institute at ChildUSA. In fact, 29 states have introduced reform legislation this year.
While states’ windows and parameters for bringing claims vary, their enactment has led to a wave of new lawsuits across the country against institutions that employed alleged abusers. In New York, for example, 1,300 lawsuits were filed when the reviver window opened.
2. Heightened Title IX enforcement
Along with the mounting legal risks associated with statute of limitations reforms, regulators are also stepping up actions relating to school protections.
Title IX requires schools and districts to take appropriate steps to address gender discrimination. But the requirements of Title IX also apply to incidents of sexual misconduct, including those involving both student-on-student and staff-on-student.
Earlier this year, the Department of Education’s Office for Civil Rights (OCR) announced a new Title IX enforcement initiative to combat the rise of sexual assault in K-12 public schools. As a result, schools should expect these activities:
- Nationwide compliance reviews examining how sexual assault incidents are handled, including those involving teachers and school staff.
- Significant public awareness and support actions, focusing on raising awareness of the issue.
- Increased data review and collection to ensure that incidents of sexual assault and sexual offenses are being accurately recorded and reported – as the number of K-12 sexual-based complaints filed with the OCR is nearly 15 times greater than it was a decade ago.
The U.S. Department of Education also recently released its updated Title IX guidance. Key provisions include defining sexual harassment, providing a consistent framework for the involved parties (survivors, the accused, and schools) to follow, and requiring schools to offer clear, accessible options for any person to report sexual harassment.
3. Increased oversight of higher education
It’s no secret that colleges and universities have experienced increased scrutiny of their handling of sexual misconduct on their campuses. From April 2011 to April 2020, for instance, the federal government has conducted 502 investigations of colleges for possibly mishandling reports of sexual violence, according to an ongoing tracking report by The Chronicle of Higher Education. So far, 197 cases have been resolved and 305 remain open.
These actions – plus increased social awareness and activism – have led to widespread examination of leadership oversight, and that’s prompting colleges to significantly step up prevention and response. What’s being done? According to research by the Association of American Universities:
- 100% of its member institutions responding to a recent survey have changed or are in the process of changing their education and training about campus sexual misconduct and assault for students and faculty.
- 100% of institutions have developed, redefined, or enhanced programs to assist survivors of sexual assault and misconduct.
- 100% have surveyed students on issues around sexual assault and misconduct at least once since 2013.
With nearly 42% of students now saying they’ve experienced at least one sexually harassing behavior since enrollment, risk managers in higher education must take a broad view of the institution’s entire risk universe. Sexual misconduct on campus, for example, can take many forms, including harassing comments, retaliatory action, intimate partner violence, nonconsensual sexual contact, or stalking.
Protecting your public entity against sexual misconduct liability risk
As the climate continues to evolve, your best approach is to be proactive and thorough. In addition to stringent screening and hiring practices, any public entity needs well-defined engagement, reporting, investigation, and follow-up methods that align with the latest federal, state, and local regulations. By taking swift action in good faith, your organization can help protect the communities you serve – and help build a defensible position in the case of a claim.
Reviewing your insurance coverage in light of recent trends should also be part of your risk-mitigation strategy. Find out more about the range of tailored solutions that Liberty Mutual can offer to help protect your public entity here.
This website is general in nature, and is provided as a courtesy to you. Information is accurate to the best of Liberty Mutual’s knowledge, but companies and individuals should not rely on it to prevent and mitigate all risks as an explanation of coverage or benefits under an insurance policy. Consult your professional advisor regarding your particular facts and circumstance. By citing external authorities or linking to other websites, Liberty Mutual is not endorsing them.