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Child Sexual Abuse: Liability Issues Revisited
We and others have written previously for the American Camp Association (ACA) on matters pertaining to child sexual abuse and neglect. As long as even one child is the victim of abuse or neglect, we must continue to focus our attention on this issue.
In the Fall 2009 CampLine, we wrote on mandatory reporting requirements for allegations of child abuse or neglect1 and, more recently, on the issue of inappropriate camper-to-staff contact after the camp season.2 Here we discuss more directly the general civil law liability of a camp relating to sexual abuse, discuss those areas of operation and management that are most likely to produce claims of liability, and identify the legal consequences of ignoring (or failing to meet) the duties of care associated with them. We also discuss the importance of a camp’s understanding of sexual abuse issues and preparation to address the threat, including the swift and appropriate handling of any incidents involving sexual abuse.
This article does not include a discussion of matters of criminal liability.
Generally, the legal duty of care owed by a camp to its camp families is to exercise reasonable care to protect the camper from unreasonable risks of harm. Whether a duty ultimately exists in a given situation — and the nature and scope of that duty — is determined by a court, as a matter of law. Importantly, the nature and scope of a duty can be influenced by a variety of factors, including applicable laws, a camp’s internal policies or express representations, and standards or practices in the industry. The precise nature of the duty will vary with the nature of the activity and the relationship of the camper and camp staff to it. This relationship can be characterized as one that is both custodial (the camp has essentially full control of the child) and fiduciary (families trust a camp to take care of their children), oftentimes forming the basis for the duty owed.
The courts will apply a standard of reasonableness to the camps' acts and omissions. If the court finds that a duty exists, the inquiry is: What would a reasonable camp have done in the same or similar circumstances? In applying this analysis, courts acknowledge that camps cannot completely ensure a child’s safety and that acting reasonably with respect to a child does not translate into a guarantee of his or her safety. Certain risks are inherent in camp environments and activities. Important for our discussion, however, is that sexual abuse is decidedly NOT one of those inherent or "reasonable" risks of camp, and a camp should, consequently, take proactive steps in their endeavor to protect children from such harm.
Camp Direct Liability
A camp can be found directly liable for the sexual abuse of a camper. Potential claims against a camp include those based upon negligence in screening, selecting, training, or retaining staff members; supervising staff members or campers; or failing to take reasonable measures to protect campers. Again, whether a particular duty exists in a given case is for the court to determine. If a duty exists, it is the fact finder’s (a court or jury) role to determine if the camp breached the duty, and whether that breach caused the harm suffered. (A camp’s potential “direct” liability is in addition, of course, to the liability of the alleged perpetrator).
In Juarez v. Boy Scouts of America, Inc. (“BSA”)3 — a non-camp but youth-serving organization example — the court found BSA owed a duty to protect a twelve-year-old boy scout from a volunteer troop leader who sexually assaulted him over a one-year period. The court found that BSA was not negligent in hiring, supervising, or retaining the volunteer, as nothing in his background or conduct as a scout leader revealed evidence to the BSA of his behavior. However, the court found that BSA had a duty to take appropriate measures to protect scouts from sexual molestation by volunteers. These measures included warning, education, and training (of the scout, his parent(s), and the volunteer leaders).
In determining that BSA owed a duty of care, the court looked to factors courts have commonly considered4 in determining whether a duty is owed in a given case, including the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered harm, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm.
In part, the court’s determination was premised on the fact that BSA understood the dangers and had developed a “Youth Protection Program” complete with written information for parents, disclosing the molestation risks, in their efforts to prevent these occurrences. In addition, BSA had compiled statistics showing that their efforts to mitigate sexual abuse had helped decrease the problems within BSA. Unfortunately in this case, the Spanish-speaking mother of the boy was given an English, rather than Spanish, version of the pamphlet.
The court noted that, alternatively, BSA’s duty to protect the scout from the acts of the troop leader could be based upon the special relationship existing between the scout and BSA, which also gave rise to BSA’s duty to protect the scout from the acts of the troop leader.
The case was sent back to the lower court for a determination of whether BSA had breached its duty of care and whether any breach had legally caused the harm.
Other examples of legal exposure in the face of an allegation of sexual abuse might include claims not just of negligence but of reckless or intentional misconduct, which could lead to a finding of punitive damages. Another example might be liability based upon the camp’s ownership of the premises, depending upon the facts of the case and the law in the particular jurisdiction. Recently, in Doe v. The Church Of Jesus Christ Of Latter-Day Saints, Boy Scouts of America, et al, 2012 U.S. Dist. LEXIS 124658 (August 31, 2012), the Idaho court allowed the plaintiff to proceed on claims of fraud, including a claim for “constructive fraud” in a case where the plaintiff alleged that, as a young scout, he was sexually molested by a scout leader. The court allowed the plaintiff to pursue this claim based upon a duty arising from a “fiduciary” relationship (one based upon trust and confidence) existing between the defendants and the boy scouts in their care.
Note that while most people think about the risk of staff-to-camper claims of sexual abuse, other types of abuse are a risk as well. These include camper-to-camper abuse (see this issue's Hotline article for the overview of the trends regarding this issue from the ACA Camp Crisis Hotline), third-party-to-camper contact (e.g. a vendor or guest visiting the camp property), and a child’s revelation to camp staff of abuse that happened to the child at another time and place.
Camp Vicarious Liability
A camp can also be held “vicariously liable” (under the doctrine of respondeat superior) for the acts of its staff members (including volunteers) committed in the course of their employment at the camp. However, in many cases (including in the Juarez case), courts will refuse to hold an organization vicariously responsible for sexual abuse committed by an employee (or volunteer) because such conduct is not considered to have been committed in the scope of employment. As the Juarez court stated: “Under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment and should not be imputed to the employer . . . Employees do not act within the scope of employment when they abuse job-created authority over others for purely personal reasons. The imposition of tort liability for a third party's sexual misconduct requires that direct negligence be established.”
On the other hand, commentators suggest that there may be room for imposition of vicarious liability against an employer where the employee is in certain positions of trust and confidence. “Counselors, therapists, clergy, youth leaders, and others in a position of trust and confidence often seem to take advantage of innocent or vulnerable [individuals] to engage in sexual activity with them, usually to their detriment. Although sexual activity is quintessentially personal, such activity is one of the risks of relationships that generate confidence.”5
Proactive Risk Management
Considering a camp’s potential legal exposure, the question remains: How can a camp proactively address the risk of sexual abuse occurring at its camp, in its ongoing endeavor to protect the well-being of children in its care? We have relied on experts in the field6 in describing strategies for addressing the issues of sexual abuse and, while acknowledging that we are not experts in the field, have suggested a few of our own.
Authors, consultants, and others in the industry have broken down the issue of addressing sexual abuse into three areas: preparation (or readiness), detection (or reaction), and reporting (or response). We will use these categories in our discussion.
Staff Screening, Selection, and Training
A significant aspect of preparation is deterrence. Both the opportunistic and the "grooming" predator (one who carefully plans over time) will be discouraged by the full-throated announcement by a camp of its zero tolerance of any conduct that even hints of abuse and its commitment to protecting its campers. A would-be abuser will more likely steer clear of a camp that appears to have its act together.
Though not a guarantee of safety, staff screening, including criminal background checks, are essential (note the mandatory elements of ACA screening standards HR.4 and HR.5). The mere fact that active screening takes place will be a deterrent to some. Strategies such as “skillful screening” and interviewing that reveal to applicants the camp’s awareness of abuse techniques and efforts to screen out potential predators can also assist in screening out those who are interested in abusing children.7 Consider refreshing prior screens for existing staff (which is mandatory in some states). Sources of information concerning criminal background checks are available at ACA’s Web site (www.ACAcamps.org/publicpolicy/cbc) and elsewhere.
Screening out all potential abusers is impossible — for example, people who may intend to abuse (but have no criminal record) or who may have already abused but have not yet been caught (and thus have no criminal records). Others may take a random opportunity to abuse. As a result, additional efforts should take place after staff screening and hiring is complete. These steps include the education and training of staff, campers, and families. As noted, many well-qualified and resourced organizations provide such education and training, and important information is offered at ACA conferences and can be found in ACA standards (www.ACAcamps.org/child-health-safety/child-abuse/standards) and on ACA’s Web site (www.ACAcamps.org/child-health-safety/child-abuse/articles/staff-training).
A wise camp will take advantage of those resources, and not rely on its own "gut instinct" regarding the issues. The training should be frequent, to reinforce prior learning and introduce new information and insights. Staff should be taught, among other things, how to recognize the behaviors of a would-be predator and of a threatened child, appropriate behavior in working with children, appropriate supervision and the process for reacting (including intervention), and reporting. As discussed in our Fall 2008 CampLine article, camp management must understand — and communicate clearly to staff — applicable state child protection laws regarding the definition of child abuse, any mandatory and general reporting requirements, and any applicable state licensing laws affecting camps that may impose additional or different requirements. Ideally, the camp will also establish, in advance of an emergency, a good working relationship with local authorities.
Campers and Camp Families — Education and Training
Camps will find that some level of training on these issues may have been provided to its campers and families in their schools or places of worship. Camps, however, should be frank and forceful with parents in stressing the importance of children being educated and trained to identify abusive behavior and how to react to it.8 This can be a combined effort between the camp and the parent — with the camp providing the parent with resources to educate their child and, simultaneously, the camp informing the parent of the education it provides to staff and campers upon their arrival at camp. In addition, parents might be educated to "red flags" that could appear in letters or calls home. Parents should understand the camp’s notification and reporting policies regarding incidents involving their child or other campers. The child should understand how and where to seek immediate help if he or she feels threatened.
Other Issues of Preparation
While camps should have policies that appropriately avoid one staff member being alone with a child, the camp should also regularly inspect the physical layout of its grounds and facilities to identify and perhaps modify places that are isolated and pose an opportunity for one-on-one interactions. Rick Braschler refers to this as a “clean sweep” of the premises.9 Other considerations include visits to the camp premises (or a remote site) by vendors, guests, or third parties who may pose risks to the campers. The camp should consider a plan to monitor these interactions (and the grounds and facilities in general) in efforts to minimize risks of abusive contact with campers.
Special attention should be paid to out- of-season communications between staff and campers — mail, telephone, or social media — and to "off campus" visits, including recruiting and "meet-up" events. As we discussed in our Spring 2012 CampLine article, the camp's duty of care does not stop at the camp gate or end with the camp session. Families and camp management must be sensitive to contacts between camp representatives and past and future campers and their families, and camps should create policies in this area. Visits to campers and potential campers must be announced and managed appropriately by the camp administration.
In the event of a lawsuit, the camp that can demonstrate a reasonable level of preparation, including training and education, is more likely to be viewed by a court as properly addressing the problem and, consequently, not held liable for an unanticipated event that allowed no time for intervention. As we have discussed in many of our articles, any policies should be clear, simple, flexible (as appropriate), doable, and conveyed to and understood by staff. Obviously, a policy created by the camp but ultimately NOT followed can create serious problems for the camp in its effort to defend its preparedness and reaction to an incident.
In our Fall 2008 CampLine article, we identified ACA standards that include strategies to minimize the risk of camper abuse and are pertinent to preparing families, campers, and staff regarding sexual abuse. Those standards are an important resource for all camps, whether accredited or not, and can impact a camp’s legal exposure.10 Those standards, as updated (and among potentially others), include: HR.4, Annual Staff Screening (mandatory); HR.5, New Staff Screening (HR.5.1 mandatory); HR.9.2, Supervision Ratio Exceptions; HR.12, 13, and 14, Staff, Late-Hire, and Inservice Training; HR.16, Staff/Camper Interaction; HR.18, Sensitive Issues Policy; HR.19, Supervisor Training; HR.20, Staff Observation; and HW.10, Parent Notification.
The key to detection, or reaction, is alertness and recognition of a threat to the well-being of the camper. The policies, training, and education referred to above will certainly include these matters. Strategies include oversight, observation, and supervision.
A challenge in this area is distinguishing between an innocent and inadvertent event and one that poses a real threat. The overarching concern is the protection of the child, and if there is to be an error in judging the true nature of an act, it should be made on the side of intervention. An act that causes discomfort — mental or physical — cannot be tolerated, whatever the intention. Two recent events are instructive:
In the first, a child being assisted into her climbing harness by a male staff member shouted, "You touched me." This outcry, alone, reflects good training of the child. So far as could be determined, the touching was totally innocent and did not extend beyond what might have been expected in working with the child and harness. The matter was investigated, however, and the camp's policies were altered to require a second staff member's presence while the adjusting is taking place.
A second event involves several male mid-teenage campers and junior staff members, who, during their school year, were invited to dinner (and offered drinks!) by an adult camp representative who "was in town" and "just wanted to get together." The boys were, at first, flattered and willing, but before the evening went very far, wisely excused themselves and left the scene. The version of the story we were told did not include what, if anything, was reported to whom; but such an event should have been promptly brought to the parents' and the camp's attention.
Reporting (And Response)
Camp reporting and subsequent response will be directed by the authorities that the camp contacts (see the “Case Study 7 Resources” in this issue's Hotline article for the phone numbers of who a camp should call when they suspect a child has been the victim of abuse) and will most likely include the isolation/removal of the alleged perpetrator, investigation of the matter, and contacting the family (or families) involved.
In addition, camps should encourage their camp families to report — to the camp — information, or merely a concern, based on communications from their camper. Camps should also teach campers that if they are a victim of abusive conduct, or merely feel threatened, they should report it to a staff member. Staff should be trained to report an incident, observed or suspected, involving staff member or camper abuse. (The camp should create and reinforce a culture and code of behavior that includes these reports.) Whatever the form or source of the report, it should be made immediately and directly, and it should be conveyed promptly to the camp executive charged with the responsibility for these matters. That person should in turn make a report, as appropriate, to the required authorities. Those with reporting responsibilities should be held accountable for taking the matter "up the ladder."
Among the lessons learned from the recent revelations concerning certain staff members (and executives) of Penn State University is the harm that can be caused by not fully carrying out the reporting expectations. A family, lower level staff, or campers should not be inhibited in any way in their efforts to confirm that the appropriate authorities have been informed of the incident.
Families — and juries — who might be inclined to accept a momentary lapse that results in harm will not (we have learned convincingly) be forgiving of a camp's failure to react and report.
Other response actions include, of course, implementation of the camp’s emergency response plan, including attending to the other campers; contacting camper families, insurance providers, and legal counsel, as appropriate; investigation by the authorities; documentation; implementing a media response plan; and other steps.
A camp has significant potential for legal exposure for claims involving child abuse. Although a camp must anticipate and prepare for the protection of its reputation and resources in the event of a claim against the camp involving child abuse, a camp’s priority is its efforts to protect the well-being of children in its care. This priority includes a camp’s endeavor to manage and minimize the risk of child abuse occurring “on its watch” and to sensitively and appropriately report and handle claims of abuse. Child abuse results in lifelong physical and emotional challenges for its victims. Research bears out that many perpetrators actively seek out organizations and activities that will give them access to children. Therefore, camps can be attractive targets for individuals intent on abuse. Consequently, camps must understand the law and implement a plan that will prepare its staff, campers, and camp families to address the threat.
*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.
Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail email@example.com; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney .com; www.hansenstampattorney.com.
1. Gregg, R. and Hansen-Stamp, C. (2008). Camp mandated reporting requirements and related issues — An update. CampLine, 19(2). Retrieved from www.ACAcamps.org/sites/default/files/images/campline/2008fall.pdf
2. Gregg, R. and Hansen-Stamp, C. (2012) After-camp contacts between campers and staff: A problem? Whose? CampLine, 23(1). Retrieved from www.ACAcamps.org/campline/spring-2012/after-camp-contacts
3. 81 Cal. App. 4th 377 (2000).
4. Referring to Rowland v. Christian, 443 P.2d 561 (Cal. 1968), a well-known California case that identifies various factors that assist the court in its decision on whether to impose a duty in any given case.
5. Dobbs, Dan b., The Law of Torts, 2nd Ed., Vol. 2 (2011), section 429.
6. Consultants of note include Rick Braschler, risk manager for Kanakuk Camps and speaker — recent author of “The Fight For Innocence,” July 16, 2012 (www.ACAcamps.org/child-healthsafety/child-abuse/articles/recognizing), author of the Child Protection Plan, 2nd Ed. 2012 (www.camphow.com/educationevents/child-protection-seminars); Kimberly Norris, lawyer and speaker — co-creator with her husband, Gregory Love, of the programs: Ministry Safe and Abuse Prevention Systems, ACA-endorsed programs, www.ministrysafe.com and www.abusepreventionsystems.com.
7. See note 6, for resources, specifically Norris & Love’s “skillful screening” techniques.
8. On the important role of parents in educating their children, see: Norman Friedman, M. Ed., “Child Sexual Abuse Prevention: A Critical Role of Parents,” Camping Magazine, November/ December 2010: www.ACAcamps.org/campmag/1011/childsexual-abuse-prevention-critical-role-parents.
9. Braschler, Child Protection Plan, 2nd Ed., 2012.
10. Gregg, Charles R. and Hansen-Stamp, C. (2011). Standards — Friend or foe? Revisited. CampLine, 22(1). Retrieved from www.ACAcamps.org/campline/s-2011/standards-friend-foe