As an attorney who devotes a substantial amount of time in representing school children who have been sexually abused by school employees, I am appalled at the frequency of sexual exploitation of our school children and infuriated by the calculated decision to leave the sexually-violated child without a remedy. Denying our helpless school children legal rights after being sexually exploited and abused is a direct result of the impiety of our school system and those in positions of authority.
From the beginning of time, children and the elderly have been treated as the lepers of society as a result of their lesser intellectual functioning which prohibits their assimilation of money and power. As the world has become more educated, the injustice of relegating our children to a subordinate status has become more difficult to stomach. A minority of voices are gaining traction to protect our school children and to arm them with the protection of the law; however, it is essential that our legislature pass a law that requires Kentucky’s public schools to purchase insurance coverage that would be available to cover the damages of sexually exploited children.
- The Predator Subsidization Fallacy
In the typical sexual abuse case wherein a teacher sexually molests a school child, I, as an attorney, meet with the traumatized family and a child who desperately needs psychological counseling. I explain to the parents that it is not unusual for a pedophile to seek out positions in youth programs to gain access to the children of unsuspecting parents. I further inform the parents that if we are able to prove the claims against the teacher, the teacher will most likely be terminated from their employment and the insurance carrier for the school district will deny coverage. The denial of coverage will be based upon an intentional damages exclusion or other exclusion that does not provide coverage for criminal acts.
Although children who are forced to endure sexual molestation are the most vulnerable members of our society and are in desperate need of resources to cope with the tragedy, they are denied the right to the same compensation available to adults who are sexually harassed in the work place. The rationale comes from Goldsmith v. Physicians Ins. Co., 890 S.W.2d 644 (Ky. App. 1994), wherein the court quoted from a Federal case as follows:
Forcing the insurer to indemnity (sic) the insured ‘subsidizes the episodes of sexual abuse of which its victims complain, at the ultimate expense of other insureds to whom the added costs of indemnifying child molesters will be passed.’
At first blush, the refusal to subsidize a child molester’s conduct by providing insurance coverage appears to be a plausible argument. However, this same rationale does not apply to a bank that has given a mortgage on a property which is subsequently destroyed as a result of arson. Our courts have specifically held:
We hold that the issuance of a standard mortgage clause directing payment to a mortgagee [bank] regardless of the act of the named insured is not of itself violative of public policy.[1]
In other words, it appears that insurers are subsidizing episodes of arson at the ultimate expense of other insureds to whom the added cost of indemnifying arsonists will be passed. The differences between the two cases above can be summed up by the distinguishing factor of “money and power.” Our banks have the money and power and our children simply do not.
The subsidization argument is further belied by the fact that car insurance is available to cover injuries sustained in a motor vehicle collision, even if the person responsible for the collision intentionally caused it.[2] Thus, even if a driver were high on drugs and in a drunken rage and intentionally caused a motor vehicle accident, insurance is going to be available to pay for the injuries that are caused. No consideration of subsidizing episodes of reckless conduct of motor vehicle drivers is considered, nor is the ultimate expense to other insureds to whom the costs will be passed.
- School Children Deserve Equal Protection and Equal Remedies
The last analysis I will provide contrasts a five-year old who attends public school and is sexually molested by a teacher, with an adult who is sexually harassed in the work place. In the first scenario, the teacher is going to be terminated from their employment and charged with a crime, all of which will most likely render the teacher judgment-proof. The victim child has no power to stop the teacher’s conduct, nor does the child have any independent ability to afford the resources that will be necessary for the child to attempt to recover from the physical and mental injuries. No consideration is given to the victimization of the child. Rather, the focus is on refusing coverage on behalf of the child predator (damages to be awarded to the victim child) and the impact on insurance companies and other adult insureds. The student does not have a driver’s license and is not free to come and go from the school as he/she chooses and, thus, remains captive to the desires of the sexual predator. Furthermore, pursuant to KRS 159.070, children are required to attend school by our compulsory attendance law.
Now, contrast the child’s situation with that of an adult in the work place. The adult has a driver’s license and is able to leave the work place any time he/she chooses. In addition, there is no criminal penalty if they leave the work place and do not return. Most importantly, if they are sexually harassed at the work place, they may file a civil lawsuit and collect damages for the physical and psychological injuries that they sustained. Public policy does not prevent an insurance company from providing insurance coverage for sexual harassment episodes in the work place. In fact, many such policies are available for purchase in the insurance market place by employers who choose to carry such coverage.
In the seminal U.S. Supreme Court case of Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 60 (1986), a matter dealing with sexual harassment in the workplace, the Court identified the central issue in harassment actions as whether it was “welcomed” conduct. The Court found that even if the sexually-related conduct was voluntary, it provides no defense to the employer in a sexual harassment action. If the conduct is unwelcomed, the employer can be held liable for damages. This provides protection for an employee who reluctantly consents to the offending conduct because he or she is afraid of losing their job.
Therefore, our law provides that a five-year old student who is sexually molested by a teacher is most likely left with no ability to recover damages to compensate them for the debilitating physical and psychological injuries that they will have to endure for the rest of their life. That an adult may recover civil damages for harassment by a supervisor and a child who has been sexually abused by a teacher may not, is repugnant to fairness and a justice system that is supposed to be available to all members of society, regardless of money, power, gender or age.
- Insurance Coverage has a Salutary Impact that Decreases Risk
In 1752, Benjamin Franklin started the first insurance company by creating Philadelphia Contributionship for the Insurance of Houses from Loss by Fire. He did not do so to subsidize arson. He did so to share the cost of foreseeable risks. Back in Franklin’s day, the houses were made almost entirely out of wood and the settlements that grew into the cities were built close together. Therefore, there was a real danger that a fire might occur and damage several homes. New and better standards were adopted for building houses due to the fact that Franklin’s insurance company would refuse to insure houses that were considered fire hazards. Ultimately, today’s building codes and zoning laws can thank Franklin for their conception and the benefit that society has derived therefrom.
Whenever a risk is deemed worthy of insuring, risk management develops protocols to implement which ameliorate the risk. For example, a driver that has too many speeding tickets and/or DUIs will have to pay an exorbitant amount for insurance coverage. Auto insurance is mandated by law and, therefore, the risk management for auto insurance creates a huge disincentive for individuals to engage in reckless behavior behind the wheel. Conversely, if drivers were not required to carry insurance, and their conduct was of no consequence, one can only imagine how perilous the roadways would be for all of us. Our school children face a situation where there is no risk prevention to guard against sexual predators being employed in our schools and no incentive for the schools that hire them to implement safety measures.
- Conclusion
Now that you know Kentucky’s school children are exposed to foreseeable risks that carry the most horrific damages, what will you do to ensure that the children are protected and entitled to compensation for their injuries? How can society justify the protection of adults, both male and female, in the work place, but deny the same protection to our school children? Much lip service is paid to the cause of protecting and fighting for the rights of our children. However, our society sits idly by while this marked injustice continues school year after school year, one victim after another.
Common sense dictates that we insure our most valuable assets. Our legislature dictates that mandatory insurance be purchased for every motor vehicle on the public roadway. Insurance on our homes protects one of our most valuable assets in the event of fire or natural disasters. So what is society’s most valuable asset and that most worthy of insurance protection? It is time to stop neglecting our school children and provide them insurance protection for a foreseeable and recurring risk. The worst part of my job is informing the traumatized school child that in addition to there being no insurance coverage protection for the sexual abuse, the compulsory attendance laws require the child to continue attendance at school.
[1] Grange Mut. Casualty Co. v. Central Trust Co., N.A., 744 S.W.2d 838, 840 (Ky. App. 1989).
[2] See Mosley v. West American Ins. Co., 743 S.W.2d 854 (Ky. App. 1987).
