5/21/2008
All Delaware Children Deserve Civil Protections Provided Under The Law

Delaware’s Child Victim’s Act (SB29) has now been in effect for almost one year.  It has allowed a number of victims of childhood sexual assault to gain access to the courts for previous assaults and more may step forward in the coming year.

Before SB29, victims had two years from the time of an assault to file a civil action against the individuals that assaulted them and the institutions who were charged with their safety and protection.  In addition to the two-year window of opportunity to allow past victims access to the civil courts when the statute had tolled, SB29 also eliminated the civil statute of limitations for future assaults.  This will allow future victims access to the courts and it will also force institutions to make sure their policies and practices do everything possible to protect children. 

A significant problem with the Child Victim’s Act is that it exempts the institution in Delaware that is responsible for the most children – the State of Delaware itself.

Unfortunately, the recent arrest of the Sussex Central High School principal for rape is not an anomaly.  According to news reports, since 1999 there have been 14 public school teachers and employees in Delaware arrested for the rape and sexual assault of children.  The victims were as varied as their predators in terms of gender, age and race.  This issue is not unique to Delaware.  An Associated Press investigation from last year “found more than 2,500 cases over five years in which educators were punished for actions from bizarre to sadistic”.

In the Colonial School District, a 60 year old man sexually assaulted a male special needs student in a bathroom.  Accepting the research on sexual predators makes it extremely difficult to conclude that this was the predator’s first victim.

In the Capital School District, according to the News Journal, an employee of the Department of Special Education was charged with 100 felony counts of first degree-rape, continuous sexual abuse of a child and other charges.  At the time of his arrest, he had been victimizing two 14-year-old girls for more than nine years.

Allegations have surfaced in another case that an employee of the Brandywine School District falsified the file of Rachel Holt after she was seen kissing a male student.  Ms. Holt was temporarily suspended for her actions but the file did not state the real reason for the suspension.  She was later arrested for multiple rapes of the student she had been seen kissing.  She was employed in a number of Delaware school districts in a relatively short period of time and it has been suggested to me that her criminal behavior was not limited to what took place while she was an employee of the Brandywine School District.

Did the state and school districts act properly in these cases and take every effort to protect the children under their supervision?  Were employees removed at the first hint of impropriety?  Rumors abound on most of these cases and questions often remained unanswered due to “personnel issues”.  Delaware has told private institutions and organizations that they will be held accountable for their actions.  It is now time for Delaware to live under the same law. 

As it stands today, agencies of the State of Delaware and public schools can employ a defense called “sovereign and limited immunity” that no other institutions in Delaware can utilize.  Essentially, a victim cannot sue the State of Delaware for its failure to properly protect them from abuse.  Public schools have defenses available to them that other institutions do not have, thus making it more difficult for a victim to prevail. 

Some have argued that the defenses available under limited immunity are meaningless.  If so, than why not either eliminate them or extend them to private institutions?  It has been suggested to me that school district employees are not really state employees, and therefore, the state should not be held accountable for the actions – or failed actions – of  school districts if their employees sexually assault a child.  Given the fact that the state pays 70% of school district salaries, provides a state-funded pension and sets up rules and regulations for most aspects of public education, this argument fails any test of reality.

The protections available to children under SB29 need to be extended to the 125,000 children who attend public schools in Delaware.  These protections need to be extended to special-needs students who are often unable to understand, defend or even tell what has happened to them.  These children suffer abuse at a much higher rate than their typical peers and are often left to the care of the state with no other options.

House Bill 242, which unanimously passed the House of Representatives, would extend the provisions of SB29 law to all children in Delaware.  The bill currently rests in the Senate and it should be passed before June 30.  The sexual abuse of children is a horrible thing.  The predators are just as diverse in their make up as those who employee them.  There should be no double standard when it comes to institutional accountability in connection with the sexual assault of children. 

While SB29 made significant changes and is one of the toughest laws of its kind in the country, it is hard to truly consider it landmark legislation considering there are 125,000 plus children who do not benefit from its protections. 

Fourteen arrests and thirteen convictions in nine years.  While many reasons exist for the passage of HB242, this record alone is a sufficient argument to enact this needed legislation. 

May 21, 2008
Gregory F. Lavelle
State Representative
11th District
500 Whitby Drive
Wilmington, DE 19803
302-478-6128
greg.lavelle@state.de.us

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