A Violence against Minors in the Campus - Research Paper Example

What Duty of Protection Does a College Owe Minor Invitees? Abstract Programs that are open to particular nonstudent groups or to the community may involve litigation over the custody of the college of visitors to the campus, including children or high school learners enrolled in pre-college program of study, or of its own students. Children may be on campus either because they are trespassers, they are enrolled in campus social programs for instance summer camps, they are enrolled in campus athletic or educational programs; or they are using such facilities in the campus as day care center or a library or are attending an event. Potential claims may entail legal responsibility for injuries sustained in premises that are supposedly faulty, sporting events, vehicular accidents, assaults or other crimes. The fact that children are under the age of majority makes it hard for a college respondent to hold the argument that a certain peril was ‘open and apparent,’ or that the child assumed the risk of the danger (Kaplin & Lee, 2007). Given the unique relationship between students and a university, this paper examines the duty of care owed to minors when on campus, specifically in Title IX cases of sexual harassment. It tries to examine if there is an additional duty owed to minors when university students are given supervisory responsibilities over them (as is commonly the case with counselors in summer camps), and if there is a duty owed to university students in order to protect them from potentially violent minors on campus. Further, the paper examines whether there is any extra duty owed concerning statutory laws in cases of any sexual misconduct on campus grounds wherein a minor assumed to be a fellow student is involved.  Introduction College campuses are areas that are susceptible to high rates of crime. Compared to almost anywhere else in the country, one is more prone to crime on a college campus. Although most colleges are aware of this, often, the institutional reaction to this problem is just a masquerade. The commonest of all violent crimes that take place on campus is rape (Weitzman, DeJong & Finn, 1999). Out of four college women, one is the victim of attempted rape or rape. One study revealed that in seven months only, out of every 1,000 female students, there were thirty-five rapes. Ninety percent of campus women who are victims of rape know their assailants, who are usually ex-boyfriends, boyfriends, friends, or classmates and most of the rapes take place in dormitory rooms or at parties. The first few weeks of their freshman and sophomore years make students most susceptible to rape and such factors as the abundance of drugs and alcohol, private dormitory rooms, frequent unsupervised parties among others contribute to this heightened danger. Typically, these students are afar from home for the first time and oblivious of the perils facing them, many of them may have a bogus sense of safety on campus. While 10% of campus rapes take place in fraternities, more than half take place in the residence of the victim. While most of the victims report the crimes, roughly a third do not, mainly because they fear reprisal. Concisely, in many campuses, the occurrence of rape is evidently foreseeable: in fact, a report by the Department of Justice came up with the conclusion that in a college with ten thousand female students, more than there hundred and fifty rapes could occur in one year (Fisher et al., 2000). Rape leaves the emotional and physical well-being of a woman devastated and can even have an effect on her learning and career plans. The victim can experience depression, humiliation, shock, suicidal thoughts, anxiety, anger, social isolation, distrust of others, guilt, sexual dysfunction and fear of AIDS. Many victims quit school, mainly for the reason that they cannot put up with interacting with their assailants constantly (Finn, 1999). Typically, during admissions, colleges give surety of safety to their students while on school grounds. However, they regrettably often do not put these into effect. While going to college, students are usually not prepared fully for adult life freedoms and devoid of their families’ continuous, active involvement. Seeing that acquaintance rape is more preventable and less random compared to stranger rape, colleges’ responsibility is obvious (Fisher et al., 2000). The Congress and courts are aware of the fact that colleges need to enlighten students regarding the risk of campus crime better. The Student Right to Know and Campus Security Act of 1990, currently called the Clery Act, necessitates colleges to give a report of all campus crimes’ statistics and provide information about their security measures. The 1992 Campus Sexual Assault Victim’s Bill of Rights made amendments to the security clause and required schools to come up with policies whose aim is specifically lowering campus rape. Each college, under the Clery Act, must keep a daily record of all crimes that take place on campus in addition to publishing an annual report of the same, both of which must be readily available for public viewing and turned out upon request (Findlaw.com, 2010). There are several redress avenues to violence victims on campus especially so considering the fact that campuses have massive populations of young women who are usually at a higher risk of sexual assault compared to women in a corresponding age group or in the general populace. Since colleges are completely aware of this risk, they therefore have a duty of warning students of the likelihood of suffering assaults on campus. As proprietors, under the law of premises liability, there is a possibility of holding colleges liable for insufficient security. Additionally, since most colleges take upon themselves the duty to provide security on campus, under the assumption-of-duty theory, they may also be liable. Moreover, under Title IX, colleges can be sued civilly for student-on-student sexual harassment and sex discrimination. Title IX of the Educational Amendments Act of 1972is the federal law that forbids sex discrimination in educational institutions. Following its passage, the United States’ Education Department released its guidelines for compliance with Title IX. In the Department, the Office for Civil Rights (OCR) has the mandate of enforcing Title IX. It ensures compliance of Title IX by institutions that get federal finances in addition to protecting persons in employment and practices of employment in educational programs or activities that receive federal financial assistance from discrimination based on sex (Ucsc.edu, 2010). An important form of discrimination that Title IX prohibits is sexual harassment of students by other students, employees within the school or third parties. Sexual harassment in schools has acquired acknowledgment as a serious problem with the passage of Title IX of the education amendments of 1972 and with rising awareness of sexual assault in general. An increasing number of parents and students have pursued court action against school districts following their failure to remedy sexual assault. The Supreme Court ruled its first Title IX school sexual assault case, Franklin v. Gwinnett County Public Schools, in 1992. The plaintiff in that case was a high school student who a teacher assaulted sexually. The Court acknowledged that private persons presenting Title IX cases could sue schools for damages involving money. Since Franklin, on Title IX sexual assault litigation has multiplied. In the year 1993, NOW Legal Defense and Education Fund and Equal Rights Advocates, Doe jointly litigated a case against Petaluma City School District. In this case, a federal court gave a landmark ruling identifying that Title IX forbids student-to-student sexual harassment. The federal agency that enforces Title IX together with the U.S. Department of Education’s Office for Civil Rights (OCR), in March 1997, gave out a policy guidance that described the potential liability of schools for students’ sexual assault. The OCR guidance confirmed the responsibility of schools for the prevention of and remedy to sexual harassment (Wu, 1998). In a June 1998 case, Gebser v. Lago Vista Independent School District, which akin to Franklin involved a student’s sexual assault by a teacher, the Supreme Court addressed that question of how and when schools will be held liable for monetary damages under Title IX. The Court, n a deeply split 5 to 4 ruling, held that school districts are under Title IX liable for money damages only when a school administrator with power to take remedial measures has actual assault knowledge, and has acted with intentional indifference. The Court rejected Gebser’s Title IX claim upon applying that standard to the facts arguing that even though the principal received complaints regarding the teacher making unsuitable remarks in the classroom, those complaints did not notify the school district of the sexual harassment of Gebser by the teacher. The Court also established that failure of school district to have a formal anti-harassment policy or grievance procedure, in violation of the Title IX regulations, did not establish liability, in and of itself. Nevertheless, the Court’s emphasis was that the Education Department could enforce Title IX administratively. It also clearly stated that schools have an obligation of taking corrective measures once they know about sexual assault (National Organization for Women, 1998). Many courts have determined that founded on premises liability, a duty of care exists between an educational institution and a student. An individual attending school has a business invitee’s legal status (Justia.com, 2010). In addition, while a proprietor is not the insurer of the safety of a business invitee, he or she/the institution have a duty of taking sensible steps towards protecting an invitee from predictable crimes. Actually, courts have maintained that sexual assault on a college campus is predictable, and hence, the college has an obligation of preventing harm to every of its students. Courts have also maintained that even though the modern college is not required to ensure the safety of its students, it can willingly take upon itself a protective duty, which includes the duty of warning students concerning sexual assault (Gerstein and Gerstein, 2004). Looking into several key relevant cases will illustrate these concepts. In Mullins v. Pine Manor College, the petitioner was a first-year student, and according to the school regulations, she was supposed to live on campus. One evening, after returning to the dormitory, Mullins went to have a talk with a friend in the next-door dormitory room, leaving her own door open. On returning, she locked her door and went to sleep. At around 4:30 a.m., an intruder awakened her and threatening her, he put a pillowcase over her head, following which he led her out of the building to the college-dining hall where he raped her. Prior to this incident, no violent incidents had been reported on the campus, but a year earlier, there had been a burglary there and on the night preceding Mullins’ attack, a man had climbed over the campus fence and gotten into a building close to her dormitory. At the time, there were two security personnel on duty, but none caught her attacker (Hennessey, et al., 1983). The Mullins court established that a group of young women living together offers an opening for criminal activities and that the likelihood of students suffering from assault was ‘self-evident’. The court noted that barely are students in a position to hire guards, install additional locks and alarms, and the like. In some instances, the short periods that students reside in their dormitories de-motivate them to make such changes, while in others; doing so may be against the regulations of the college. The court therefore affirmed that it was reasonable for students, parents as well as the general community to suppose that it is the duty of colleges to take precautions such as installing additional locks and hiring security guards. Assumption of duty: The Mullins court also established that a college may take upon itself a duty of providing a secure campus and pointed out that a voluntarily assumed duty presumes a certain level of care too. The court in this case said that the assumption of duty by the college was not ‘gratuitous’ asserting that through a dormitory fee or through tuition, students pay for their security. It therefore established that students and parents alike have a logical anticipation that a school will provide safety for its students (Hennessey, et al., 1983). Another case, Delta Tau Delta, Beta Alpha Chapter v. Johnson, demonstrates totality of the circumstances. The in this case was an Indiana University student, who a member member of Delta Tau Delta fraternity chapter of the school sexually assaulted her. The plaintiff and the offender had several drinks together throughout a party held at the chapter house, and he later offered her a ride home. The court’s records show that prior to leaving the party, he took her into a private room, locked the door, and raped her. During fraternity parties on the same campus in the two years that preceded this incident, there had been numerous occurrences of alcohol abuse, including one in which a female student drank by force to until she fell sick and when she tried to stop drinking, she suffered physical abuse. Worse still, just a month prior to the assault of Johnson, Delta Tau Delta national headquarters had sent its chapters pamphlets with information regarding college rape, including a discussion of latest proceedings against fraternities for litigations concerning sexual assault and alcohol abuse (Selby, 1999). Applying the test for totality of the circumstances, the ruling of the Indiana Supreme Court was that Delta Tau Delta had an obligation of offering Johnson a duty of reasonable care. The court held that calling a sexual assault ‘not foreseeable as a matter of law’ in this situation would ignore the facts. This case may be the exceptional one in which a proprietor in a social host circumstance is held as having a duty of taking reasonable care to shield an invitee from another person’s criminal acts. However, when the proprietor has the ability to take reasonable safety measures for his guests from a projectable criminal act; courts should not be hesitant in holding that a duty exists (Selby, 1999). In another case, Stanton v. University of Maine, the plaintiff met a man at a party, who walked her back to her dormitory later. Upon getting there, she left partially open the door to her room as she went in. The man entered the room and assaulted her sexually. Stanton argued that the university had a duty to warn her of any dangers and that it never did so. The Stanton court, citing Mullins, ruled that although there was no proof of previous crimes at the college, ‘foreseeability’ could be based on the fact that the university’s safety measures exist, since it is only if criminal acts were foreseeable that these measures would be sensible. Therefore, the responsibility of a college to protect students from crimes that third parties commit is firmly grounded in the law. The two principles of assumption of duty and foreseeability provided an adequate legal basis for this duty, and therefore concluded that ‘in addition to being foreseeable, the risk of such a criminal activity was actually foreseen’ (Wathen, et al., 2001). Conclusion Once a college takes upon itself the duty of protecting students, it cannot neglect it. This duty is usually implicit in dormitory agreements that necessitate students to reside on campus, in student handbooks that delineate safety regulations of the school, as well as in the behavior expected of student groups, for example athletic teams and fraternities. If colleges assume the duty to supervise student groups and fail to do so properly ensuing in harm, they may be responsible if they. Additionally, majority of colleges have their own programs for educating students concerning sexual assault. In fact, proving failure of a college to implement these programs properly is another redress avenue for a college campus sexual assault plaintiff. References Findlaw.com, (2010): 20 U.S.C. § 1092: US Code - Section 1092: Institutional and financial assistance information for students. Retrieved from http://codes.lp.findlaw.com/uscode/20/28/IV/F/1092 Finn, P. (1995): Preventing Alcohol-Related Problems on Campus: Aquaintance Rape: A Guide for Program Coordinators. Bethesda, Md: Higher Education Center for Alcohol and Other Drug Prevention. Print Fisher, B. et al. (2000): The Sexual Victimization of College Women. Available at http://www.ncjrs.gov/pdffiles1/nij/182369.pdf Gerstein, R. M. & Gerstein, L. (2004): Education law: an essential guide for attorneys, teachers, administrators, parents and students. United States: Lawyers & Judges Publishing Company. Hennessey, C. J. et al., (1983): LISA MULLINS vs. PINE MANOR COLLEGE & Another. Retrieved from http://masscases.com/cases/sjc/389/389mass47.html Justia.com, (2010): Premises Liability. Retrieved from http://www.justia.com/injury/premises-liability/ National Organization for Women, (1998): Gebser v. Lago Vista Independent School District. Retrieved from http://www.now.org/issues/harass/gebser.html Selby, J. (1999): Delta Tau Delta, Beta Alpha Chapter, and Delta Tau Delta, National Fraternity, Appellants (defendants below), Vs. Tracey D. Johnson. Retrieved from http://www.law.indiana.edu/instruction/dongjerd/tortsvault/deltataudelta.pdf Ucsc.edu, (2010): What is Title IX? Retrieved from http://www2.ucsc.edu/title9-sh/titleix.htm Wathen, C. J., et al., (2001): Dolores Stanton et al. v. University of Maine System. Retrieved from http://www.courts.state.me.us/court_info/opinions/documents/01me96st.htm Weitzman, E., DeJong,W. and Finn, P. (1999): Alcohol and Acquaintance Rape: Strategies To Protect Yourself And Each Other. Retrieved from http://www3.uwstout.edu/aod/acquaintance.cfm Wu, Y. (1998): Trends in Sexual Harassment Litigation Under Title IX. Retrieved from http://www2.edc.org/WomensEquity/pubs/digests/digest-title9-harass.html Read More