Sexual behaviors in young children can range from exploratory and normal to abusive and violent. Under federal law, the Title IX of the Education Amendments of 1972, schools have an obligation to protect children from inappropriate sexual behavior, including child-on-child sexual abuse. This obligation can be complicated when the allegation involves five-and-six-year-old children, for whom touching body parts and viewing private areas may be considered normal sexual behavior. The issue faced by school administrators and attorneys who litigate claims of child-on-child sexual abuse involving young children is whether touching falls under normative or problematic child sexual behavior.
School districts have a responsibility to provide child-abuse detection and prevention training to administrators, teachers, and other staff. Clear school policies and procedures for staff to follow are imperative for recognizing whether behaviors between young students are normal or considered sexual abuse. Immediate and effective school follow-up and response to any complaints, knowledge, or observations of sexual interactions between young children is a way for school professionals and educators to meet their Title IX and mandatory-reporting obligations and allows for the provision of appropriate instruction of students who are exploring their sexuality.
Within the fields of early education and child development, it is commonly accepted that certain sexual behaviors among young children are normal. Young children are curious about what other bodies look like and want to know why girls' and boys' bodies are different. Behavior among young children becomes problematic when a child displays knowledge of sexual behavior beyond his or her age and developmental level, when there is a pattern of sexual behavior that does not change after correction by adults, and when sexual behavior interferes with the child's own work or disturbs other students. Problematic sexual behavior may be a result of what a student has experienced or witnessed. Some children who have been sexually abused by an older child or adult may engage in aggressive and bullying behavior in a sexual context.
School personnel who become aware of inappropriate behavior need to respond immediately and work with therapists and other professionals to protect children in their care. The first step is to follow up on every incident and determine whether the behavior is normal - or an indicator of a more serious problem warranting mandatory reporting and requiring a Title IX investigation and remedial action.
According to the American Academy of Pediatrics (AAP), more than 50% of children will engage in some type of sexual behavior before their 13th birthday, and all children involved in such activity need assistance and guidance from parents, schools, and healthcare professionals. The AAP distinguishes between normal and abnormal sexual behaviors, as follows:
Normal and common behaviors include:
Abnormal behaviors include:
The U.S. Department of Education Office of Civil Rights (OCR) publishes guidelines for the practical application of Title IX requirements in educational settings. These guidelines include information for school districts about the need for appropriate grievance procedures, policies, staff training, and a Title IX coordinator, as well as state and local requirements for mandatory reporting. OCR recognizes that not all behavior with sexual connotations constitutes sexual harassment. According to OCR guidance, a kindergarten student kissing another student on the cheek would not rise to the level of sexual abuse and/or harassment. However, abnormal sexual acts, such as digital penetration, would be considered peer-on-peer sexual abuse and/or harassment.
OCR's 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties clearly indicates that schools should consider common sense in their response to allegations of sexual harassment. In determining whether an act of alleged harassment is actionable, schools should consider the circumstances, expectations, and relationships. In a 2017 Question & Answer document regarding sexual misconduct, OCR indicated that a school must take action when it knows or reasonably should have known of an incident of sexual misconduct. Appropriate responses to an allegation of inappropriate peer-on-peer touching include:
Schools have a higher standard of care for students with disabilities. Students with disabilities may have difficulty identifying sexual abuse or reporting instances of inappropriate touching. Some may not realize how their own behaviors affect others. As determined by their Individualized Education Plan (IEP), these children may need extra supervision, such as a one-to-one aide. Extra or precautionary supervision may be needed to ensure that a student is not placed in a situation or area, such as in a secluded area, bathroom, or back of a school bus, in which another child may take advantage of the student's vulnerability.
Students with disabilities may require extra assistance by trained psychologists or similar professionals in helping them identify what occurred and with whom. Those with speech and language impairments may require assistance with describing an incident through drawings and pictures. Students with disabilities who have been sexually abused may require specialized training to teach them what is appropriate and not appropriate touching.
Dr. Edward Dragan, provides education expert consultation for high-profile and complicated cases. As an educator and administrator, he has more than 35 years' experience as a teacher, principal, superintendent and director of special education. He also has served as a state department of education official.
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