Ways to mitigate the tragic risk of molestation
By Mark Konchan, Vice President, Risk Management Services, Philadelphia Insurance Companies
Organizations of all kinds are increasingly exposed to liability from the tragic occurrence of abuse and molestation. Litigation and media attention are raising public awareness of these types of crimes. Mitigating the risk of liability begins with reducing the chance of abuse and molestation happening in the first place. Experience with various organizations has shown best practices and techniques that can make a difference, when they are implemented consistently.
The prevalence of abuse and molestation is shocking. Federal data show that these incidents are frighteningly common. According to the Centers for Disease Control and Prevention, 1 in 6 boys and 1 in 4 girls are sexually abused before age 18. In addition, 60% of perpetrators of child sexual abuse are known to the children but are not family members. Perpetrators may be, for example, care providers, family friends or neighbors.
Anecdotal evidence suggests that for the insurance industry, across the board, abuse liability claims are greater, more frequent and taking longer to settle. One reason for the increase in claim frequency and severity may be how often abuse and molestation and other forms of sexual misconduct are reported in the media.
News headlines are prompting changes in society and increasing attention to the duty of care. Social media have become important channels for amplifying accusations and allowing victims to share their experiences. The #MeToo movement, which originated following sexual harassment and assault allegations, has brought worldwide attention to sexual crimes, including abuse.
Over the past two decades, numerous accounts of sexual abuse have come to light, including:
- USA Gymnastics and Michigan State University. Former Olympic doctor and university trainer Dr. Larry Nassar was sentenced in December 2017 to 60 years in prison on charges of criminal sexual conduct. More than 150 victims came forward, accusing him of sexual abuse.
- The Roman Catholic Church. A 2002 report by the Boston Globe uncovered cases of child sexual abuse going back decades in the Boston archdiocese. The publicity has led to additional investigations and allegations against Catholic priests around the world, with lawsuits and resignations occurring up to the present day.
These kinds of cases often prompt legislators to action, which can create new obligations and liability exposures. Among recent developments, federal legislation in 2018 set a new standard in the duty of care for youth sports programs and a New York law taking effect in 2019, the Child Victims Act, raises the time bar for lawsuits alleging abuse.
Who’s exposed to liability
The types of organizations that have the greatest exposure to sexual abuse and molestation lawsuits are those providing services. These include, for example, social services and religious organizations, Boys & Girls Clubs, child care and day care centers. Such organizations vary, with some operating in a single location and others national in scope.
Scenarios that can lead to liability are also quite varied. Anywhere care providers or staff interact with vulnerable segments — children; adolescents and adults with physical and/or developmental disabilities; and the elderly — creates the potential for abuse and molestation. Likewise, these incidents can occur onsite or offsite.
Mitigating the risk
Background checks of staff and volunteers may seem to be an obvious tool in preventing abuse and molestation. Indeed, background screening is widely conducted during the hiring process and, for certain jobs, is mandated by law. What organizations need to realize, however, is that while screening is important, it has limitations.
For example, lookback periods in background checks are restricted by certain laws, such as the Fair Credit Reporting Act, which removes felony convictions from background reports seven years after a prisoner’s release, and California’s ban-the-box law, which prohibits many employers from asking job applicants about their criminal conviction histories until after making a conditional offer of employment. Another unfortunate fact is the low reporting and prosecution rates for sexual offenses, which means relatively few show up in criminal background checks. In addition, clerical errors are common in background data.
Best practices that employers should adopt include:
- Skillful screening and human resources interviews. Employers seeking to identify applicants with criminal convictions and/or tendencies should combine third-party data with first-party screening techniques. For example, HR interviewing techniques can pose specific questions that can identify red flags common among sexual offenders, such as gaps in application information, unexplained employment histories and use of aliases.
- Controls and supervision. Risk-conscious organizations mandate and enforce procedures for interacting with children and other vulnerable individuals. A good practice is to prohibit individual care providers or staff from being alone with the organization’s clients.
- Training and monitoring. Turnover of staff and volunteers is common at many service organizations. Therefore, it can be easy for gaps in training and monitoring to occur. Periodic training is a best practice for all employees and volunteers.
Philadelphia Insurance Companies believes strongly in the power of training, and we offer complimentary periodic seminars and online learning programs, along with other risk management resources — including onsite consultative service from our risk management staff — to help policyholders ensure safety and reduce risk. Keeping everyone safe from abuse or molestation is a goal we share with all of our customers.
To learn more about managing risk and resources to prevent abuse and molestation, please visit www.phly.com/rms.
Mark Konchan is Vice President, Risk Management Services, at Philadelphia Insurance Companies.
The information and suggestions presented by Philadelphia Indemnity Insurance Company is for your consideration in your loss prevention efforts. They are not intended to be complete or definitive in identifying all hazards associated with your business, preventing workplace accidents, or complying with any safety related, or other laws or regulations. You are encouraged to alter them to fit the specific hazards of your business and to have your legal counsel review all of your plans and company policies.