Introduction

Today's teachers play a very important role of parental substitutes while children are at school, and are provided with authority and have a strong influence over their students. Unfortunately, some who enter the profession abuse their station and use their position as a means of sexual gratification through their students. The purpose of this paper will be to examine sexual abuse in schools and to decide who is legally accountable when it occurs. The commonality of this problem will also be discussed, as well as steps which have been made to reduce the problem.

Sexual Abuse Defined

Before going any further into the subject, sexual abuse must be defined. For the purpose of this paper we will look to the Criminal Code of Canada. Sections 151, 152, and 153 of the Criminal Code clearly outline what constitutes sexual abuse. A brief summary of the aforementioned sections will be outlined for those not familiar with the code. A person is guilty of sexual abuse if, for any sexual reason, that person makes contact with a person under the age of fourteen. Also, a person is guilty of sexual abuse if they invite or coerce a person under the age of fourteen to touch another person in a sexual manner. Finally, any person who is in a position of authority, trust, or one whom the young person is dependent on, is guilty of sexual abuse if they make, invite or coerce sexual contact from a young person (young person being one between the ages of fourteen and eighteen). Sections 151, 152, and 153 have been reproduced in Appendix A. As with any other criminal offence, if the court is to prove guilt, two elements are necessary, the actus reus and the mens rea. The first term means that the court must prove that the actual offence has taken place. The second term refers to the intent of the accused; the court must prove that the accused intended to commit the offence (Mackay & Sutherland, p. 23). If proof of both the act and intent are present, the accused is guilty of the offence. Each and every time a teacher touches a student, they are committing the actus reus of sexual abuse. The actual committal of a criminal offense, however, lies in the intent. For an accused teacher to be convicted, proof of intent must also be present (Mackay & Sutherland, 23).

Who is Responsible?

If and when a teacher is convicted of sexual abuse it is important to discern responsibility for the offence. Depending on the specifics of the case, the teacher's employer may also be accountable for the actions of the convicted. If this occurs, the liability against the teacher's employer stems from the doctrine of vicarious liability. The origin of vicarious liability can be found in the law of master and servant. Previously, an employer was only liable for the actions of an employee if the employee was acting on the orders of the employer. Presently, the doctrine of vicarious liability has been expanded to include liability for all torts committed by an employee acting in the course of employment. An employee's course of employment is very difficult to define, and therefore it is perhaps best defined by examining what falls outside of the course of employment. If an employee is "acting as a stranger in respect to [their] employer," we can say that the employee is acting outside the course of employment. Such being the case, the employer is not liable for the employees actions (Mackay and Sutherland, 7).

The Salmond Test

As mentioned above, an employer is not automatically liable for the actions of an employee. To test for vicarious liability, the court may apply the common law known as the Salmond test. The test simply involves the examination of the evidence with respect to the following guidelines:

An employee's wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes ??although improper modes ?? of doing what has been authorized (Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591 at 599 (P.C.))

In other words, if the wrongful act is a mode of performing the employee's prescribed duties, the employer is also liable for the act.

Supreme Court Rulings

Two recent Supreme Court cases may shed a little light on the doctrine of vicarious liability. Both cases involve individuals who have been convicted of sexual abuse and the vicarious liability of their employers. While the individuals in these cases were not teachers, they did have very similar working conditions and responsibilities.

Bazley v. Curry

To summarize the first case, Bazley v. Curry, Curry, a pedophile, was hired by a Vancouver Children's Foundation. The Foundation was unaware that Curry was a pedophile; they checked his background and were told that he was a suitable employee. Curry was given the responsibility of bathing and tucking in Patrick Bazley, a young and emotionally vulnerable boy. Slowly, as time passed, Curry began to pervert his duties. "Bathing became sexual exploration; tucking in in a darkened room became sexual abuse" (Bazley v. Curry, [1999] 2 S.C.R. 534).

Curry was subsequently convicted of sexual abuse and Bazley sued the Foundation for compensation for the injuries he suffered while in its care. To make its decision of whether or not the Foundation was vicariously liable, the court applied the Salmond test. The result of the test was that the Foundation was held liable for damages suffered by Bazley. While the Foundation did not actually commit the abuse, Curry's actions did occur while performing a mode of what he had been authorized and directed to do. The Foundation had charged him with the duties of bathing and tucking in the child. Unfortunately, Curry's performance of those tasks were twisted to suit his own perverse desires (Bazley v. Curry, [1999] 2 S.C.R. 534).

Jacobi v. Griffiths

The second case to be examined is that of Jacobi v. Griffiths. In this case, Griffiths was employed by the Vernon Boys' and Girls' Club as a program director. Griffiths duties were to supervise volunteer staff and organize recreational activities and the occasional outing. He was also encouraged to form friendships and a positive rapport with the children at the Club. His relationship with the children in this case resulted in one incident of sexual assault against the male victim and several incidents of assault, culminating in sexual intercourse, with the female victim. Griffiths pled guilty to 14 counts of sexual assault involving the plaintiffs and other children. The plaintiffs believed the Club to be vicariously liable and sought civil damages.

The plaintiffs met and developed relationships with Griffiths at the Club. In the case of the male victim, while at the Club, Griffiths invited him to his home and engaged him in a conversation of a sexual nature which developed into an assault. In the case of the female victim, after working with her for a period of time, Griffiths assaulted her on several different occasions. One of which occurred on board a van ride to a Club?related sporting event (Jacobi v. Griffiths, [1999] S.C.R.).

As with the previous case, the question here is: Can the Club be held accountable for the actions of an employee? In this case, the Supreme Court of Canada ruled that the Club was not vicariously liable. While the club did provide the initial contact between Griffiths and the children, it was not involved in the after hours meetings at Griffiths' home. Also, although Griffiths was asked to get close to and build rapport with the students, he was asked to do this at the club with all the students as a group, not with individuals at home. Griffith worked on his own accord to build his relationships with the victims. If the Salmond test is applied to this case, it can be seen that Griffith was working to further his own interests and his actions had no connection with the Vernon Boys' and Girls' Club.

By examining the above cases, it can be seen that discerning vicarious liability is not an easy task. Both cases appear to be very similar, yet have very different outcomes. Luckily, two very precise pieces of criteria have been outlined in the Salmond test. The test provides clear guidelines as to what does and does not constitute vicarious liability. We know that the employer of a person who commits an offence by instruction of employer or while performing a mode of duty as instructed is vicariously liable. The employer, however, of one who commits an offence completely of their accord and completely independent of the employer is not vicariously liable.

The question: Who is accountable? may only be answered by looking into the specifics of a particular case.

Sexual Abuse: How Rampant?

This section of the paper will examine how rampant sexual abuse in schools is. I will begin by saying that while perusing Supreme Court records, instances of sexual abuse in schools were few and far between. While such instances are not commonplace, they do exist, and although they do not occur every day, they are a problem when they do surface.

While both the actus reus and mens rea are necessary to convict an offender, Parliament has decided that the levels of sexual abuse in Canada are above acceptance. Because of this, amendments have been made to the Criminal Code so that a conviction may be obtained solely on the testimony of a child. Previously, a witness or other physical evidence was necessary for conviction; this is no longer the case (Mackay & Sutherland, 23). Also, schools are more likely to be found vicariously liable. The result of this has been more vigorous screening and observation of teachers. If pedophiles can be kept out of schools, the battle has been won.

Unfortunately, these measures are not infallible and pedophiles do find their way into our schools. Out of hundreds of teacher pedophiles who have been interviewed, most admitted that teaching was chosen as a career through which they could further their pedophilic needs. Teachers are granted a great amount of authority and have a strong influence over their students. These points alone would benefit a pedophile seeking prey, but teachers who are pedophiles also have access to personal information and documents which help them to choose safer victims (Prendergast, 61). If the problem of sexual abuse in our schools is to be quashed, the sexual predators must not be allowed to enter. Tougher laws and more vigorous screening is the first step to keeping them out.

Conclusion

Over the course of this paper we have come to a clear understanding of what constitutes sexual abuse, and also of where the accountability lies when sexual abuse occurs in a school setting. The doctrine of vicarious liability has also been examined and a very clear set of guidelines, the Salmond test, have been provided for discerning liability. We have also examined the rampancy of sexual abuse in our schools and discussed measures which have been taken to eliminate the presence of pedophiles in our schools. Many pedophiles actively worm their way into schools and only stricter screening and psychological testing will catch them before they find the holes (Prendergast, 61). We have said that sexual abuse in schools is not common, but it is not non-existent, and it is therefore a problem. Perhaps a time will come in the future when honest and true history teachers relate a time when students feared sexual predation at school, a topic which I hope many of us new teachers witness.

Criminal Code of Canada: Sec 151, 152, and 153

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable by summary conviction.

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable by summary conviction.

153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
(b) for a sexual purpose, invites, counsels, or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the young person,

Bazley v. Curry, [1999] 2 S.C.R. 534

Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591 at 599 (P.C.)

Criminal Code of Canada, Quoted in Mackay & Sutherland, Teachers and the Law: A Practical Guide for Educators. Toronto, ON: Emond Montgomery Publications Ltd. (1992).

Jacobi v. Griffiths, [1999] S.C.R.

Mackay, A. & Sutherland, L. Teachers and the Law: A Practical Guide for Educators. Toronto, ON: Emond Montgomery Publications Ltd. (1992).

Prendergast, W. Sexual Abuse of Children and Adolescents. New York, NY: Continuum Publishing Company. (1996).