Massachusetts lags in protecting students from sex abuse

In Maine, high school employees can be charged with sexual assault if they have sexual contact with any student at the school. The crime requires registration as a sex offender.

In North Carolina, a high school employee can be charged with a felony if they are at least four years older and have sexual contact with a student above the age of consent. School leaders who fail to report the misconduct can also be charged with a felony.

In Washington state, a high school employee can be guilty of sexual misconduct with a minor in the first degree for having sexual contact with a student at the school. The crime requires registration as a sex offender.

But in Massachusetts, a high school employee who engages in sexual relations with a student at school would not face criminal charges as long as the student is at least 16 years of age and says they agreed to it.

That’s because 16 is the age of consent in Massachusetts, and the state lacks specific statutes criminalizing sexual misconduct by staff with students 16 or older — an age of most high school students turn during their sophomore year.

Last week, The Light reported allegations of sexual misconduct by a school employee with a student, Jacob Pothier, at the Greater New Bedford Regional Vocational Technical High School.

Pothier died in January in a car crash, just weeks after turning 18. The former employee, 45-year-old Kathleen Martins, the other person in the vehicle, sustained injuries in the crash.

The attorney for Pothier’s estate, in a letter to Voc-Tech last month, alleged the district and its administrators failed to protect Pothier from “an inappropriate relationship, including a sexual relationship,” with Martins, a former school security guard. Pothier’s mother said she thinks he was 16, the age of consent, and a freshman when the relationship began.

Martins, when she reached for comment last week, said she had nothing to say. Martins and her legal guardians did not respond to several earlier questions and requests for comment from The Light. Per February court filings, she was placed under a legal guardianship with her spouse and sister, with documents citing a traumatic brain injury from the crash as limiting her decision-making.

Legislation that could have protected Pothier has been stuck in limbo on Beacon Hill for more than a decade.

“Nobody can touch it because the age of consent is 16?” Stacey Pothier, Jacob’s mother, said. “There’s a problem if there’s a relationship going on with a staff member and a student.”

Bills have made it to various committees, but never to passage.

This session’s bill, “An Act relative to sexual assaults by adults in positions of authority or trust,” by state Sen. Joan Lovely (D-Salem), proposes a charge of indecent assault and battery and imprisonment for those found guilty of engaging in a relationship with a student under 18 years old.

“Teachers, coaches, tutors, mentors, or anyone else in the public and private school setting who has any kind of authority over a child should strive to protect them,” Sen said. Lovely in a statement to The Light. “And those who would choose to leverage their relationship to engage in a sexual relationship should face the consequences, regardless of whether the individual is over the age of consent.”

Carmen Durso, a Massachusetts attorney, described Lovely’s bill as effectively changing the age of consent when it regards students and school staff.

“In a prosecution under this section, a child under the age of 18 shall be deemed incapable of consenting to any conduct of the defendant for which such defendant is being prosecuted,” reads Lovely’s bill. “It shall not be a defense to a prosecution under this section that the position of trust, authority or supervision over a child has ended, if the child is under the age of 18 at the time of the offense.”

Steven Wojnar, retired police chief for the town of Dudley, began advocating for such legislation after dealing with a case in 2005 involving a female teacher and a male student.

“We all looked at it and said this should certainly be wrong, but when we looked at the laws, the laws didn’t cover it,” he said. “Technically, you’re considered capable of giving consent.”

Child advocates say school staff use the age of consent as a loophole to avoid charges after engaging in sexual relationships with students.

“I get calls on cases in which a teacher has been abusing a student … frequently, the perpetrator gets the student to say that they were over 16 when the sexual conduct started … or sometimes the perpetrator starts a relationship, builds the relationship, maybe does some minor things, and the police can’t do anything,” Durso said. “The criminal statutes are very, very strict.”

Researchers found that as of 2020, 21 states had not enacted specific laws to address educator sexual misconduct. Massachusetts is in that group.

“More often than not, age of consent is frequently an issue in educator sexual misconduct cases,” the researchers wrote in a 2020 journal article, “specifically those cases involving high school students.”

“Teachers and school staff are assumed to have power over students, no matter what the age, and therefore the ability of the relatively powerless student to give consent is assumed to be impaired in such relationships,” the researchers wrote, explaining some states’ specific laws on educator sexual misconduct.

Researchers in a 2022 report found nearly 12% of K-12 students they surveyed experienced educator sexual misconduct, which includes both verbal and physical behavior. However, experts believe that number could be much higher, stating many cases go unreported and data from schools remains hard to access.

Students who experience misconduct face short-term and long-term psychological impacts, research shows. This includes feelings of shame, doubt, depression, fear and decreased trust in authority figures.

“Without Massachusetts taking a stand on this, we’ll continue to see more children victimized by child sexual abuse,” said Jetta Bernier, executive director of child advocacy organization MassKids. “Some have to repeat grades, some don’t graduate … This has an effect beyond the borders of school walls.”

Legislators and advocates in Massachusetts have also been trying to pass bills that would mandate training and education of school staff on child sexual abuse awareness and prevention, as well as strict screening during hiring.

Schools would have to adopt a standardized application that asks prospective employees to disclose any history of sexual abuse or misconduct. It would also require the school to contact former employers to learn any relevant information about misconduct.

If passed, these bills would also protect schools from civil liability for sharing information and employee’s history, and prohibit confidentiality agreements with employees.

“All of these bills are kind of tied up, and we’ve become quite frustrated, as child advocates and parents, that the legislation has continued to stall,” Bernier said. “Every employee in a school must be educated about child sexual abuse and how to prevent it.”

“Back in 2015, when these bills were proposed, Massachusetts would have been at the front of the line,” Bernier said. “We would have been the head of the class in terms of comprehensive child abuse prevention legislation. Over the past 10 years, we’ve seen state after state adopt these bills, these policies… and Massachusetts still lags behind.”

Durso echoed this sentiment.

“You’d think the sophisticated people in Massachusetts would figure it out,” he said. “(Massachusetts) simply (doesn’t) have the protection that they should have.”

House Speaker Rep. Ron Mariano and Senate President Karen Spilka did not respond to interview requests or provide comment on the package of bills.

Ana Vivas, Mariano’s press secretary, said by email in June that the Judiciary Committee continues to evaluate some of the bills.

Bernier said several of these bills aimed at protecting children in school settings have either died this legislative session, or are pending before committees: the Senate Ways and Means Committee, and the joint Judiciary Committee. Legislators on these committees have until July 31 to take action on the bills or let them die.

From August through the end of this year, the Legislature will be in informal session, when bills can only pass unanimously.

A spokesperson for state Sen. Michael Rodrigues, a chairman of the Senate Ways and Means Committee, said the office declines to comment.

A spokesperson for state Rep. Michael Day, a chair of the Judiciary Committee, said by email in June that the bills remain under consideration and that as chairman, Day does not comment on legislation that is pending before the committee.

Jamie Nathan, legislative director for Lovely’s office, said that two of the senator’s bills, on criminalizing sexual misconduct by school staff with students and on enhancing hiring practices to prevent sexual abuse, are under review by the Judiciary Committee.

“We agree this is a good idea, let’s do it and fix it, but nothing gets done,” Wojnar, the retired police chief, said. “And then we’re still sitting here 16, 17 years later, talking about the same issue and how many other people have been impacted. We have to close that loophole. These types of relationships shouldn’t happen.”

Email Anastasia E. Lennon at [email protected].

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