Zero tolerance for victimization of students: the implications of House Bill 267 on juvenile offenders.

In an effort to protect school-aged victims of crime, the Florida Legislature recently passed House Bill 267. Codified as F.S. [section] 232.265 (2001), effective October 1, 2001, the bill in essence mandates that Florida's public school districts adopt a zero tolerance for victimization of students. Consequently, the bill is designed to eliminate contact between a violent offender and his or her victim or the sibling of the victim in an effort to protect the victim of any violent crime from any further victimization.

The bill was born out of concerns that the state was not doing enough to enforce the constitutional guarantees of a safe school environment. The Florida Constitution provides in pertinent part that, "It is ... a paramount duty of the state to make adequate provisions for the education of all children residing within its borders. Adequate provisions shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools that allows students to obtain a high quality education. (1)

It has been reported that statewide 6,213 children were sexually assaulted by other children from July 1, 1988 to June 1999. During the 1998-99 school year, 159 rapes and 2,830 incidents of sexual harassment were reported to schools across Florida. (2) One mental health counselor has opined that forcing a child to attend the same school or ride the same school bus as his or her sex offender is tantamount to asking rape victims to go home with their rapist. (3)

The bill's sponsors alluded to actual cases the bill is intended to address. (4) Specifically, in one school in northern Florida, a teen was required to ride the same school bus every day with her rapist. In another case, a high school freshman was forced to confront her attacker every day in the school lunchroom (5) Such contact, it is argued, serves to perpetuate victimization by forcing the violated child to repeatedly relive the incident.

In a nutshell, the bill prohibits any person who is attending public schools and who has committed one of the offenses listed below, before, or at the time of adjudication, withholding of adjudication or pleas, from attending the same school or riding the same school bus as the victim or the victim's siblings. The qualifying felonies are homicide, assault, battery, culpable negligence, kidnaping, false imprisonment, luring or enticing a child and custody offenses, sexual battery, lewdness and indecent exposure, child abuse, robbery by sudden snatching, car jacking, and home-invasion robbery.

Further bolstering the effectiveness of the bill is the ability of judges to enter "no-contact orders" upon finding that a juvenile has committed a delinquent act, regardless of offense. Prior to disposition, the court shall, on its own motion or upon the request of any party or any parent or legal guardian of the victim, determine whether it is appropriate to enter a no-contact order in favor of the victim or the sibling of the victim. Clearly, the bill does afford the judiciary some discretion as to whether a no-contact order is appropriate, not to mention the fact that no-contact orders are not limited to the enumerated offenses outlined in F.S. [section] 232.265.

It is important to note that the Department of Juvenile Justice (DJJ) has the task of notifying the appropriate school district of the adjudication or plea and whether the offender is prohibited from attending that school or riding the same school bus when the victim or a sibling of the victim is attending the same school or riding the same school bus. Such notification is to occur on or before the time the child is adjudicated, enters a plea, or has adjudication withheld. Consequently, DJJ, school districts, and the courts will be working ever more closely together.

If appropriate, and acceptable to the victim and the victim's parent or legal guardian, the court may reflect in the written disposition order that the victim or the victim's parent stated in writing or in open court that he or she did not object to the offender being permitted to attend the same school or ride on the same school bus as the victim or sibling of the victim.

Implications for the Defense Bar

Unlike adults charged with crimes of violence, cases involving juvenile-on-juvenile battery often are not as clear-cut or easy to sort out. This is especially true when it comes to accusations of simple battery. When is a school yard shoving match nothing more than it appears on its face? Clearly, the defense attorney will have the task of sorting out fact from fiction. Further, she or he will have the additional burden of protecting the child's right to a quality education. This task is especially arduous in Florida's more rural, isolated counties where the luxury of school choice is nonexistent. Who but the defense attorney will step in to ensure that, in the school's quest to protect the alleged victim, the accused's educational needs are not ignored?

Implications for Schools

As a result of the passage of the bill, each school district is required to exercise due diligence to ensure the protection of a victim from further victimization. Once notified by DJJ that a child may not attend the same school attended by a victim or sibling of the victim, or ride the same school bus on which the victim or a sibling of the victim is riding, the school district must take appropriate action in consonance with this section.

The offender may attend another school within the district, or, if acceptable to another school district, be permitted to attend a school in a different district. If neither of the above options are available to the school, the school has an absolute duty to take every reasonable precaution to ensure the victim does not come into contact with the offender while on school grounds or on school transportation. Such precautions may include subjecting the offender to in-school suspensions or rearranging class schedules, lunch, recess, and related activities of both victim and offender to ensure schedules do not coincide.

Failure of the school district, and the affected principal specifically, to fully comply with the bill's mandates will render the affected principal ineligible for any portion of the performance pay policy incentive under F.S. [section] 230.23(5)(C). (6) Consequently, schools are well advised to make full and effective use of the provisions of newly created F.S. [section] 232.265.

It is interesting to note that, unlike newly created [section] 232.265 which requires the offender to be adjudicated guilty, delinquent, or have adjudication withheld for any one of a series of felonies, Florida law empowers principals to suspend students who are merely formally charged with committing a felony or a delinquent act which would be a felony if committed by an adult. Thus, victimized children enjoy some measure of protection from their tormentors while charges are pending.

The preponderant concern expressed by school districts as a result of this new law appears to be fiscal stress, logistics, and the practical effects of the law. Rural school district personnel have expressed concern that the lack of alternative schools results in a logistical nightmare in terms of adequately safeguarding crime victims. Clearly, some innovative student management is in order lest the affected principal suffer various sanctions that could directly impact upon his or her personal fiscal interests.

Implications for Parents and Offenders

The offender, or the parents or legal guardians of offending students who are juveniles, is responsible for both the costs inherent in alternative transportation as well as arranging for transportation associated with or required by the attendance of the offender in another school. However, the offender, parents, or legal guardian of the offender will not be held responsible for existing modes of transportation available to the offender at no additional costs to the school district.

Summary

Overall, the implications of this new legislation are profound. DJJ is now tasked with notifying school districts of qualifying incidents in a timely manner--a burden the fiscally strapped agency is ill equipped to assume. School districts, already facing a shortage of teachers let alone their own fiscal woes, are now required to take immediate and decisive steps to ensure that the victim and offender remain separated at all times. Parents of juvenile offenders are required to suffer the consequences of their child's actions both fiscally and logistically. Offenders, precluded from attending schools of their choice, or at a minimum facing rigid course and free-time schedules, will look to their legal counsel for redress. Regardless of how the law regarding victimization of students is interpreted by the courts, one thing rings true: The inconvenience and costs to offenders found to have committed acts of violence just moved up a notch.

(1) FLA. CONST. art. IX, [section] 1.

(2) HB267, 2002 Leg. Sess.:Staff Comments, quoting Marrero, When you have to go to school with your rapist, THE FLORIDA TIMES UNION, November 30, 2001, at 8, col. 6.

(3) Marrero, When you have to go to school with your rapist, The Florida Times Union, November 30, 2001, at 8, col. 6.

(4) The bill's primary sponsors are state Representatives Dick Kravitz, R-Orange Park, and Don Davis, R-Jacksonville.

(5) HB267, 2002 Leg. Sess.: Staff Comments, quoting Marrero, When you have to go to school with your rapist, THE FLORIDA TIMES UNION, November 30, 2001, at 8, col. 6.

(6) FLA. STAT. [section] 230.23(5)(C) (2000), provides salary incentives for teachers who demonstrate improvements in performance and training.

Joseph G. Jarret is an assistant Polk County attorney and certified circuit civil mediator and arbitrator. He is the past president of the Manatee and Hardee bar associations and is a former U. S. Army combat arms officer. He holds a B.S. from Troy State University (W. Germany Campus), a master of public administration from Central Michigan University, a J.D. from Stetson University, and a graduate certificate in public management from the University of South Florida.

This column is submitted on behalf of the Criminal Law Section, Judge Dedee S. Costello, chair, and Georgina Jimenez-Orosa, editor.