The criminal investigation launched this week into sexual misconduct allegations at St. Paul’s School is a rare step that might not result in criminal charges but could force the institution to change its culture, legal specialists said Friday.
The inquiry would aim to answer a central question that has been raised by the allegations — whether the elite boarding school in Concord, N.H., tried to protect its own reputation at the expense of vulnerable students.
“The key here is to what extent the school had knowledge that the ongoing environment or culture at the school was producing these kinds of problems,” said Albert E. Scherr, a University of New Hampshire law professor. “On the surface, it’s not completely clear whether there is criminal liability, so it’s to [prosecutors’] credit to take the risk.”
In announcing the investigation Thursday, the New Hampshire attorney general’s office said it was prompted by the release in May of a report that found 13 former faculty and staff engaged in sexual misconduct with students over four decades, and that faulted administrators for ignoring and even concealing the widespread abuse.
Officials also cited the 2015 case of a senior accused of raping a 15-year-old classmate as part of a rite of sexual conquest called “Senior Salute” and the disclosure in June of another game of sexual conquest in which boys competed to get their names on a crown.
Investigators said they will initially focus on whether St. Paul’s broke two state laws. One prohibits endangering the welfare of a child by failing a “duty of care” for that child. The other involves the obstruction of criminal investigations through intimidation or other means.
“The specter of a criminal investigation is different than the specter of being sued,” Scherr said. “It ratchets it up another level, and indicates a seriousness on the part of New Hampshire.”
Although it is rare, schools and companies can face criminal charges if their employees commit crimes with the partial intent to further the interests of the institution itself, said Miriam Baer, a Brooklyn Law school professor who specializes in corporate criminal liability.
“It draws a lot of controversy because it does arguably hurt people who had nothing to do with the wrongdoing,” she said. “You could be hurting employees or students or alums who had nothing to do with this, if you criminally indict.”
More than a decade ago, the New Hampshire attorney general launched a similar criminal investigation into allegations that the Roman Catholic diocese of Manchester covered up the sexual abuse of children by priests. The diocese settled the case by agreeing to regular audits and programming to protect children.
Criminal charges are more typically brought against companies. For example, prosecutors recently secured criminal convictions against a Wall Street hedge fund that engaged in insider trading, and a California gas company that obstructed a federal investigation into a fatal pipeline explosion.
“You have to show a pattern of conduct across not just one leader, but a series of leaders,” said Eric MacLeish, a Cambridge lawyer, who is representing several St. Paul’s alumni who are considering legal action against the school, and has represented hundreds of sexual abuse victims in other cases. “So there’s precedent for this, but it’s certainly unusual.”
While it’s important to hold individuals responsible for criminal acts, prosecutors recognize “the institution in the best position to deter the crimes and protect the students is the school,” said Jennifer H. Arlen, a New York University law professor. But, she said, “You have to be very careful you have a situation where the school really knew and, instead of doing the right thing, covered it up.”
Because a school cannot be threatened with jail time, the investigation could result in a settlement that forces St. Paul’s to adopt changes, such as new training requirements or a hotline to report suspected misconduct, Baer said.
‘The specter of a criminal investigation is different than the specter of being sued.’
Typically, companies that face criminal investigations “avoid the actual filing of charges by bending over backward and being helpful to prosecutors and promising to change,” Baer said.
St. Paul’s officials have said the school has, for more than a decade, trained teachers on appropriate boundaries and educated students to alert adults if they see misconduct.
After St. Paul’s released the report in May that documented four decades of misconduct by former faculty and staff, officials said none of the administrators who were cited for failing to respond appropriately are still working at the school.
“We have been in close contact with local law enforcement regarding recent incidents of concern, and we will continue to fully cooperate with any inquiries we receive,’’ St. Paul’s rector, Michael G. Hirschfeld, said in a statement Thursday. “We also intend to work closely with the attorney general’s office to answer any and all questions regarding the independent report issued last month.”
Legal observers said the investigation recalled a similar case in 2004, when the trustees of the elite Groton School, 40 miles northwest of Boston, pleaded guilty to a criminal misdemeanor for failing to report students’ sexual abuse allegations to the state, as required by law.
The school entered the plea on the day the case was scheduled to go to trial and was fined $1,250. Martha Coakley, who prosecuted the case as Middlesex district attorney, said Groton was charged because the decision was made “at the highest levels” not to file a child abuse report.
“Whether you’re a middle school in one town in Middlesex County or the Groton School in the northern part of the county, you have the same obligation to report,” Coakley said Friday. “And, clearly, the law still applies to all institutions.”
Scherr, the New Hampshire law professor, said the investigation into St. Paul’s could prompt other attorneys general to investigate allegations of sexual misconduct at other boarding schools.
A Globe Spotlight story last year reported on allegations of abuse by more than 200 victims at 67 private schools in New England.
Since then, Choate Rosemary Hall in Wallingford, Conn., St. George’s School in Middletown, R.I., and Phillips Exeter Academy, in Exeter, N.H., have released reports documenting multiple allegations of sexual misconduct by faculty and staff.Michael Levenson can be reached at firstname.lastname@example.org. Follow him on Twitter @mlevenson.