In the three years since Pennsylvania adopted a 10th exception to the Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S.A. Section 8522(b)(10), which recognizes claims of "sexual abuse" as an exclusion to the sovereign immunity typically afforded to political subdivisions in negligence cases, courts have seen an increase in litigation involving sexual abuse of school students. In two recent instances of first impression, one federal judge opines on the factual allegations necessary for a student-plaintiff to survive a motion to dismiss state tort claims where he/she seeks damages from a school district and its administrators arising from sexual assault by a peer.

Under the "sexual abuse" exception, where a local government agency or its employees' negligent actions or omissions constitute a criminal offense under 42 Pa.C.S. Section 5551(7)— rape, sex trafficking, sexual servitude, sexual assault, institutional sexual assault, involuntary, and incest where the victim is under the age of 18, the injuries the plaintiff alleges may not be defended by sovereign immunity. "The intended purpose of this amendment to the PSTCA was to 'waive sovereign immunity for public entities guilty of covering up childhood sexual abuse.'" See Cunning v. West Chester University, 2021 U.S. Dist. LEXIS 35874, *6-7 (E.D. Pa. Feb. 25, 2021) (quoting PA. H.R. LEGIS. JOURNAL, 203rd Assy., Reg. Sess., at 510 (Apr. 10, 2019)). In his three opinions in two different cases, Chief Judge Matthew W. Brann for the U.S. District Court for the Middle District of Pennsylvania found that negligence sexual abuse claims against political subdivisions arising from a child's abuse by a minor student will not survive unless the plaintiff alleges penetration by his/her assailant.