MANDATORY REPORTING OF CHILDHOOD SEXUAL ABUSE: THE NEED FOR UNIFORMITY

In response to the public hue and cry following the disclosure of the unconscionable crimes against children and cover-up that occurred at Penn State, many state legislatures have considered reforms that would strenghen and expand their laws mandating the reporting of suspected child sex abuse (“CSA”). While this is a positive step in the fight against CSA, the result of these efforts leaves in place a patchwork of state laws that vary widely in their efficacy. No two states have identical laws and there is no overarching federal CSA reporting statute yet on the books. Thus, the need for uniformity of the law in this area is clear and present. But perhaps change is coming. Some recent developments in the law – in particular, Florida’s enactment of the toughest CSA reporting requirements in the country — provide reason to hope that the federal and state governments will agree ultimately on a model reporting law to be applied in all jurisdictions.

As we approach the end of 2012, a glimpse of the current state of the law informs the path ahead. Every state has a CSA reporting statute that defines the conduct that constitutes such abuse in that particular state and that identifies those persons who are mandated to report it. All states require reporting by certain categories of individuals, typically those who have regular contact with children, e.g., teachers and other school personnel; physicians, nurses, and other medical/ mental health professionals; social workers; and child care providers. Thirty-two states require only such designated persons to report, while 18 states mandate that all adults report suspected CSA to the proper authorities

The level of knowledge, or suspicion, of abuse that triggers these mandatory reporting requirements varies. Some states require reporting when the reporter “suspects or has reasons to believe” that a child has been abused. But other states mandate reporting only when the reporter “has knowledge of, or observes, a child being subjected to conditions that would reasonably result in harm to the child.” Because there is a wide variance between these standards, what constitutes a reporting requirement in one jurisdiction may not be considered mandatorily reportable in another. State laws also vary as to the required recipients of CSA reports. In some jurisdictions, reports must be made to workplace supervisors only. The Penn State cases tragically demonstrate the systemic flaws in such in-house only reporting requirements.

Some states have exceptions to mandatory reporting requirements for “privileged communications” between physicians-patients, attorneys-clients, and clergy-penitents, while other jurisdictions do not permit such privileges to constitute grounds for failing to report. In most states, reports may be made anonymously but some 18 states require mandatory reporters to provide their names and contact information. All states have laws that maintain the confidentiality of the reporter’s identity but disclosure of the reporter’s identity is allowed in some jurisdictions under specific circumstances or to specific authorities.

In most states, the failure by a mandated reporter to report CSA is a criminal offense, albeit a relatively minor one classified as a misdemeanor. However, a handful of states upgrade such misdemeanors to felonies for failing to report comparatively serious abuse situations or if the violation is a second or subsequent reporting offense. The Louisiana legislature recently passed a law making it a felony to witness the sexual abuse of a child and fail to report it to law enforcement. In contrast, a few states impose fines only for reporting violations. Only one state – Florida – makes any mandated reporting failure a serious felony, punishable by up to 15 years in prison and a $1 million fine if the violator is a college or university.

Undoubtedly feeling the impact of the Penn State criminality, state lawmakers have proposed numerous changes to their CSA reporting laws. During 2012 alone, over 100 separate bills in 30 states were introduced in state legislatures addressing the mandatory reporting of CSA. The bills include those that add to the list of mandatory reporters higher education staff, administrators, and coaches (31 bills); require any person, rather than designated reporters, to report suspected abuse (10 bills); increase the penalties for failures to report (29 bills); require reporting directly to law enforcement (15 bills); mandate training/education in CSA prevention (14 bills); and provide reporters with workplace immunity (5 bills).

Moreover, some 13 states enacted new CSA reporting legislation this year. California, Georgia, Illinois, Louisiana, South Dakota, Vermont, Virginia, Washington, and West Virginia substantially expanded the categories of mandatory reporters to include, inter alia, higher education personnel, headmasters of independent schools, athletic coaches, commercial film processors, commercial computer technicians, nurses’ aides, child advocacy organizations, child welfare providers, and youth camp employees. The Delaware legislature simplified the mandatory reporting requirements for schools by mandating that any sexual offense involving a child be reported directly to law enforcement, while Iowa and Wisconsin now prohibit employers from taking retaliatory actions against any persons who make good faith reports of suspected abuse.

The recent actions by state legislatures address various aspects of the mandatory reporting issue but what is needed is an overarching law that encompasses all of the essential elements of reporting requirements and can be applied uniformly throughout the nation. Fortunately, there is one state law that can serve as a model for all other states to emulate. Effective October 1, 2012, Florida enacted the most comprehensive and toughest CSA reporting law in the country. The measure, dubbed “the Penn State law,” mandates that every person who knows or reasonably suspects a child is the victim of sexual abuse must immediately report that information to a state hotline. The hotline’s operators will be trained to obtain the relevant information and will immediately electronically transfer the reports to the appropriate law enforcement agency. The identities of the reporters are kept confidential and reporters are immune from any civil or criminal liability provided the report is made in good faith.

These provisions are necessary but not sufficient to ensure that the mandatory reporting requirements are effective. So Florida’s new law imposes stiff penalties on those who violate it – the failure to report suspected abuse constitutes a felony that carries a maximum prison sentence of 15 years and fines up to $5000. And if the violator is a college or university, the fines can be increased to $1 million for each incident. Thus, the sweeping provisions of the law combine mandatory reporting for all adults, confidential reporting, immunity for good faith reporting, and strong failure-to-report penalties.

So children in Florida are likely to be better protected but will other states follow suit? This is where Congress can play a decisive role. Under current federal law, there is mandatory reporting only of all “recent” cases of CSA by a parent or caretaker. Such cases must be reported to authorities in accordance with each state’s laws defining mandatory reporters. As discussed above, state laws vary dramatically as to categories of mandatory reporters and standards that trigger reporting requirements. In essence, federal law establishes a floor requirement as what must be reported under state law.

However, presently pending before Congress is a bill entitled, the “Speak Up To Protect Every Abused Kid Act,” which would expand the definition of child abuse to include acts by any individual and would require all adults to report suspected CSA. Congress should enact this provision and thereby require each state to certify that it has in place such universal mandatory reporting requirements. Furthermore, Congress has the power to provide financial incentives to the states to do the job right by adopting all of the necessary components of the recent Florida legislation.

On its face, the question of mandatory reporting of CSA is a legal one. But fundamentally, it is a moral issue. In recent times, it has become painfully apparent that too many people – including those in positions of authority – tend to turn a blind eye to suspected or even known abuse and often are afraid for one reason or another of the repercussions on themselves and/or their institutions of reporting it. Mandatory reporting by all adults helps protect our children and serves as a deterrent to those who would prey upon them. Reporting requirements shine a much-needed light on crimes against children that have far too long remained in the darkness. Laws mandating reporting will help flush out child predators and those who aid and abet them by covering up their despicable acts. But ultimately the responsibility to protect children falls on each one of us. Let no child be harmed on our watch.

Neil Jaffee, Legal Counsel, Vertigo Charitable Foundation, LLC

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