Mandatory Reporting of Child Abuse
Karen and all, here's what I dug up..there's a link in here for individual state statutes..mandatory reporting is primarily for professionals who work with and for kids(pediatricians, nurses, social workers, etc..but also mental health care workers(ie..if Foley tells his therapist in rehab, that person is bound to reporting it)..since Foley's is the first case of this kind that I know of..I dunno..my fear is that once the elections are over, people may want to not deal with it and he'll get minimal if any criminal punishment..it's appalling how many offenders get such weak sentences even if they do get found guilty, which is a struggle in of itself(talk generally)
Facts:
smith-lawfirm.com
All 50 states have passed some form of a mandatory child abuse and neglect reporting law in order to qualify for funding under the Child Abuse Prevention and Treatment Act (CAPTA)(Jan. 1996 version), 42 U.S.C. 5101, et seq.. The Act was originally passed in 1974, has been amended several times and was most recently amended and reauthorized on October 3, 1996, by the Child Abuse Prevention and Treatment and Adoption Act Amendments of 1996 (P.L. 104-235).
CAPTA mandates "minimum definitions" for child abuse and sexual abuse. Child abuse or neglect is any recent act or failure to act:
Resulting in imminent risk of serious harm, death, serious physical or emotional harm, sexual abuse, or exploitation
Of a child (usually a person under the age of 18, but a younger age may be specified in cases not involving sexual abuse)
By a parent or caretaker who is responsible for the child's welfare
Sexual abuse is defined as
Employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.
Many states have modeled their laws after the Model Child Protection Act.
Every state has a hotline for reporting abuse and neglect.
All states require certain professionals and institutions to report suspected child abuse, including health care providers and facilities of all types, mental health care providers of all types, teachers and other school personnel, social workers, day care providers and law enforcement personnel. Many states require film developers to report.
Many states have broad statutes requiring "any person" to report.
The National Clearinghouse on Child Abuse and Neglect Information is legislatively mandated to maintain information on line about mandatory reporting statutes and child abuse prevention laws in all 50 states (your tax dollars at work). You can view all or selected child protection laws by state or in side-by-side compilations. The Clearinghouse keeps its statutory compilations up to date and puts them in concise plain-language format. The Clearinghouse has also posted articles relating to child abuse and guides for reporting.
Actual statutory language (where easily viewed) and other state resources are listed in the table below.
Extent of the knowledge triggering the duty to report varies. Some statutes call for reporting upon a mere "reasonable cause to believe" or a "reasonable suspicion." Other statutes require the reporter to "know or suspect," which is a higher degree of knowledge.
Failure to report suspected child abuse can result in criminal liability, although the liability is typically a misdemeanor punishable by a fine.
Failure to report can result in civil liability.
Immunity. CAPTA requires states to enact legislation that provides for immunity from prosecution arising out of the reporting abuse or neglect. In most states, a person who reports suspected child abuse in "good faith" is absolutely immune from criminal and civil liability. For that reason, most healthcare attorneys will advise a client "that it is far better, in theory, to be faced with defending a civil action for reporting suspected abuse rather than the bleak alternative of defending a civil action . . . if a child is injured or killed as a result of failing to make a report of suspected child abuse." Mandatory Reporting: Hidden Dangers by Attys. Jennifer L. Cox and Jennifer A. Osowiecki.
False Reporting. The 1993 CAPTA amendments require states to enact legislation providing for prosecution in false reporting cases (reports made without having a reasonable belief that the report is true.) The false reporting laws must be read together with the immunity statutes and case law, however; persons who report in "good faith" are immune from civil and criminal liability. As a matter of public policy, prosecutors should be extremely selective in initiating false reporting prosecutions so that reporting is not discouraged.
Confidentiality and Privileges. Some statutes expressly provide that all confidential privileges are abrogated. Some states provide an exemption for clergyman who receive information in the context of a sacred communication or confession. The clergy/penitent exception, however, is strictly defined and will not apply if a clergyman is acting in another role, i.e. a health practitioner. This raises the issue of whether pastoral counselors in private practice can assert the privilege.
Attorneys. An attorney is prohibited by ethical constraints from reporting if the information is obtained from a perpetrator or other responsible party exposed to criminal or civil liability via an attorney/client communication. In addition, no statute can abrogate the attorney/client privilege in the context of the defense of a person accused of a crime because such a prohibition would violate the accused person's Constitutional right to counsel. When attorneys represent children or adults in other settings however, there are competing considerations and reporting may be mandatory or permissible. American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases.
Clergy. In the wake of the Catholic church sex abuse scandal, many states have revised their mandatory reporting laws to include clergy as mandatory reporters. Link to an article on clergy reporting by the National Clearinghouse.
All states require the report to be made to some type of law enforcement authority or child protection agency. Reporting to a parent or relative will not satisfy the reporter's legal duty under the statutes.
States now have similar statutes requiring the reporting of elder abuse.
Disclaimer. This web page does not constitute legal advice. This is a rapidly changing area of the law. You should consult a lawyer if you have any questions about your reporting duties. On-line statutes can become out of date and are subject to legal interpretation depending on particular facts and circumstances.
Thank you to everyone who has written to let me know about broken links and amendments to legislation. Please help us keep this page up to date by reporting any problems, good sources, out of date references or bad links. Email to report problems.
State
Statutes & Resources
Link to National Clearinghouse Site State Statutes mandatory reporting page for States that do not have on-line access to statutes. The state statutes page contains information in reporting issues for all 50 states.
|
