Monday, November 26, 2012

Child sexual abuse - changes to mandatory reporting troublesome

The new law expands the list of those mandated by law to report suspected child abuse. The extant and extensive list of mandatory reporters will now includes college employees. The media reports indicate that the expansion is constrained to suspected child sex abuse, but that limitation seems unlikely because the law relates to the reporting of "child abuse."

Apparently it was prompted, at least in part, by the Penn State incidents. But the new law is a hindsight law that at best may convince the general public that our legislature cares. It is also the means that the well-intentioned use to solve problems - pass a law and problem solved.

The new law (I haven't seen the text) apparently extends beyond any suspected child abuse that a college worker might see in his or her ordinary duties to abuse that is suspected anywhere 24/7.

Assuming that the law could or should be enforced - a college employee has no particular attribute that qualifies him or her to spot suspected abuse. If one (mandatory reporter or not) has firsthand knowledge - he or she will not be encouraged or discouraged by a law - their moral code will be the determination to report.

The Penn State case involved university officials who, it is argued, knew of the reported sexual abuse yet failed to call the police. Apparently the argument is that they covered up the event to protect the university. If true then their moral code would not have been any different with a mandatory reporting law - the university would still be their first priority.

Many people it is said to stay quiet when they suspect or even witness child abuse. Why? "Mostly, they were afraid -- afraid of being wrong, afraid of retaliation, afraid of making things worse for the child."  [Mandatory reporting: Pass 'Penn State bill' on child abuse, then keep talking].

Those are good reasons that will not be changed by mandatory reporting. E.g., it is not unreasonable for people to assume that they might be wrong, and if so, realize that the consequences may be severe. See the Day-care sex-abuse hysteria case. it is an extreme case, but it demonstrates how a claim can take the justice system down the wrong path

But I would add too that determining suspected abuse is a legal term of art that can only be defined in court only after the abuse has occurred. It is the term "suspect" that offers too much ambiguity for effective enforcement. Anything short of firsthand knowledge will be difficult to assess as to culpability. How much suspicion is needed for a valid report that can be legitimately acted upon?

And of course there is the difficulty that we use the term "abuse" as if it has universal and obvious meaning - it doesn't. Define it as you might in a statute - there will be few that will know of the statute or the meaning contained therein. And even with 'training' it is unlikely that anyone will remember the definition with its limitations.

It is important to note too that the penalty is a fine. One cannot expect that a fine will be levied except only in a hindsight situation; thus, a failed report is unlikely to come to light except after the fact, the abuse still occurred.

But, the law may establish a legal duty to report that may be a basis for a lawsuit for either a report or a failure to report. Oh yes - the law offers protection in the form of immunity from liabilities, but defending or prosecuting a legal action is not inexpensive.

A little out of context, child abuse, especially sexual abuse, is too often misused by those with an agenda. As an attorney who has been involved in a goodly number of child custody cases - reported child physical abuse is often used to gain an advantage by a parent or another close to the action. Yes - even sexual abuse comes into play when, e.g., well-intentioned grandparents claim knowledge of sexual abuse. A father in a custody action who bathes his very young child  is risking his custody rights.

However, my concerns apply to any law that mandates citizens reporting on other citizens. And that is where the new expansion takes us. It is not difficult to support a reporting mandate where that reporter is by his or her profession uniquely qualified to spot abuse, e.g., a pediatrician.

But,  "[e]ven doctors under-report, according to the American Academy of Pediatrics. One 2008 survey found that only 31 percent of Americans contacted the police or child services when confronted with suspected abuse."  Presumably, these doctors are required to report suspected abuse. But, even if not, will mandated reporting change the under-reporting?

Oregonian's Susan Nielsen: "This problem can't be fixed solely by passing tougher mandatory-reporting laws . . . . It also requires tackling the fear and mistrust that fuel people's reluctance to speak out."  But with pediatricians failing to speak out -it may point to the fact that there is more to the failure to report than reluctance or fear.

Two recent cases in the news - Jimmy Savile (UK) and Jerry Sandusky (USA) demonstrate a certain cognitive dissonance. And we see it nearly everyday in the media when someone is arrested for some heinous crime - those who know the person just can't believe hat he or she would or could have done it.

No solution in sight - but mandatory reporting or expanding the list of mandatory reporters is not the answer. Stepping, even if inching, toward a society that encourages its citizens to report on one another weakens the overall fabric of a democratic society.