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January 01, 2012

Changes in Child Abuse Reporting Laws: Are They Forthcoming?

Howard A. Davidson

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The Penn State child molestation scandal has caused a flurry of legislative activity at the federal and state levels related to how child maltreatment reporting laws might be changed. Expanding the pool of people who must report, adding stiffer penalties for not reporting, and improving public education are common themes.

This article summarizes the major proposals and their potential impact. It helps advocates for children and parents in child protection proceedings, and those involved in formulating and implementing child welfare policy, understand the scope of these proposals. With this knowledge, advocates can be better prepared to discuss potential law reforms that may significantly impact frontline child protection practice.

Amending CAPTA and Other Laws

As of late December 2011, there were at least eight proposals to amend federal laws to enhance child abuse reporting. The impetus for these proposals was that several people apparently knew, or had reason to suspect, that children had been molested on the Penn State campus but did not notify proper authorities.

A principal vehicle for some of these legislative changes is the Child Abuse Prevention and Treatment Act (CAPTA), enacted in 1974. It has long required all states to have child maltreatment reporting laws as a condition for federal support under the Act. The bills are:

  • S.1877 would amend CAPTA to add, to the existing requirement to report acts by parents or caretakers, a mandate to report deliberate acts of those other than parents or caretakers who caused death, serious harm, or sexual abuse or exploitation of a child.

    A similar approach, which several members of the House and Senate are working to enact separately, would require all individuals to report suspected and known child abuse and neglect, committed by any person, that would be labeled as such if it had been committed by a parent or caretaker.
  • S.1887 would tie a universal reporting mandate to state receipt of federal law enforcement support funds, and penalize states 10% of their Byrne Justice Assistance Grant Program money for noncompliance.
  • S. 1889 would require a report from any person who learned of facts to suspect a child was a victim of abuse on federal lands, for example in a national park or military reservation.
  • S. 1879 would add a condition for state receipt of federal Social Services Block Grant funding that the state create a felony offense (with a one-year imprisonment minimum penalty) for failure to report child abuse.
  • H.R. 3617 would simply tie CAPTA funding to every state needing to have some criminal penalty for failure to report (several states currently have no penalty).
  • H.R. 3486 would tie state CAPTA funding to a state law requirement imposing criminal penalties for failure to report against those who witness another person engaging in the sexual abuse of a child.
  • H.R. 3650 would suspend and stop all federal funds received by institutions, their employees, or any other entities where sexual abuse of children was not immediately reported. It would cover nonprofits, state and local organizations, and other programs.

Improving Education of Citizens and Professionals

Several of these bills support educational campaigns and training on what constitutes child abuse and neglect. S.1877 would create a new grant program ($5 million/year one; $10 million per year thereafter) within the U.S. Department of Health and Human Services (HHS). This program would educate the public about:

  • acts and omissions that constitute abuse or neglect,
  • the duties to report, and
  • how adults can help children and families (without reporting) when abuse or neglect has not occurred but where help is needed to prevent later child maltreatment.

That bill would also encourage state Children’s Justice Task Forces to use their federal funds to train adults who work with children on reporting their obligations. It would mandate that they evaluate their state’s efforts to conduct such training, and require them to identify experimental, model, and demonstration programs for testing innovative ways to improve reporting. The bill would also require HHS to report to Congress states’ efforts related to mandatory reporting.

Reforming State Laws

Several state legislatures have introduced bills focused on several areas in the aftermath of the Penn State case (including, of course, many bills in Pennsylvania).

Proposals include:

  • mandating reporting by every person who observes a child being subjected to sexual abuse, or who suspects such abuse;
  • designating coaches, camp counselors, and institutions of higher learning as mandated reporters;
  • enhancing penalties for failure to report (including raising that offense from misdemeanor to felony level); and
  • requiring education and training on reporting.

Already enacted before the Penn State case are other laws which:

  • assure that, regardless of where a report is made, when the alleged perpetrator is a person other than a parent or other caregiver, the report is referred to law enforcement;
  • mandate cross-reporting of all sexual abuse and severe injury cases from CPS to law enforcement;
  • protect the reporter’s identity from disclosure;
  • categorize reports based on level of risk of harm to the child; and
  • extend immunity from liability for those reporting abuse or neglect to those assisting, participating, or consulting in CPS investigations and interventions, as well as involvement in court proceedings. (Note: Congress in its December 2010 CAPTA amendments mandated an HHS study of how “immunity from prosecution” might facilitate or inhibit professional reporting and consulting in child maltreatment cases.)

Reforming Other Reporting Laws

In thinking about changes to state laws, other options are worth considering beyond making everyone a mandated reporter, or elevating the “failure to report offense” to a felony level. There are serious potential negative consequences of doing either of those things.

First, requiring universal reporting will make it harder for a victim of child maltreatment to disclose confidentially to a trusted adult or counselor. If everyone has the reporting mandate, children may feel uncomfortable disclosing abuse, especially when committed by a parent or trusted adult.

Also, a mother who learns of her child’s abuse by a father or stepfather may have good reason to withhold reporting to protect her own safety (and the risk of retaliatory abuse by the batterer).

Some other legal approaches to consider are:

  • eliminating the element of law that makes it sufficient for a person in a facility/institution to report abuse to a person “in charge,” making it clear that the duty to notify a superior does not relieve the person from the duty to report directly to CPS or the police;
  • providing specific “whistleblower” protections to prevent retaliation against a person by an employer for making a report;
  • penalizing, as a separate severe offense, the act of willfully interfering with or forcibly preventing a report to be made;
  • specifying that, in addition to a potential criminal penalty, not reporting as mandated by law renders the person subject to civil liability for damages, and referral to the professional’s licensing or disciplinary board;
  • mandating that professionals who make reports receive CPS agency feedback on the outcome of their reports; and
  • most importantly, providing funding to train professionals and the public about child abuse and neglect, the duty to report, and where and how to make reports.

Concluding Observations

Any legislative proposal to change child maltreatment reporting laws by broadening them should carefully consider the potential consequences. All child welfare professionals should critically evaluate these federal and state legislative proposals. It is particularly important that frontline child and parent advocates weigh in on these proposals. Some key considerations include:

  • CPS agencies are already overburdened responding to reports of recent child maltreatment, most of which are unsubstantiated after a time-consuming investigation. Will laws change to require reporting abuse no matter how old the case is? How should we expect our protective services agencies to respond when the abused child is now an adult?
  • CPS agencies were established to protect children from abuse or neglect in their homes, not abuse that occurs outside the home. What is the proper role for them if the report is only about nonfamilial abuse?
  • It is well recognized that most CPS caseworkers need better training and lower caseloads. A dramatic increase in reporting of child abuse will not only stretch their resources further, but also demand a greater investment in more thorough police training. What is being done to enhance local police response to reported child abuse?
  • Since most reporting is done on mere suspicion of maltreatment, an increase in “failure to report” prosecutions will consume prosecutors’ time, and such cases will be difficult to prove. A recent USA Today article on this topic suggests few prosecutions now occur. But are these cases worthy of elevated attention in light of other more serious crimes?
  • Finally, are children truly better off after abuse or neglect is reported? Are children better protected in those 18 states that have a universal reporting mandate, or where CPS accepts reports of abuse that occurred outside the home? It is very important that research on these issues be funded, and the results used to intelligently and carefully craft solutions to safeguard children from abuse and neglect.

Howard A. Davidson is the director of the ABA Center on Children and the Law, Washington, DC.

State Reporting Laws and Practices: A Snapshot

Eighteen states have laws that make all adults mandated reporters. The remaining states list a range of professionals as mandated reporters, from only one designated professional group to over 25 designated professions. Most states list between five and 11 separate professional groups. Many states also limit the mandate to report to reporting of abuse/neglect by parents, caregivers, or others in the home. However, some states take other approaches to mandate reporting of acts committed by teachers, other school personnel, clergy members, health care professionals, babysitters, those who work with children in a coaching or recreational setting, and maltreatment in day care settings, foster or group homes, or other residential facilities.

The 2008 HHS annual Child Maltreatment report compared mandated vs. nonmandated reporters and case investigative outcomes. It found:

  • Professional reporters made over 310,000 reports that were substantiated by CPS, and over 700,000 reports that were unsubstantiated.
  • Nonprofessionals (e.g., friends, neighbors, relatives, and anonymous reporters) that same year made only 80,000 substantiated reports but over 400,000 unsubstantiated reports.

This shows that reports from nonprofessionals are far more likely to be unsubstantiated by CPS.

Are state and county CPS agencies identifying nonparent perpetrators of abuse/neglect? In the Child Maltreatment 2010 report, over 715,000 parent perpetrators were identified, compared with just over 100,000 nonparent perpetrators. If laws change to mandate all persons to report, including the reporting of abuse by persons outside the child’s home, that will surely increase the workload of public child protective service (CPS) agencies.