As the continuing scandal at Pennsylvania State University shows, child abuse and failure to properly respond to it remains a serious problem. Many states have attempted to combat abuse by requiring various people to report suspected abuse for investigation.
Child abuse reporting laws raise five primary issues:
- What is abuse?
- Who must report?
- When is reporting required?
- To whom must the report be made?
- What happens if the report proves erroneous?
What Is Child Abuse?
Child abuse, generally, is non-accidental physical or mental harm to a child under 18.
In Oregon, child abuse includes:
- Physical assault, including injuries that appear not to be accurately explained.
- Severe mental injury caused by cruelty to the child, which should be considered with reference to the child’s culture.
- Sexual assault, abuse, or exploitation, including causing the child to engage in sexual performances or prostitution.
- Severe failure to provide for the child, if the child’s health or welfare is likely to be harmed.
- Exposing the child to a severe risk of harm.
- Child trafficking.
- Exposure to controlled substances, specifically including keeping a child in a methamphetamine lab.
In Washington, child abuse includes:
- Injury of a child causing harm to the child’s health, welfare, or safety.
- Sexual abuse and sexual exploitation, including creation of child pornography or subjecting a child to prostitution.
- Negligent treatment or maltreatment of a child by a person responsible for or providing care to the child.
Whether Washington allows the child’s culture to be taken into account in determining whether a child is subject to mental abuse is not clearly stated.
Who Must Report?
Although every state has a reporting law, the states have very different lists of who is required to report. Idaho, for example, requires anyone* who has reason to believe a child has been abused to report.
In Oregon, there is a long list of categories of “public and private official” who are required to report. These fall into four major categories:
Medical and Health Care:
- Doctors, psychiatrists, nurses, dentists, and home health aides.
- Community mental health and developmental disability program employees.
- Physical, speech, and occupational therapists.
- Speech and language pathologists.
Education and Child Care:
- School employees.
- Operators of preschool or school-age recorded programs.
- Child care agency employees.
- Licensed foster care employees and child care providers.
Beginning January 1, 2013, employees of colleges and universities, coaches and trainers of child athletes, and employees of providers of youth-related services, such as youth groups and summer camps also are required to report in Oregon.
- Employees of several state and county agencies responsible for children, families, and health.
- Police, firefighters, and EMTs.
- Members of the legislature.
Counseling, in Various Fields:
- Substance abuse program employees.
- Social workers.
- Professional counselors.
- Marriage and family therapists.
- Court appointed special advocates.
In Washington, there is a list of reporters required to report in all conditions and two categories of reporters required to report under limited conditions. The general reporters are:
- Doctors, psychologists, nurses, optometrists, chiropractors, osteopaths, podiatrists, and most other health care providers.
- Social service counselors, including mental health, substance abuse treatment, and domestic violence counselors.
- Police and juvenile probation officers.
- School employees.
- Administrative, academic, and athletic employees of colleges and universities (since June 7, 2012).
- Department of Early Learning and Department of Social and Health Services employees.
- Licensed child care providers and their employees.
- Placement and liaison specialists.
- Responsible living skills program and HOPE center staff.
- Staff and volunteers of the state family and children’s ombudsman.
- Guardians ad litem and court appointed special advocates.
The Washington courts have ruled, because of a 1975 amendment to the law, that clergy, acting in their role as clergy, are not required to report.
The limited reporting classes are:
- Any supervisor in a for-profit or nonprofit organization. Reporting is required if the abuser is a person under his or her supervision who coaches, trains, educates, counsels, or has unsupervised contact with children.
- Department of Corrections personnel. Reporting is required if the grounds for a report arise from observation of offenders or children in contact with the offenders.
Washington also requires anyone who has reason to believe a child with whom the person lives has suffered severe abuse to report. Severe abuse means potentially fatal abuse, or sexual abuse causing severe bleeding, severe bruising, or significant external or internal swelling, or more than one incident or physical abuse involving severe bleeding, severe bruising, significant external or internal swelling, broken bones or unconsciousness.
When is Reporting Required?
In most states, child abuse reporting laws are designed to notify the authorities of reasonably likely cases and to allow investigators to find out what happened. The law does not expect that reporters will be able to identify every case of abuse, and sets a relatively low threshold for reporting.
In Oregon, if a person in a reporting category has a reasonable basis to believe that either a child whom the reporter has come into contact with has been abused or that a person that the reporter has come into contact with has abused a child, the reporter must report the incident.
There are a few exceptions: doctors, psychologists, lawyers, clergy, and court-appointed guardians ad litem are not required to reveal conversations that would normally be protected by legal privileges, and lawyers are not required to reveal information obtained in the course of a case that would harm the client. The purpose of these exceptions is to encourage free communication in relationships that require free communication, and to allow lawyers to protect confidential information for their clients.
If the reporter reasonably believes that the police or Department of Human Services has already been informed of the incident, the reporter is not required to duplicate the report.
In Washington, reporters are required to report when they have reasonable grounds to believe a child has been abused.
Unlike in Oregon, the courts in Washington have ruled that privileged communications with doctors and other health care providers are not protected from reporting. Anyone else is specifically allowed, but not required, to make a report under similar situations.
Where to Report?
The flaw in the Pennsylvania reporting law what that a person required to report merely had to report it to his or her employer, and the person at the top was required to notify the appropriate authorities. This tends to increase the risk that a report would get lost or that an immediate incident might not be reported, as demonstrated in the Freeh investigation.
In Oregon, by contrast, the reporter must immediately orally notify either the police or the Department of Human Services in the county where the reporter learns of the incident. This generally requires an immediate phone call or visit to the police or Human Services office; e-mail is not sufficient. The report should include as much of the following information as the reporter knows: the child’s name and address, the parents’ or caregivers’ names and addresses, a description of the abuse and any known prior abuse, any explanations given, and any other information that would help identify the cause of the abuse and the identify the abuser.
Similarly, in Washington, the reporter must immediately notify the police or the Department of Social and Health Services by telephone and submit a written follow-up. The report should include similar information as required in Oregon.
And What Happens If the Reporter Gets It Wrong?
Many people are worried about being sued for a mistaken abuse report. Legislatures want to encourage reporting, and they don’t expect most reporters to be experts in identifying abuse, so they usually make reporters immune from prosecution or suit.
In Oregon, anyone reporting, whether required or not, is immune if the report is made in good faith and based on reasonable grounds. Essentially, this means that if the information available to the reporter is apparently legitimate, and the reporter believes that the information is probably accurate, he or she is likely to be protected. Although the courts have not yet clearly ruled on the issue, Oregon law probably also protects a reporter from being fired for reporting.
Similarly, in Washington, anyone making a good faith report is immune from prosecution or suit. The courts have ruled that “good faith” is analyzed according to the reasonableness of the reporter’s belief, and a showing of bad faith requires more than a negligent determination.
The bottom line with child abuse reporting is that if you are listed as a reporter, and you encounter a situation that should be reported, you are required to report it, and you are generally protected if you honestly get it wrong.