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by Kathryn S. Krase, Ph.D., JD, MSW
Making the decision to report suspected child maltreatment is tough. Making the decision NOT to make such a report is just as difficult. Even though more than three million reports of suspected child maltreatment are made every year in the United States, many suspicions are never reported (Delaronde, King, Bendel, & Reece, 2000). The law in all 50 states is designed to encourage reports by providing immunity (see Part VI in the Making the Tough Call series), but also through threats of punishment if a mandated reporter fails to report suspected child maltreatment.
It is important to remember that the law does not always require you to make a report when you have a suspicion that a child is being maltreated (see Parts I and V in the Making the Tough Call series). If the law DOES require you to make a report, and you fail to do so, you risk legal repercussions and professional consequences. If your report is not required, then there are no legal repercussions or professional consequences awaiting you for not making a report. However, there are other consequences to consider—societal consequences.
Legal Repercussions
If the law requires you to make reports of suspected child maltreatment and you fail to do so, there are legal consequences that can be used against you. These consequences can only be used when you knew, or should have known, that you were legally obligated to report the particular suspicions. This standard is called “willful failure” (Lau, Krase, & Morse, 2009).
Some mandated reporters may fail to make a report because they feel they do not have the time to make the report or be involved in an investigation. Other mandated reporters may fail to make a report because they have had negative prior experiences with child protective services. These are examples of willful failure, and the mandated reporter may be found liable for a failure to report. Willful failure includes situations in which the mandated reporter simply waits a day before making the report.
Criminal Liability
Criminal law provides strong penalties for failing to make a report. In almost ALL states, there are criminal penalties for mandated reporters who willfully fail to make a report when required by law. The child in question does not need to be harmed for the reporter to be found criminally liable for failing to make a report.
In most states, failure to report is a misdemeanor offense, usually punishable by fine. In some states, misdemeanor offenses can carry a sentence of jail time or probation. In some states, such as Arizona, failure to report serious allegations (such as physical and sexual abuse) carries stronger penalties, such as a felony offense. In some states, when a reporter fails to report child abuse or neglect more than once, harsher criminal penalties can be expected. In states where there is no specific provision for criminal liability for failure to report, such an offense may be considered a crime under general criminal law (Besharov, 1990).
Civil Liability
In some states, a mandated reporter who fails to make a report when required by law may also be subject to civil liability. Through a civil case, a mandated reporter who fails to make a report when required by law to do so can be forced to pay money for any damage to the child and/or his or her family that occurred after the report should have been made (Besharov, 1990). The mandated reporter will not be held responsible for the damage of the abuse or neglect that occurred before the reporter should have made a report.
In states that do not have specific laws about civil liability for a mandated reporter’s failure to report suspected child abuse or neglect, failure to report may be considered negligence under general civil law. Negligence is a civil action most often used against professionals, such as social workers, who are bound by ethical responsibilities to protect others in addition to their legal responsibilities as a mandated reporter. To be held liable for negligence, a mandated reporter must be shown to have a duty that he or she failed to fulfill. The failure of such duty must have caused damage. The mandated reporter would then be liable for any damage caused by failure to fulfill his or her duty.
One duty that may be found in a failure to report case is the duty of mental health professionals to protect persons from likely harm. This duty was found in the California Supreme Court case of Tarasoff v. Regents of the University of California in1976. In this case, a psychologist was found responsible for failing to protect a woman, Ms. Tarasoff, from impending danger by one of the psychologist’s clients. The client told the psychologist during a therapy session that he intended to kill Ms. Tarasoff because she rejected his romantic advances. Although the psychologist reported these statements to the campus police, he did not contact the local police department, nor did he warn Ms. Tarasoff herself. The court found fault in the doctor for these failures.
As a result of the Tarasoff case, California and many other states have changed their laws to establish the legal duty to protect potential victims of impending harm. Therefore, social workers generally have a legal duty to warn known potential victims of impending harm. The Tarasoff duty can be considered relevant to child abuse and neglect reporting in that a report to CPS is made to protect children from future harm.
Cases of Failure to Report
Mandated reporters fail to report almost half of their suspicions to CPS (Delaronde, King, Bendel, & Reece, 2000), but legal action against mandated reporters for failure to report is very rare. This is because it is hard to prove that a reporter knew something that she or he has not reported. Even though such cases are rare, when they are discovered, they are often followed with high-profile media coverage (Kalichman, 1999). A case involving teachers in New York State is representative of the national experience.
In Bedford Hills, New York, school officials’ failure to report suspicions of sexual abuse of a young female student subjected a young girl to further abuse and threatened the careers of teachers and school administrators. The mother of a 9-year-old girl reported to a teacher that her daughter was told by a female classmate that she had had sex with an adult (Saunders, 2007). The school responded by performing an internal investigation. The girl’s teachers were asked if they had noticed anything wrong with the student that would suggest sexual abuse. When none of the student’s teachers reported any behavior out of the ordinary, the school did not report the suspicions to CPS. When the mother of the girl later reported to the police that her boyfriend had raped her daughter, it became known that the school was aware of the allegations and had failed to report them to CPS. Criminal charges were filed against the principal. The charges were later dismissed after the principal agreed to share her story in a number of trainings to mandated reporters across New York State. Civil charges were filed by the alleged victim’s mother against the principal and involved teachers (Whitaker, 2006). The jobs of the principal and involved teachers were threatened, but with support of their union, they were able to retain employment through the school district (Saunders, 2007). The principal lost her position and title but was rehired by the school district in another capacity.
In response to this case, New York State increased training efforts in schools. It is important to note that the mother of the classmate also failed to make a report to CPS, but because she was not a mandated reporter in New York State, she could not be held liable.
This case highlights an important point for consideration by mandated reporters. Mandated reporters should not be asking themselves, “Can I prove child abuse occurred in this instance?” but instead, “Is it reasonable that I am suspicious that abuse might have occurred?” In this case, it was reasonable to believe that sexual abuse might have occurred merely because of the fact that the child shared such information with her classmates, even if there were no behavioral indicators to note, and even if she denied the abuse when asked.
Professional Consequences
As in the Bedford Hills case, mandated reporters’ jobs are in jeopardy when they fail to fulfill their duties as mandated reporters. Failing to fulfill your duty as a mandated reporter can serve as “cause” to lose even the most “secure” job.
A mandated reporter who fails to report suspected child maltreatment may risk losing any professional license he or she might hold. In states where social workers are licensed professionals, the law usually requires them to follow all applicable federal, state, and local laws. Failure to report child maltreatment when required to do so would be a failure to follow state law. Therefore, social workers could be subject to state license board intervention in the form of a fine, suspension, or even revocation of their licenses.
Professional associations, such as the National Association of Social Workers (NASW), may sanction (and even expel from the professional organization), censure, or suggest corrective action for social workers who have failed in the legal and ethical obligation to report suspected child maltreatment. Professional organizations for social workers are not legal or governmental authorities and do not have the authority to rescind professional licenses or order damages to be paid. Additionally, professional associations only have the ability to sanction their own members. Social workers who are not members of a given professional association are not subject to its disciplinary procedures.
Societal Consequences
To understand the societal consequences of a failure to report suspected child maltreatment, start by thinking that a report of suspected child maltreatment is a “request for an investigation of a suspicious situation,” as stated in Part V of this series. This request may result in the provision of important services to a child and her/his family. Many of these services are designed to support the family and protect the child’s well-being. These services include social and/or economic assistance. Unfortunately, in some places, such as New York City, the demand for these services, including subsidized child care, is so high that families only qualify if they are deemed to be a priority. Families with an open child protective services (CPS) case are often considered to have priority status. Families without an open CPS case may never receive these important services.
Other services provided to a family as a result of your report may include placing the child(ren) in protective custody/foster care. Your report is not likely to result in a child being placed into foster care. Only four to seven percent of children in cases reported to child protective services in any given year will be placed in foster care (United States Department of Health and Human Services, Administration on Children and Families, 2013). Foster care is a very important service provided by CPS. Foster care is provided to protect children from unsafe home environments.
If you do not make a report to CPS when you should have, or could have, an investigation will not be done; a child and her/his family may not receive the services or protection that can help them. By NOT making a report when you should have, or could have, even if there is no legal risk to you or your professional position, you may be missing the opportunity to help a child and family in need.
References
Besharov, D. J. (1990). Recognizing child abuse: A guide for the concerned. New York: The Free Press.
Delaronde, S., King, G., Bendel, R., & Reece, R. (2000). Opinions among mandated reporters toward child maltreatment reporting policies. Child Abuse and Neglect, 24(7), 901.
Kalichman, S. C. (1999). Mandated reporting of suspected child abuse: Ethics, law & policy. Washington: American Psychological Association.
Lau, K., Krase, K., and Morse, R.H.(2009). Mandated reporting of child abuse and neglect: A practical guide for social workers. New York: Springer.
Saunders, S. (2007). What you need to know about child abuse: A cautionary tale from Bedford Hills. New York Teacher.Latham, NY: NYSUT
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976).
United States Department of Health and Human Services, Administration on Children, Youth
and Families (2013). Child Maltreatment 2012. (Washington, DC: U.S. Government Printing Office).
Whitaker, B. (2006, December 10). Bedford Hills principal will have charge dropped. New York Times, 14WC, Column 6, p.2.
Kathryn S. Krase, Ph.D., J.D., MSW, is an assistant professor of social work at Long Island University in Brooklyn, NY. She earned her Ph.D. in social work, her Juris Doctor, and her Master of Social Work from Fordham University. She has written and presented extensively on mandated reporting of suspected child abuse and neglect. She previously served as Associate Director of Fordham University’s Interdisciplinary Center for Family and Child, as well as Clinical Social Work Supervisor for the Family Defense Clinic at New York University Law School.