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Washington Lawyer

Beyond the Penn State Scandal: Child Abuse Reporting Laws

From Washington Lawyer, June 2012

By Anna Stolley Persky

Picture of a little girl holding a doll. Courtesy of Getty Images.In November 2011 college football lovers throughout the United States were shocked by news that former Pennsylvania State University defensive coordinator Gerald “Jerry” Sandusky was accused of sexually assaulting at least one young boy.

As the details unfolded, the scope of the scandal widened. Sandusky was accused of sexually assaulting not one, not two, but 10 boys over a 15–year period. Sandusky claimed he was “horsing around” with the boys he mentored through his charity.

But the scandal spread far beyond Sandusky. Penn State’s long–revered coach Joe Paterno died under a cloud of accusations that he failed to do enough to alert authorities. Tim Curley, Penn State’s athletic director, and Gary Schultz, the school’s senior vice president for business and finance, are both charged with lying to a grand jury and failing to report suspected child abuse.

For some observers, the Penn State scandal exposes the problems inherent in the web of complicated laws defining the scope of who must report suspected child abuse. For others, the scandal reveals the reticence of individuals to get involved, whether required to do so by law or not. In all, the scandal reminds us that child abuse—whether sexual, physical, or emotional abuse or neglect—threatens vulnerable members of our society.

“The Penn State scandal reminds us that as much as progress has been made in the response to child abuse, there is still much work to be done,” says Teresa Huizar, executive director of the National Children’s Alliance in Washington, D.C.

For some child advocates, the answer lies within increasing the number of mandated reporters—people required to notify authorities about suspicions of abuse. “We need to change the norm of silence and standing by to one of openness and engagement,” says Jim Hmurovich, president and chief executive of Prevent Child Abuse America, an advocacy group based in Chicago. “We want people to say, ‘I am going to take action. I’m going to report it. I’m going to help out.’”

But for other child experts, increasing the number of mandated reporters would result in frivolous allegations, more children being needlessly separated from their parents, and a clogged child welfare system.

In most states, mandated reporters are professionals who work with children in a capacity that provides some insight into potential abuse, such as doctors and teachers. Since the Penn State scandal broke, state legislators have been clamoring to clarify and broaden the applicable laws on the issue. But Pennsylvania is far from the only state with confusing statutes. In addition, child abuse laws between states differ greatly, creating even more ambiguity, some legal scholars say.

“The state of the country is that there is tremendous variability between the states,” Huizar says. “The accident of geography determines what is considered child abuse and whether one should report it, and then, depending on the state, the process can be very difficult and confusing. Unless we make this process somewhat more simple or intuitive for the average citizen, it will remain difficult for them to live up to their own sense of moral responsibility and to make reports.”

A Culture Divided
Child advocates and academics debate whether increased mandatory reporting would help protect children or worsen situations where abuse is suspected. “The concern is that if everyone is a mandatory reporter, and if we get the public so enflamed, they may start seeing child abuse everywhere,” says Thomas L. Hafemeister, an associate professor specializing in health care law and policy at the University of Virginia School of Law.

The discussion about mandatory reporting inevitably leads to the debate over where parenting ends and where abuse begins, and who makes the determination of what is appropriate behavior toward a child. While cases of sexual abuse seem clear-cut to most observers, the lines are blurrier when it comes to neglect and physical or emotional abuse.

“Our culture is divided on corporal punishment and what level is acceptable,” says Judith Sandalow, executive director of the Children’s Law Center in Washington, D.C. “On one extreme are the people who believe it is never OK to hit a child. On the other side are those people who believe that it is a good thing to take a belt to a child. Statute and case law attempt to define what’s acceptable.”

Another tension in our society centers on who should get involved and to what extent. Should all American adults be responsible for calling the authorities when they suspect a child is being neglected or abused? Do adults want to take on that level of responsibility toward their fellow citizens and, if so, how should they be held accountable for failing to do so?

“The big question is, how do we ensure that every child has the opportunity for healthy growth and development?” Hmurovich says. “A question that follows is, how do we define the responsibilities of adults in relation to children?”

Critics suggest that increased attention to services targeting families in need and educational campaigns could be more effective in decreasing instances of child abuse. “There’s a fair amount [of information] out there to suggest that teaching kids to be able to self-advocate is a huge part of the solution to preventing abuse,” Sandalow says. “Lawyers have a tendency to think that if you change the law that will solve the problem, but that’s not always the case.”

Frightening Statistics
Child abuse statistics tell a disturbing story. In 2009 more than three million reports of child abuse—involving an estimated six million children—were made in the United States. About 30 percent of abused and neglected children will later abuse their own children, according to the nonprofit group Childhelp. More than 90 percent of juvenile sexual abuse victims know their perpetrator.

In a 2008 survey by Safe Horizon, a national victim assistance organization, 95 percent of Americans polled said they are concerned about child abuse, and 97 percent of those surveyed believe everyone has a responsibility to protect children and prevent child abuse. However, more than one in four Americans interviewed said they have been in situations where they suspected a child had been abused, but they didn’t know what to do. One-third of individuals surveyed said people are reluctant to report suspected cases of child abuse because they don’t want to get involved.

“People are mistaken about what will happen after they report—they often think that they will be civilly liable if they are wrong,” Huizar says. “This is the dilemma. I believe people want to do the right thing, but they have these fears, and we’ve not done a good job at all about dispelling them.”

But Martin Guggenheim, a professor who specializes in child welfare issues at New York University School of Law, says “there is already too much reporting of allegations of child abuse. We are already putting far too many of our resources into investigations, as opposed to truly helping families that are already in the system.”

Society Mobilized
The sanctity of the family has long been revered. For most of the nation’s history, the government did not get involved in monitoring or preventing child abuse. It was considered the role of families to ensure their offspring were fed, protected, and guided.

It wasn’t until the latter part of the industrial revolution that child protection became a larger political and social issue. With cities becoming populated, people began living in closer quarters. They were able to observe what happened in their neighbors’ homes or to their neighbors’ children.

Then, in the 1870s, the media began following a case involving accusations of child abuse. The case involved Mary Ellen Wilson, a little girl in New York City who had been placed into the care of Mary and Thomas McCormack. Thomas claimed to have been Mary Ellen’s father. He passed away, and his widow remarried, changing her name to Mary Connolly. She is alleged to have abused Mary Ellen on numerous occasions.

A concerned missionary, who reportedly couldn’t bear witnessing the child’s plight, pursued legal options for intervention. According to multiple reports, New York authorities were initially reticent to get involved, concerned that they lacked the legal right to do anything. Eventually, the girl was removed from the home, and Mary Connolly was tried and sentenced to one year in jail.

“It is generally agreed that the Mary Ellen case was a significant landmark,” Hafemeister says. “It really was the first highly publicized case, and media attention tends to galvanize responses.”

In the wake of the case, the New York Society for the Prevention of Cruelty to Children was founded. It is the first organization in the world devoted to protecting children from abuse. Later that decade, the American Humane Association was established as a national organization also focused on protecting children. Initially, however, infant mortality and maternal health were given a higher priority over child abuse, according to Seth Kalichman, author of the book Mandated Reporting of Suspected Child Abuse: Ethics, Law & Policy.

The 20th century brought a change in attitude about public citizenship and how much our government should do to help individuals in need. In the 1930s the federal government established a child welfare system. Since then, any American citizen has been able to report suspected child abuse, although at first there were no mandated reporters.

Hafemeister believes World War II was the next significant event in the evolution of child welfare laws. “World War II changed the way we approached things in general. Society was mobilized and concerned. Our concerns about what happened in Germany and Japan, the egregious human rights violations, planted a seed that we needed to do a better job of caring for the vulnerable in our society.”

Efforts Failing
In 1962 the Journal of the American Medical Association published an unprecedented article about child abuse, described as the battered-child syndrome. The article, co-written by Dr. C. Henry Kempe, depicted clinical evidence associated with ongoing child abuse, such as bone fractures and failure to thrive. The article concluded that physicians have a duty and responsibility to evaluate a child abuse situation, and to help ensure the trauma is not permitted to reoccur.

“This article showed that there is an objective way to document and determine that child abuse has occurred,” Hafemeister says. “There could be tangible evidence, and this was something that a physician could observe.”

States began to respond by making child abuse a criminal act. And then, in 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), which has been amended, expanded, and refined over the years. In essence the statute provides for federal funding for states that pass mandatory reporting laws.

Every state has enacted mandatory reporting laws, although these laws differ considerably in content. States also set up their own agencies tasked with responding to child abuse reports and with providing families educational services and other resources. Many state statutes originally delineated relatively few mandated reporters, often focused on physicians. However, over the next few decades, many of those original statutes have been amended and expanded.

“Most of the laws ended up broadening to include sexual and emotional abuse, and to include professions like teachers and child care workers as mandatory reporters,” Kalichman says, a psychology professor at the University of Connecticut who has written extensively about child abuse laws.          

Despite expanded reporting requirements, many child advocates were and still are concerned that state attempts at preventing child abuse have failed. In 1990 the U.S. Advisory Board on Child Abuse and Neglect found that maltreatment of children was a national emergency. “The [board] deemed that the child protection system was so underfunded and so overburdened that children were being harmed,” Kalichman says. “That situation hasn’t changed. It’s gotten worse.”

The series of sex abuse cases involving the Catholic Church has increased awareness of the issue. In addition, the scandals presented questions similar to those asked in the Penn State sex abuse case: Are individuals in the chain of command allowing abuse to occur by failing to speak up? How can other institutions avoid the same mistakes?

“These cases raised important public awareness that among the ranks of even the most trusted adults can exist abusers,” Huizar says. “And, for that reason, institutions must have policies and procedures that protect children, screen workers and volunteers, and require the reporting of suspected abuse.”

Faith Destroyed
Each state has its own definition of child abuse and neglect based upon the minimum standards set by federal law. Most states recognize four types of maltreatment: sexual abuse, physical abuse, emotional abuse, and neglect. According to statistical studies, the majority of cases involve neglect or physical abuse. Accusations of emotional abuse are often paired with other types of abuse.

State, federal, and nonprofit programs struggle with how best to provide services for abuse victims. The National Children’s Advocacy Center provides legal, educational, and counseling services for victims through, in part, its local offices and community partners.

In Maryland, for example, reports of suspected abuse are first screened and then investigated. At the end of the investigation, a determination is made whether the reported abuse is “indicated,” “unsubstantiated,” or “ruled out.” If abuse is “indicated,” then a case could be referred to a child advocacy center, where the victim gets legal and psychological support.

“We provide advocacy, therapeutic intervention, medical examination, and collaboration with other agencies,” says Joy Rowe, director of the Child Advocacy Center for Frederick County, Maryland. “Generally, we are a one–stop shop for victims and their families.”

Child abuse can have both short-term and long–term impact. Most immediately, child abuse results in the death of more than five children every day in the United States, according to the U.S. Government Accountability Office. Children who are victims of physical or emotional abuse can quickly show signs of apathy, depression, and a lack of concentration, sometimes initially diagnosed as a learning disorder. Long–term effects can be devastating. Children who have been sexually abused are more likely to abuse alcohol or become addicted to drugs. One-third of abused and neglected children will later abuse their own children, according to Childhelp.

“Children who are abused are more likely to abuse because that’s how they learned to parent,” Rowe says. “Abuse is extremely detrimental to self–esteem and self–awareness. When a person experiences violence at an early age, trust and faith can be destroyed.”

The U.S. Department of Health and Human Services (HHS) has defined emotional abuse as a pattern of behavior that impairs a child’s emotional development or sense of self-worth. Emotional abuse can include constant criticism, threats, or rejection. But child advocates say individuals and even mandated reporters are often reluctant to report, and authorities often hesitant to pursue, accusations of emotional abuse.

First, it can be difficult to prove a case of emotional abuse. In addition, individuals considering reporting suspicions of emotional abuse may be concerned that their idea of appropriate behavior toward a child may not be a universal standard and that, perhaps, they are being too sensitive or are judging a situation incorrectly.

Rowe is concerned that local abuse victims never make it to the Frederick County Child Advocacy Center because individuals don’t make initial reports to child protective services (CPS). The longer the abuse goes on, Rowe says, the more potential for serious, long-term effects.

“If something is telling you that something is not quite right, make the report,” Rowe says. “It’s better to err on the side of the safety of the child. You don’t have to see a bruise to make a report. “

Mandatory Reporting
Critics of the current hodge–podge of child abuse protection laws emphasize that states can differ substantively. For example, states vary as to who is considered a mandated reporter.

In Virginia, mandated reporters include social workers, law enforcement officers, teachers, child care workers, animal control officers, mental health professionals, doctors, and nurses, among others. However, religious figures such as priests, rabbis, and imams are specifically excluded from the mandatory reporting requirement. In other states, such as Arkansas, members of the clergy are required to report suspicions of abuse.

Meanwhile, 18 states have enacted “universal mandatory reporting” laws that require all adults to report cases of suspected child abuse or neglect. Of those, only New Jersey and Wyoming do not enumerate specific professional groups as mandated reporters. Both states simply require all adults to report suspected child abuse.

But “the jury is still out” as to whether states that require all adults to report suspected abuse have reporting rates higher than those without universal mandatory reporting requirements, Huizar says. More studies are needed to determine the effectiveness of increasing the number of mandated reporters, she adds.

Enforcement also varies across the states. Some states make it a misdemeanor to fail to report, while others have no enforcement mechanism against mandated reporters who fail to do anything.

But Huizar says that even in states with enforcement abilities, little is usually done unless there is a major crisis. “These kinds of cases tend to not go forward, either civilly or criminally, unless the failure to report results in the death of a child, a very serious injury, or an enormous scandal that includes lots of victims,” she says.

False Accusations
For some, the child abuse reporting system is irreparably flawed due to the prevalence of disingenuous accusations. Divorce proceedings, custody disputes, and other family and relationship battles are “hotbeds of false accusations,” according to Thomas A. Pavlinic, an Annapolis, Maryland-based attorney who handles child sex abuse defense cases nationwide.

But Hafemeister, the University of Virginia law professor, emphasizes that bitter custody disputes can result in either side looking for an advantage. Accusations of child abuse, says Hafemeister, can sway a judge determining custody arrangements. “When you are looking for anything and everything you can throw at the other person, accusations can happen,” says Hafemeister, author of the law review article “Castles Made of Sand? Rediscovering Child Abuse and Society’s Response.”

It is, of course, difficult to ascertain statistical evidence on the number of false accusations of child abuse. But regardless, the result can be irreparable damage for anyone who has been falsely accused. “What happens when you get falsely accused is that your world implodes,” Pavlinic says. “Oftentimes you are shunned by your family and friends. You can lose your job. Many people wind up going bankrupt.”

Another concern is that young children who supposedly reveal abuse they suffered are either misunderstood or steered into their statements through leading questions. “Many people don’t understand that young children, such as preschool-age children, can say things that aren’t true, not because they are being malicious, but because they are mixing up reality with fantasy,” Pavlinic says.

While some child advocates are pushing to increase the number of mandated reporters, other child abuse experts point out that the majority of cases reported to CPS are deemed “unfounded” and, thus, dismissed. “The overwhelming percentage of reports is dropped as lacking credible evidence,” says Guggenheim, the New York University law professor and one of the country’s leading experts on children’s rights and family law. “Once you know that, you have to ask yourself: Is there really a serious problem in the United States of underreporting alleged child abuse?”

Call for Tougher Laws
Certainly, some child advocates, educators, and politicians think there is a serious problem with children suffering from abuse and neglect, and with too few observers reporting their concerns to the authorities. In the wake of the Penn State scandal, legislators are calling for new laws to increase the number of mandated reporters and to better define the process for reporting suspicions.

In Pennsylvania, legislators are attempting to develop a more stringent law. Under the state’s current law, for example, disgraced football coach Paterno may have only had a duty to report to someone above him in the school’s hierarchy. Pennsylvania lawmakers are discussing changing the requirements on to whom a report must be made. They also are looking at tougher penalties for individuals who have a duty to report, but fail to do so.

In Congress a number of legislators also introduced bills targeting child abuse. Sen. Bob Casey (D–Pa.) and Sen. Barbara Boxer (D–Calif.) proposed in November the Speak Up to Protect Every Abused Kid Act of 2011, which would require all states to pass universal mandatory reporting laws to receive federal funding under CAPTA. The bill would require that child abuse be reported directly to law enforcement or CPS.

But critics like Guggenheim object to the notion of making every citizen a deputy, with a “public duty to be involved in other people’s lives.” Adds Guggenheim: “If we make it a law to report a suspicion of wrongdoing, it will have a dramatic change in our understanding of who we are and who we are supposed to be.”

Guggenheim also worries that bills could be enacted too quickly in response to the Penn State scandal. “Perhaps my biggest concern about any legislation that follows from the extremely moving and disappointing story at Penn State is that those who would propose a change in the law almost never will balance their call with any long-term perspective. They are invariably proposing a seat–of–the–pants emotional reaction to the headlines. That’s a terrible way to make good law, and it is an exceedingly familiar way in the United States,” he says.

But numerous child advocacy organizations support the proposed legislation. In addition, Sen. Casey has asked for input from HHS to “evaluate differences in reporting standards across states and what impact those differences have on children’s safety,” according to April Mellody, the senator’s communications director.

Public Reluctance
Even if the reporting laws are modified and expanded, there is still the question of whether individuals will actually decide to make a report. People wrestling with whether to report a suspicion of abuse often don’t want to get involved in another family’s friction or parenting decisions.

“We want to intervene when it is needed, but we don’t want to intervene when it is not needed,” Hafemeister says. “There’s a tension in this country between respecting family rights and concern for the well-being of children. Part of us says that what goes on in the family should stay in the family.”

Some individuals are reluctant to report their suspicions, fearing that the children will be further victimized by the process. “We’ve long understood that there is a high cost that children pay simply through the process of being interviewed, and particularly so when very traumatic events are the focus of the conversation,” Guggenheim says.

For Sandalow of the Children’s Law Center, the government agency’s response sets the tone for whether citizens will further report suspicions. “Whatever the law says, how the government responds to the mandatory reporting, has a huge impact on whether or not people report. If a government agency is known to just yank children out of the home, folks who work with kids know that can be extremely traumatic. Similarly, if the government does nothing, people stop calling. If we have a government that offers services and if it is known to try and keep family together, then folks are much more likely to report.”

Hafemeister suggests that government intervention should include an assessment of the parent or guardian. Is this a person who is overwhelmed by circumstances and who, therefore, with training and help, could become a better parent? Or is this a parent who is broken?

“There are some parents who can become better parents, and the children need those parents and need to be with those parents,” Hafemeister says. “But there are some parents who are an ongoing risk and, no matter what you try to do to intervene, are not likely to change their ways. The child is better off away from that parent.”

Fostering Culture of Openness
Psychologists can cite a variety of reasons why individuals fail to report suspected abuse. For example, some people simply fear retribution, or they lack information about how and to whom to report.

Glenn Lipson, a forensic psychologist who specializes in sexual misconduct issues, says some individuals who suspect abuse incorrectly believe they need to have concrete proof before acting. Lipson says others may also be afraid that the authorities would not believe them, and perhaps are having trouble trusting their own instincts that something is wrong.

“When we see something occur, we don’t want to believe our own eyes, especially if this person is somebody with whom we identify or who is our peer,” says Lipson, chief executive officer of Making Right Choices, a Rancho Santa Fe, California–based company that provides training and consulting services to organizations. “People decide to wait until they are 100 percent positive.

But institutions and organizations need to create concrete policies and procedures that encourage an open conversation about concerns, child abuse experts say. The Penn State and Catholic Church child abuse cases provide examples of what not to do when faced with allegations that child abuse may be occurring. “Institutions that instantaneously focus simply on legal self-protection strategies open themselves to intense criticism and public scrutiny,” according to Huizar of the National Children’s Alliance.

Lipson encourages organizations to create a culture that fosters the sharing of “gut” feelings. “Your gut feeling that something is wrong comes from your sense of morality. By making the choice to report, you are making a choice that affirms life and health. But the problem is that people feel ambivalent about reporting a suspicion. And when there’s ambivalence, it often ends up stultifying the best efforts someone could actually make.

Lipson says some institutions, including day care centers, churches, synagogues, and schools, seem to have no clear policy and, in fact, sometimes appear to discourage reporting. Unfortunately, adds Lipson, there are situations where leaders and administrators of an organization ignore or even lash out against individuals who speak up about their concerns that abuse might be taking place, either on or off campus or grounds.

“Sometimes, with churches and other organizations, the people there are in a phase of denial,” says Lipson, also a professor of clinical and forensic psychology at Alliant International University. “Maybe they question the victim. But the danger is that there could be more victims, many more victims.”

Lipson says if organizations “teach and model strong and clear policies,” then the “negative effects of our natural defense mechanisms can be mitigated.”

National Awareness Campaign
Another reason individuals fail to report is that they don’t know what constitutes child abuse in their state, or how to look for evidence of a problem, experts say. In addition, the law isn’t always clear on how to report the abuse.

“If a person witnesses something in the grocery store parking lot, imagine the confusion as that person tries to figure out, first, if it’s a reportable abuse, and then how to go about reporting it,” Huizar says.

Child advocates say the federal government should step up with a national awareness campaign at the level of other health care messages, such as preventing drunk driving or saying no to drugs. “If we are serious, if Congress, if the president, if they’re all serious about reducing child abuse and responding to it, then they need to leverage their resources to send a message,” Huizar says. “I believe that people want to do the right thing, and that if you give them the information about what the right thing is and how to do it, they will.”

But for some child advocates, there needs to be a change more drastic than a national campaign or an expansion of the country’s mandatory reporting laws. Laws aside, advocates like Hmurovich of Prevent Child Abuse America say that our society’s concept of moral obligation and public citizenship needs to shift.

“An adult should assume responsibility for the protection of children. That should be the cultural norm,” Hmurovich says. “If we want to protect children, it’s all our responsibility.”

Anna Stolley Persky last wrote about the United States’ increasing use of unmanned drones in its counterterrorism efforts in the March 2012 issue Washington Lawyer.