Memo 13
Child Abuse Reporting Requirements; The Laws and Selected Discussion Topics
INTRODUCTION
This memorandum will outline the mandatory child abuse reporting laws as they apply to California public school employees. We also discuss selected problems school employees face in trying to implement these laws. A complete reprint of the applicable child abuse
reporting laws–from both the Penal Code and the Education Code–appears at the back of this memorandum.
THE BASIC REPORTING LAW
Penal Code section 11166 requires a mandated reporter (defined below) who knows or reasonably suspects (discussed below) that a minor is the victim of child abuse (defined below) to report immediately by telephone and in writing by follow-up report within 36 hours to law enforcement (defined below). The law penalizes the failure to report by imposing a jail sentence on the defaulting mandated reporter. On the other hand, the law rewards the reporter who meets the reporting obligation by granting absolute immunity from civil or criminal prosecution.
Each new hire, mandated reporter or not, must sign a statement confirming that the person has received and read a summary of the reporting law. (Penal Code section 11166.5.)
DEFINITIONAL ISSUES
1. Who is a mandated reporter?
In the public school setting, a mandated reporter is a "child care custodian.”
a. Automatically included – The law uses "child care custodian" to automatically include:
Teachers
Administrators
Supervisors of child welfare and attendance; and
Certificated pupil personnel staffb. Included if specifically trained in child abuse detection are:
Instructional aides
Teacher’s aides; and
Teacher’s assistantsc. Also included if employed by the district are:
Community care or child day care workers; and
Health practitioners (including doctors, psychologists and nurses)
2. What kind of knowledge or observations trigger the duty to report? What is child abuse?
The law requires a report whenever a mandated reporter observes a child with physical "injuries which appear to have been inflicted . . . by other than accidental means by any other person . . . .” Whether or not there are visible physical injuries, all suspected sexual abuse must be reported.
The law recognizes and assumes that certificated staff have received sufficient training in child abuse detection in preparation for their professional careers. Certificated employees are conclusively presumed to understand the above definition of child abuse and to have been prepared to carry out their reporting duties. Districts may (and generally do) add classified employees to the group of mandated reporters by giving them appropriate training in child abuse detection techniques.
3. To whom is the report made? What form does the report take?
An oral report to designated law enforcement agencies must be made immediately. The observing employee must contact:
a. Local police or the sheriff;
b. Juvenile Probation Department; or
c. The Child Protective Services (“CPS”) Unit of the local Welfare or Human Services Department.
The law makes clear that a school district police or security department is not qualified to accept child abuse reports. They are not child protective agencies. (Penal Code section 11165.9.)
A follow-up written report must be submitted within 36 hours. The Department of Justice in Sacramento developed the basic written report form, and copies are readily available to each district.
4. Penalties for non-reporting; possible credential revocation
The reporting law (at Penal Code section 11172) makes failure to report a misdemeanor with a penalty of six months in jail and/or a fine. We further understand that the Commission on Teacher Credentialing has administratively taken the position that failure to report is likewise a basis for credential revocation.
5. Immunity for timely reports
Penal Code section 11172(a) immunizes a mandated reporter from civil or criminal liability for any report required or authorized under the reporting law.
SELECTED PROBLEMS IN IMPLEMENTING THE REPORTING LAW
The following are some of the most frequently asked questions about the child abuse reporting laws.
1. How long will my name remain confidential?
The law forbids disclosure of a reporter’s name to a parent, child or another agency– even to the employing district–without either the reporter’s consent or a court order. (Penal Code section 11167.) In practice, this means that there will be a point in any criminal or juvenile dependency court case when the discovery process will inevitably reveal to the parents (if not the general public) the reporter’s identity.
An interesting question is thus posed and answered: May the school employer’s internal procedures require the reporter to disclose his/her name to the employer? Or even the fact that a report was made? Penal Code section 11166(f) says no:
"The internal procedures shall not require any employee required to make reports pursuant to this article to disclose his or her identity to the employer."
2. What if I learn about possible abuse “secondhand”? Do I have to tell someone?
Yes. The duty to further investigate rests with law enforcement.
3. What about consensual sexual activity by children under age 14? Must I always report?
Probably, yes. Sexual activity involving minors poses the classic dilemma under the reporting law. On one hand, the Penal Code establishes the rule that any sex act involving a minor under age 14 is always felonious abuse, regardless of the age of the sex partner. Purported consent is absolutely void. (Penal Code section 288(a).) Recently, a Court of Appeal upheld a California Youth Authority sentence for "consensual” sex by a 15-year old boy with a 13-year-old girl. (In re John L. (1989) 209 Cal.App.3d 1137, 257 Cal.Rptr. 682.) On the other hand, two appellate courts apparently disagree as to whether there is a duty to report sex acts by minors over 14 with a minor under 14. (Compare Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 226 Cal.Rptr. 361, holding that under-14 sex is not reportable, with People v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 249 Cal.Rptr. 762, observing, though not directly holding, that under-14 sex is automatically reportable.)
Reporting questions so far left unanswered by the courts include –
a. What about statutory rape (sex with any minor under age 18)?
b. What about boys under 18 sexually involved with an adult?
When in doubt, it is never wrong to report. Let the trained law enforcement investigators decide what to do.
3. Is mental suffering–without sign of physical injury–to be reported?
Yes. If you have doubts about whether to make a formal report of suspected mental suffering, CPS staff answer telephone inquiries on a confidential basis 24 hours a day.
4. If I tell my supervisor, principal or superintendent about my observations or suspicions, am I relieved of my duty to report to law enforcement?
Absolutely not. In fact, there may be serious problems for both the employee and the district board where the teacher does not report to law enforcement. However, it would not be improper for a district to require reporting employees to immediately notify the principal and superintendent of the report.
The statute makes clear that "the reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit such reporting duties . . . .” Your district
may, however, continue to require that certificated employees use existing internal procedures to the extent that they facilitate reporting and apprise supervisors and administrators of reports. (Penal Code section 11166(h).)
Your internal administrative reporting and notification rules must not be inconsistent with the provisions of the child abuse reporting statutes. (Jail and/or a fine may be the result of any attempt to impede or inhibit reporting.) In this regard, we urge each member district to make sure that nothing in your existing administrative reporting referral system prevents the reporter from first making direct contact with law enforcement or CPS.
5. What should I do if I suspect another district employee of child abuse?
The duty to report to law enforcement is clear. Criminal conspiracy (a felony) could well be charged against any employee who in any way acts to cover up for another employee.
In the fellow employee situation, we should note that the child abuse report confidentiality requirement (in Penal Code section 11166(h)) does not exempt an employee from separately notifying the superintendent of an assault on a student by an employee.
6. How must I cooperate with law enforcement officials in interviews of abuse victims at school?
Penal Code section 11174.3, the school interview law, imposes both a time sequence and a series of duties on school personnel and the law enforcement investigator.
a. School Interview Law and Situations Where it Applies:
(1) The law is limited to children who are suspected child abuse victims. This means that interviews of child witnesses or child suspects can be conducted under law enforcement’s existing arrangements with your school.
(2) The law speaks only about child abuse in the home, not at play or at school.
(3) When law enforcement comes to school to take the child into custody rather than to question the child at school, the interview procedures do not apply. The child is effectively under arrest.
b. Purpose of the School Interview Law:
Law enforcement (sheriff, police or CPS) may interview suspected victims of child abuse on school premises during school hours concerning child abuse in the home. The child may choose to be interviewed in private or may select an adult staff member to be present "to lend support.”
c. The Time Sequence: Practical Problems for Schools in Implementing the Interview Law:
Step One – The investigator comes to the school.
Identification – We advise our members to reconfirm with law enforcement that all investigations begin with a visit to the school office. The staff member "in charge" should ask for identification and the purpose of the proposed interview.
When the investigator reveals that the interview will focus on allegations of abuse in the home directed at the child, the staff member in charge should proceed to Step Two. If the interview is for any other purpose, follow previously established procedures.
Step Two – The child is advised of his/her right to have an adult staff member present.
The new law gives the child the right to choose a staff member to be present during the interview. The law implies that someone advise the child of this right before the interview begins. Several questions arise.
(1) Who advises the child of the right to have a staff
member present?Law enforcement investigators must so advise the child. We strongly recommend that the school district insist that a school employee be present when the child is told of the right to have a staff member at the interview.
(2) What if the child seems too young to understand the right to have an adult staff member present?
The rule of reason should apply. The investigator should be asked to consider some other place, away from school grounds, for custodial detention and interrogation if the child does not appear to understand this right.
(3) What does the school employee do if the child does not wish to have a staff member present?
Assuming the child appears able to understand what he/she is saying, the employee should leave the room. The interview is then the sole responsibility of the investigator.
(4) What if the child says, "I want my mother/father”?
If anyone is going to deny such a request, it must be the investigator. School employees do not grant or deny such requests.
(5) What if the child changes his/her mind during the interview?
The school interview law gives the child a continuous option to ask for an adult staff member or to send the staff member away.
Step Three – The child asks for an adult staff member to be present. What does the selected staff member do?
(1) May the selected staff member decline to sit in on the interview?
Yes. The law expressly allows a staff member to decline.
(2) Are any staff members ineligible?
No. The law lets the child pick from the entire adult staff, not just mandated reporters. If the child selects a parent who is a staff member and the investigator does not want the parent present, the investigator must discontinue the interview or take the child into custody.
(3) Who informs the selected staff member of his/her role?
The district must inform the staff member of his/her duties under Penal Code section 11174.3. For this purpose, we recommend that every adult staff member be informed of the provisions of section 11174.3 and that this be documented by a signed statement in the employee’s file, which should read: "I have read and received a copy of Penal Code section 11174.3 explaining my duties in the event I am selected by a child to be present during an interview of the child by a child protective agency investigator concerning suspected child abuse in the child’s home." In addition, the staff member should be handed a copy of Penal Code section 11174.3 by a school employee at the time the staff member agrees to be present at this interview.
(4) What does the staff member do during the interview?
The role is one of “comforter.” There is no questioning by the staff member and no discussion of the child abuse incident (if any) with the child. There must be no prompting by the staff member. Law enforcement investigators should not attempt to ask or direct the staff member to coerce, suggest or elicit a response from the child.
The law forbids disclosure of what the staff member hears or learns during the interview. Obviously, this confidentiality rule disappears if, and when, a court orders testimony.
Significantly, no written report or separate child abuse report is required of the staff member.
(5) What if all selected staff members refuse to participate?
The employer may not impose any discipline for a refusal. The investigator will have to seek an alternate site for an interview.
d. Penalties for Failure to Implement the School Interview Law:
The law imposes no separate criminal penalties on the school district for failure to implement the law; however, it is a misdemeanor to fail to perform a mandatory public duty. A cause of action in a civil case could be stated for negligence or infliction of emotional distress if a district–or a staff member- acts in a way which harms the child physically or psychologically.
Employees who violate the confidentiality rules may have similar liability problems.
The law does provide, however, that a district or staff member’s failure to comply will not affect pending criminal or civil proceedings from an evidentiary aspect.
e. District Duties and Mandated Costs:
The school interview law provides that the staff member may only be expected to participate in the interview during school hours. The state will not reimburse for overtime or the cost of substitutes. The district may refuse to provide a staff member if no substitute is available to cover the employee’s duties. However, we encourage cooperation between a district and the investigator so that the interview may be facilitated. This may entail advance notice of the proposed interview – or a postponement once a staff member is selected – so that someone can be provided to cover the employee’s job duties during the interview (in the typical case where the classroom teacher is selected.)
7. What about notification to the parents?
The question comes up both early and later in the reporting process.
a. Must I notify the parent whenever I suspect abuse?
Basically, to protect the child and to preserve testimony evidence, the law forbids notification to the parent by the school.
b. What about after the child is taken away?
Education Code section 48906 historically required notice to the parent whenever law enforcement took a child away from school. In suspected child abuse cases, however, that section now specifically forbids the school from contacting parent to inform them that the child has been taken into protective custody. The law now requires the law enforcement agency to notify the parent. When asked by the parent, the school employee should simply give the name, agency and telephone number of the officer who took the child.
In conclusion, we reiterate an earlier observation. When in doubt, report. While this office remains available to consult on the reporting law, one should never treat a call to Schools Legal Service as a substitute for a mandated report to law enforcement.
A copy of the reporting laws is attached.
§288. Lewd Act on Child–Punishment; Additional Fine; “Caretaker” and “Care Facilities” Defined.
(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
§11165.9. ”Child Protective Agency” Defined.
As used in this article, “child protective agency” means a police or sheriff’s department, a county probation department, or a county welfare department. It does not include a school district police or security department. Leg.H. 1987 ch. 1459.