RRP: Child Abuse Reporting And Teen Sexual Activity

New York laws about “statutory rape” and child abuse reporting are confusing. This list of frequently asked questions (FAQ) describes when to make a report to the State Central Register of Child Abuse and Maltreatment (the reporting hotline for child abuse and neglect) based on a minor’s sexual activity.
This FAQ explains that New York Courts have determined that parental knowledge of a minor’s voluntary sexual activity with a peer is not child abuse and should not be reported to the State Central Register.

This memorandum is not intended to provide individualized legal advice. A health care provider or young person who faces a specific legal problem should consult with an attorney.

1. What is reportable as child abuse?

New York’s child abuse reporting law mandates certain professionals to file a report when they become aware of abuse or neglect committed by a parent or other person legally responsible for a child’s care (caregiver). Abuse or neglect means that the parent or caregiver directly harms the child or acts in a way that allows the child to be physically or emotionally harmed or sexually abused.

Under New York law, child abuse is only reportable if it is committed by a parent or other legal caregiver. Harms committed by strangers or peers are not reportable, unless a parent has allowed a third party to harm the child. The word “allow” means that a child’s parent or caregiver knew or “should have known about” abuse to the child by a third party and “did nothing to prevent or stop it.” A parent abuses or neglects a child if he or she permits a child to be harmed. New York courts generally consider “whether a reasonable and prudent parent would have so acted (or failed to act) under circumstances then and there existing” to determine whether abuse or neglect has occurred.

2. Who must report cases of child abuse?

Mandatory reporters are health and educational professionals who are legally required to report suspected cases of child abuse or neglect to the State Central Register when they have a reasonable suspicion that a child whom they see in their professional capacity is an abused or neglected child.

Mandatory reporters are:

• physicians (including residents and interns), physician assistants, and registered nurses;
• mental health professionals (including social workers, psychologists, substance abuse counselors, alcoholism counselors, and licensed creative arts therapists);
• other health professionals (including dentists and dental hygienists, podiatrists, emergency medical technicians, osteopaths, optometrists, chiropractors and Christian Science practitioners);
• hospital personnel involved in patient admissions, examinations, care or treatment;
• school officials (including teachers, coaches, guidance counselors and principals);
• social services workers;
• employees or volunteers in certain residential care facilities;
• child care and foster care workers; and
• law enforcement officials (including police officers, peace officers, district attorneys, assistant district attorneys and investigators employed by the district attorney’s office).

3. When must a mandatory reporter make a child abuse report?

Mandatory reporters must report a reasonable suspicion of child abuse or neglect immediately. A reasonable suspicion must be based upon “articulable facts which, when examined objectively, would lead others to the …conclusion” that a child whom they see in their professional capacity has been abused or neglected. Therefore, a proper report is based upon a reasonable suspicion that a parent or other person legally responsible for a child’s care harmed — or allowed a third party to harm — the child. Under the law, the State Central Register has the authority to investigate charges only against a legal caregiver, not charges against a person who is not in a caregiving role (for example, another adult relative or a teacher), even if that person harmed a child.

4. Can a mandatory reporter be sued or charged with a crime for making or failing to make a child abuse report?

Situation #1: Penalties for mandatory reporters who make good faith, false or negligent reports.

A mandatory reporter who makes a child abuse report in good faith cannot be sued by a parent for injury to his or her reputation. Good faith is presumed unless a mandatory reporter acts with willful misconduct (makes a report knowing that it is false) or gross negligence (makes a report without exercising even slight care or diligence to determine its validity).

Although good faith mandatory reporters cannot be sued, it is unclear whether a good faith mandatory reporter who incorrectly reports suspected abuse can be charged with a crime for making a false report. New York Social Services Law immunizes good faith mandatory reporters from being charged with a crime. However, a conflicting New York Penal Law makes it a misdemeanor if a person “[r]eports…to the Statewide Central Register of Child Abuse and Maltreatment…an alleged occurrence…of child abuse or maltreatment which did not in fact occur or exist.” This statute seems to state that it can be a misdemeanor to file a false report even when the suspicion of abuse was reasonable and the report was made in good faith. No court has addressed this contradiction. It is unlikely that a good faith mandatory reporter would be prosecuted, even if the report turned out to be unfounded. A cautious mandatory reporter may wish to consult an attorney before making a report.

Situation #2: The mandatory reporter fails to make a report.

On the other hand, a mandatory reporter who suspects abuse or neglect and deliberately fails to report it may be guilty of a class A misdemeanor and can be sued for damages resulting from the failure to report (for example, the continued abuse of the child).

5. Is the parent of a sexually active teenager automatically guilty of child abuse or neglect?

No, a minor is not an abused or neglected child merely because she is sexually active.

Situation #1: The parent is unaware of his or her child’s sexual activity.

Generally, there is no abuse or neglect if a parent or guardian is unaware of a teen’s sexual activity. In Matter of Toni D, the court concluded that a parent must know that his or her teen is engaging in sexual activity in order to consider a charge of child abuse or neglect. In that case, an appellate court affirmed the lower court’s dismissal of charges against the parents of a 13-year-old girl whose boyfriend was 23, because no evidence had been presented to suggest the parents knew of the sexual relationship.

Situation #2: The parent is aware of his or her teen’s sexual activity.

The phrasing of the child abuse reporting law has confused some mandatory reporters about their duty to file a report in cases where the parent is aware of a minor’s voluntary sexual activity. Under the law, caregivers who allow a sexual offense to be committed against a child may be considered abusive or neglectful. New York criminal law broadly defines a crime commonly called “statutory rape,” to be conduct committed by anyone who engages in vaginal, oral or anal sex with a minor who is 16 or younger, even when the activity is voluntary and even when the minor engages in sexual activity with a partner who is also under 17.

All the New York courts that have considered the question of whether a parent’s knowledge of a teen’s sexual activity constitutes child abuse have found that it is not child abuse for a parent to know that a minor child is sexually active and have done nothing to stop it.

For example, in In re Leslie C., a mother was charged with abuse and neglect because her daughter was sexually active with, and became pregnant at the age of 14 by, a 20-year-old boyfriend. The Court dismissed the charges. The Court found that while statutory rape laws serve a strong social policy purpose, child abuse liability cannot reasonably be extended to the parents of all sexually active minors. The Court extensively discussed the policy reasons against imposing particular moral or religious values under the pretext of child protection, and the practical problems involved in convicting thousands of parents — including responsible and involved parents — of child abuse because of their children’s sexual activity. The Court concluded that Leslie’s sexual activity and even pregnancy did not support a child abuse finding against her mother. The Court further concluded that any abuse or neglect charges should be “limited to those parents who fail to intervene in forced sexual relationships of which they have personal knowledge.”

While the age of the minor may be taken into account in determining whether sex was voluntary, a conclusion should not be based solely upon the age difference between the partners. In Leslie C., the court concluded that the six-year age difference between the 14-year-old minor and her 20-year-old partner did not itself warrant finding the parents guilty of child abuse. But it left open the question of “whether, on different facts, an abuse finding should be made.” A court might reach a different finding in a case involving, for example, a 12-year-old in a sexual relationship with a 25-year-old, despite claims that it was voluntary and consensual.

In another case, In re Philip M., a state appellate court affirmed a lower court’s conclusion that a 15-year-old with a sexually transmitted infection could not be presumed to be the victim of child abuse because the minor’s age indicated that he could have been engaged in “consensual sexual activity.”

In summary, parents of sexually active or pregnant minors are not automatically guilty of abuse or neglect, even if they know of such activity and do not take action to stop it.

6. Should a mandatory reporter file a child abuse report against the parents of a sexually active minor solely on the basis of the child’s sexual activity with an older partner?

No. In order to report a possible case of child abuse or neglect, a mandatory reporter must have a reasonable suspicion that such abuse or neglect is occurring. Because Courts have found that failure to prevent a child’s voluntary sexual activity does not constitute abuse under New York law, this situation in and of itself cannot give rise to a reasonable suspicion of child abuse. Therefore, without other evidence of abuse, mandatory reporters should not report sexually active or pregnant minors to the State Central Register.

Health care, educational and other facilities should not impose policies requiring the blanket reporting of all sexually active or pregnant teens to the State Central Register because such situations generally will not be considered child abuse.

7. How does a health provider’s duty of confidentiality affect the reporting obligation?

Most health care providers are under a legal duty not to disclose information learned in their professional capacity without the patient’s permission, unless otherwise required by law. Providers who disclose such information without patient authorization or other legal permission commit professional misconduct and can be sued, fined, and have their licenses revoked. However, as discussed above, there is a legal exception to this duty of confidentiality that requires health care providers to report information to the State Central Register when that information is the basis for a reasonable suspicion that their minor patient or the child of a patient is abused or neglected.

As described above, New York courts have held that most cases of consensual under-age sex does not constitute child abuse. In these situations, a health provider cannot have a reasonable suspicion of child abuse and there is no legal basis to breach a patient’s confidentiality to file a report. A health care provider or other professional with confidentiality obligations who makes a child abuse report where there is no reasonable suspicion of abuse commits professional misconduct. This can subject such providers to professional sanctions for breaching patient confidentiality, in addition to liability for committing the crime of false reporting.

8. Should a mandatory reporter report teen sexual activity to law enforcement or the police as statutory rape without the patient’s permission?

No. Even though the minor may be the victim of a statutory sex offense, no New York law requires the reporting of crimes to the police. Furthermore, in the context of health care provision, providers should not report crimes committed against their patients to the police without the patient’s prior permission. A health provider who reports a minor’s sexual activity to the police without the patient’s permission (or the parent’s permission if the minor is unable to consent to the health service) has breached patient confidentiality, committed professional misconduct and made herself vulnerable to lawsuit by her patient and to professional licensing sanctions. Hospital policies that mandate or permit reporting of “statutory rape” to the police (or to child protective services without further evidence of abuse) also make the hospital vulnerable to a lawsuit.

9. Should a mandatory reporter file a child abuse report if he or she learns that a minor is engaged in a sexual relationship with a parent, caregiver or other family member — even if the minor says that it is consensual?

Yes. A minor engaging in a sexual relationship with a parent, guardian or other person in a caregiving capacity — even if the minor considers the relationship consensual — is a proper basis for a child abuse report.

April 2006