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Legislative Memo: Child Abuse Reporting

This bill was initially introduced in response to widespread reports of child abuse committed by members of the clergy. Existing law requires the reporting only of suspected abuse against a minor by a family member.

The law does not currently address allegations of child abuse by clergy persons or the failure of religious institutions to respond to such allegations.

The proposed legislation includes two provisions that are intended to address these gaps in the law: first, the bill adds clergy to the list of “mandatory reporters” – those required to report suspected child abuse by family members to child welfare authorities. This list of mandatory reporters already includes health care providers, school staff, social services workers and others who provide services to youth.

Second, the bill creates a new category of “child abuse” and requires that mandatory reporters notify the police when they suspect that any person in a position of authority with a minor – including a clergy person – has committed an offense against the minor. Willful failure to report a suspicion of abuse is punishable as a misdemeanor crime.

These provisions are designed to ensure that abuse committed by persons in positions of trust with young people, including clergy persons, is reported to police. The NYCLU does not oppose this legislative intent or the provisions in S.2947-B that require a report of suspected offenses against young persons by clergy members and authority figures.

However, S.2947-B proposes an additional amendment to the Social Services Law that undermines the original intent of the legislation and, as a practical matter, will actually put children at risk of harm. (See proposed Title 6-B, Section 429-a(1)(a)(i).) This provision would require that mandatory reporters make a report to the police each and every time they suspect that someone nineteen or older has committed one of a number of designated offenses against a minor less than fourteen.

The proposed legislation would define child abuse to include, among other crimes, all statutory sex offenses in Article 130 of the Penal Law. This provision is sweeping in scope, encompassing all sexual conduct – even if consensual. The proposed law would compel a police report not only where sexual intercourse may be involved, but even where young people are suspected of engaging in sexual touching while fully clothed.

This provision, although well intentioned, will have significant harmful consequences. If enacted into law, this legislation will encourage law-enforcement officials to intrude upon and undermine relationships of trust between young people and the professionals young people turn to regarding matters of health, sexuality and interpersonal relationships: teachers, counselors, physicians, and nurses.

This will have the effect of discouraging young people from confiding in adults about matters of sexuality. Why? Because kids will quickly learn that the information they entrust to a teacher or counselor may well be turned over to the police.

Teachers and other service providers will, in effect, be deputized as quasi law-enforcement agents. Under this scheme an issue that calls for instruction, counseling or sexual education becomes, in the eyes of young people, a criminal matter.

The bill will also discourage young people from obtaining needed health care out of fear that conversations with doctors and nurses will no longer be confidential. The bill itself gives recognition to the importance of confidentiality by preserving the privileged nature of confessions and other information offered in confidence to clergy – such communications are exempt from the mandatory reporting requirement.

However, the bill fails to extend the same protections to other relationships usually privileged: those between a patient and his or her doctor, nurse or mental health professional. Upon learning that their conversations with health care providers may no longer be confidential, young people will be far less likely to seek or obtain necessary health care.

Most teenagers will pay little mind to the distinctions made in the bill regarding age. Once a teen learns that a trusted counselor, nurse or clinic is obliged to report “underage” sexual activity, trust is destroyed. Teens will assume that it is no longer safe to turn to health care providers and counselors for information, advice and treatment.

The risk of a police report will discourage young people from confiding in adults about sexual issues when doing so could bring the police to their door and send their girlfriend or boyfriend to jail.

In fact, advocates for adolescents and families recognize that police should not be brought into every situation involving sexual relations among young people – situations that may entail great family conflict. It is well documented that law-enforcement officials are often grossly unprepared in responding to family disputes.

Nonetheless, under this bill the professionals mandated to report, as well as the child’s parents and the child who is the subject of a report are afforded no discretion whatsoever in determining whether police involvement is advisable given the specific circumstances of a situation.

Even if one were to accept that it is appropriate to require a police report regarding any suspected sexual contact between someone who is nineteen and someone who is less than fourteen, this mandate is not nearly as straightforward as the bill would seem to suggest. After all, the age of a young person may often appear to be ambiguous if not indeterminate.

But teachers and other authority figures will be compelled to make such determinations. And faced with a criminal misdemeanor charge for failing to notify the police of suspected “child abuse,” teachers and others to whom a student turns for guidance will be under enormous pressure to act on assumptions about age and over-report.

The sponsor of S.2947-B has advanced the legislature’s deliberation upon the issue of clergy abuse. The bill provides clarity regarding the circumstances that should compel a report of suspected child abuse involving a person twenty-one or older in a position of authority over a person less than seventeen.

But the section that would require the reporting of teen sexual activity constitutes a serious flaw in the bill. It would be a grave error to pass this legislation, however well intentioned, if it includes this provision.

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