A summary of the important features of statutes mandating persons to report child abuse and neglect. References to statutes, articles and resources in all 50 states.

 

Topic Home Page: Resources for Victims of Sexual Abuse

Topic Feature: Remedies for Victims of Sexual Abuse

Topic Feature: Statutes of Limitations for Child Sexual Abuse

Table of Contents

Facts about Mandatory
Reporting Requirements

Links

Merk Manual: Reporting Abuse & Neglect

American Academy of Pediatrics: Oral and Dental Aspects of Child Abuse

Book available from the APA: Mandated Reporting of Suspected Child Abuse: Ethics Law & Policy (2d Ed) by Seth C. Kalichman

APA publication: A Guide for Including Information on Child Abuse and Neglect in Graduate and Professional  Education and Training (contains issues discussion and bibliography)

American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases

Student op-ed: Everyone must report all cases of child abuse

Graphic courtesy of Art Today

by Susan K. Smith,
Attorney at Law, Hartford & Avon, CT

Page last edited 07/12/2009

Mandatory Reporting Facts  

• CAPTA mandates  "minimum definitions" for child abuse and sexual abuse. Child abuse or neglect is any recent act or failure to act:

• Resulting in imminent risk of serious harm, death, serious physical or emotional harm, sexual abuse, or exploitation
  

• Of a child (usually a person under the age of 18, but a younger age may be specified in cases not involving sexual abuse)
  

• By a parent or caretaker who is responsible for the child's welfare

Sexual abuse is defined as 


• Employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or
  

• rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.
  
  

• Many states have modeled their laws after the Model Child Protection Act.
   

• Every state has a hotline for reporting abuse and neglect.

• All states require certain professionals and institutions to report suspected child abuse, including health care providers and facilities of all types, mental health care providers of all types, teachers and other school personnel, social workers, day care providers and law enforcement personnel. Many states require film developers to report.

• Many states have broad statutes requiring "any person" to report.

• Extent of the knowledge triggering the duty to report varies. Some statutes call for reporting upon a  mere "reasonable cause to believe" or a "reasonable suspicion." Other statutes require the reporter to "know or suspect," which is a higher degree of knowledge.

• Failure to report suspected child abuse can result in criminal liability, although the liability is typically a misdemeanor punishable by a fine.

• Failure to report can result in civil liability.

• Immunity. CAPTA requires states to enact legislation that provides for immunity from prosecution arising out of the reporting abuse or neglect. In most states, a person who reports suspected child abuse in "good faith" is absolutely immune from criminal and civil liability. For that reason, most healthcare attorneys will advise a client "that it is far better, in theory, to be faced with defending a civil action for reporting suspected abuse rather than the bleak alternative of defending a civil action . . . if a child is injured or killed as a result of failing to make a report of suspected child abuse." Mandatory Reporting: Hidden Dangers by Attys. Jennifer L. Cox and Jennifer A. Osowiecki.
  
  

• False Reporting. The 1993 CAPTA amendments require states to enact legislation providing for prosecution in false reporting cases (reports made without having a reasonable belief that the report is true.) The false reporting laws must be read together with the immunity statutes and case law, however; persons who report in "good faith" are immune from civil and criminal liability. As a matter of public policy, prosecutors should be extremely selective in initiating false reporting prosecutions so that reporting is not discouraged.

• Confidentiality and Privileges. Some statutes expressly provide that all confidential privileges are abrogated. Some states provide an exemption for clergyman who receive information in the context of a sacred communication or confession. The clergy/penitent exception, however, is strictly defined and will not apply if a clergyman is acting in another role, i.e. a health practitioner. This raises the issue of whether pastoral counselors in private practice can assert the privilege.

• Attorneys. An attorney is prohibited by ethical constraints from reporting if the information is obtained from a perpetrator or other responsible party exposed to criminal or civil liability via an attorney/client communication. In addition, no statute can abrogate the attorney/client privilege in the context of the defense of a person accused of a crime because such a prohibition would violate the accused person's Constitutional right to counsel. When attorneys represent children or adults in other settings however, there are competing considerations and reporting may be mandatory or permissible. American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases.
   

• Clergy. In the wake of the Catholic church sex abuse scandal, many states have revised their mandatory reporting laws to include clergy as mandatory reporters. Link to Clergy as Mandatory Reporters of Child Abuse and Neglect. Link to an article on clergy reporting by the Wisconsin Council of Churches.

• All states require the report to be made to some type of law enforcement authority or child protection agency. Reporting to a parent or relative will not satisfy the reporter's legal duty under the statutes.

• States now have similar statutes requiring the reporting of elder abuse.

© 2009 Susan K. Smith, Attorney at Law. All rights reserved.