Thursday, December 15, 2011

Mandatory Child Abuse Reporting

The world of sports was rocked this week by former Penn State assistant football coach Jerry Sandusky’s indictment for allegedly abusing eight young boys over the last fifteen years.

As the week progressed, it was revealed that Penn State officials knew about Sandusky’s actions, at least to some extent,  and failed to take action.  The fallout included the firing of long-time head football coach Joe Paterno and the departures of university President Graham Spanier, Athletic Director Tim Curley, and Senior Vice President for Finance and Business Gary Schultz.  Additionally, a graduate assistant coach who witnessed Sandusky abusing a young boy and did not report it to the police has been placed on administrative leave.

Paterno’s firing, although supported by much of the country, has raised the question in many people’s minds: Was he required to go to the police, or did he fulfill his duty by telling his superiors about what his graduate assistant witnessed?

Based on statements made thus far, it appears unlikely Paterno will face charges for failing to report to the police because he fulfilled his duty by reporting to his superiors, the athletic director and vice president of the university.  However, some people familiar with Penn State are speculating that Paterno filled such an authoritative role within the university that his decision not to go to the police guided everyone else in their inaction.

Almost every state, including Pennsylvania, has legislation naming specific professions whose members are mandated by law to report mistreatment of children to law enforcement.  Those statutes typically include professions such as social workers, teachers and other school personnel, doctors, child care providers, and law enforcement officials.   Pennsylvania’s statute does not require someone in Paterno’s position to report suspected abuse to law enforcement.

Many mandatory-reporting statutes specify which communications are privileged and which are beyond that privilege and must be reported.  For example, states often exempt communications between an attorney and his or her client, but require communications between a doctor and patient or husband and wife indicating possible abuse to be reported. 

In making these laws, states must strike a balance between a desire to protect children and an individual’s constitutional rights.  Most recently this analysis has arisen in connection with mandatory reporting statutes that compel a clergy member to disclose information in a manner that impinges on his religious beliefs.  Only a few courts have spoken on this conflict so far, as many of these statutes arose more recently after the Catholic priest child abuse scandal.  Those courts that have addressed this issue tend to support the state and uphold the reporting statute.

The ACLU has also spoken out against expanding mandatory reporting statutes in some instances.  Last spring the ACLU of Illinois described a pending bill that expanded mandatory reporting of child abuse to cover every employee or volunteer of any organizations that provides or refers for reproductive health care as “creating cumbersome and unnecessary bureaucracy and training requirements for non-profit organizations and diverting time and money from patient care.”

Although it appears Paterno did not violate a legal duty to report, it remains to be seen whether mandatory reporting laws will be changed in Pennsylvania or elsewhere as a result of these events.  The media storm will inevitably continue and people will debate Paterno’s legacy, but we’d do best to remember the true victims of this abuse – the young boys whose lives were changed forever. 

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