The Universal Need for the Mandatory Reporting of Child Sexual Abuse

Posted in: Criminal Law

Just in case you believed that Penn State was the only university with the problem of child sex abuse on campus, The Citadel’s president just publicly apologized for failing to report information about alleged abuse that had occurred during a summer camp held at the military college.

And that is not the only brush with the issue for The Citadel, which apparently settled claims against another Citadel camp counselor to the tune of $3.8 million in 2006.

Does anyone truly think Penn State and the Citadel are the only two universities in the country with secrets to hide on child sex abuse?  Me neither.

Thus, I believe that it’s urgent that we engage in a national discussion about the law regarding the reporting of such abuse, on university campuses and everywhere else.

The Ideal Solution Is Universal Mandatory Reporting

It is now a rite of passage for athletic kids to go to college campuses for summer sports camps.  And wherever kids go, sadly, so do pedophiles.

So now parents must worry about their children’s vulnerability to sexual abuse in schools, churches, synagogues, temples, Boy Scout troops, and even universities.

Families must demand better information, and the only way to have more reliable information is through mandatory reporting laws.

A Hotline—Coupled With Immunity From Defamation Claims for Those Who Report Abuse in Good Faith—Should Be Part of the Solution

Here is a description of what, in my view, would be the ideal state law:  It would mandate that every adult with information about a child’s having been—or being, on an ongoing basis—sexually abused must report that information to a state hotline.

The hotline’s operators would be trained to take down the relevant information, and to funnel that information to the right state entity or entities—including child protective services, and/or the police, and/or the foster care oversight agency.

The hotline would keep a record of the name of the person who reported the abuse, but the identity of the person doing the reporting would be kept confidential, unless there was evidence that the report had been made in bad faith.

Moreover, any adult who made a good faith report would be immune from any attempt to sue him or her for defamation, but knowingly false reports would lead to penalties.  So much for the objection about false claims.

Another Part of the Solution Would Be Strong Failure-to-Report Penalties

Such a hotline would be vital, but it would not be enough.  In addition, the law should impose meaningful penalties upon an  adult who possesses information about the sexual abuse of a child, and fails to report that information to the hotline.

Beyond this, as well, institutions should be placed under an obligation to report abuse, so that the secret of the abuse cannot be bottled up in the organization.  We have been educated as a society by the struggles of the Catholic Church in ridding itself of the stench of child sex abuse cycling within the institution for decades, if not centuries.  Let’s learn from this historical lesson at least what is most obvious: containing information about sexual abuse is harmful to everyone.

There are many organizations that should have to report abuse, or suffer severe penalties for failing to do so.  They include, just to give a set of examples, public and private schools, including universities; day care organizations; gyms and sports clubs; churches, synagogues, and temples; and private clubs.

In Addition to Instituting Reporting Reforms, We Also Need to Ensure that Investigations Do Not Go Off Track

Let’s assume that we do put in place the universal reporting system I have suggested.  As we learned with Penn State, reports can be made, but investigations may not follow, or may go off-track.  How do we prevent that from happening?

Consider the Penn State scandal itself.  In 1998, the first report was made regarding Jerry Sandusky, who now has been accused of abusing scores of children.  The report came from a mother who contacted the University Police after she learned that Sandusky had showered with her son.

The campus police then investigated, as did the local District Attorney’s office, but ultimately the investigation was closed.  Why?  We do not know, in part because the District Attorney disappeared, along with the hard drive to his computer.

Let me hypothesize regarding the possible reasons the case might have been closed without any criminal charges:

First, the child’s account could have been discounted, once the investigators spoke with Sandusky—who, for all they knew, was the great guy he seemed to be.

Second, Sandusky’s allies in the University’s football program could have put quiet pressure on the campus police to wrap up the investigation as soon as possible.  Not because they wanted to protect a pedophile, but because, in their eyes at the time, he was a great guy.  This is another lesson for all of us: who are the pedophiles?  They are the nice guys and gals we want our kids to spend time with.  That’s why parents let their kids go off in the first place with these adults.  I will never forget what former FBI child abuse expert, Ken Lanning, said in a talk at Cardozo Law School—pedophiles don’t just seem nice.  They really are nice.  At the time, all I could think as a parent was, “Yikes!”  You can never let down your guard when you are protecting the vulnerable.

Third, and this does seem to have happened according to the grand jury report, the investigators could have given Sandusky a lecture about how he’d better never do it again, to which he readily agreed.  Pedophiles can seem very sincere.

I don’t know whether any of these conversations actually occurred, but each would be a plausible explanation for why the investigation of the 1998 report did not result in charges against Sandusky.  And each of these possible scenarios would be very disturbing, if true.

First, discounting a child’s account of inappropriate adult behavior is something that we do as adults instinctively.  But, in fact, children rarely lie about this sort of behavior, so if we discount children’s own reports, we are avoiding a hard reality, rather than listening to what is overwhelmingly likely to be the truth.

Second, no institution should be pressuring investigators to hastily investigate sexual abuse leads.  Haste in any criminal investigation is wrong.  And here, it is especially problematic, where there is so much at stake—for the child at issue, and also for many other children, given that so many abusers have multiple victims.

Finally, everyone ought to accept that lectures threatening that another violation will be met with penalties, are inadequate to deter a pedophile.  Compulsion is not overcome by logic or by fear.

We Need To Resist Claims that Mandatory Reporting Laws Need to Have Exceptions

To summarize briefly, mandatory reporting for all adults in a state is a very good beginning, and mandatory standards for abuse investigations – and close, impartial scrutiny of them—would also be welcome.

But, importantly, neither of these reforms will work as it should, without mandatory universal reporting.  That’s because exceptions to reporting requirements turn the organizations that receive them into unduly dangerous places for children.

Some states have exceptions to reporting requirements for clergy, or for clergy if the information was gained in the “confessional.”  And the “confessional” has been interpreted to mean not just a Catholic confession, but generally a confidential communication between clergy and a believer.

So, in such states, if a pedophile confesses child sex abuse to a priest, or Mormon bishop, or Orthodox rabbi, the idea is that the clergyperson should not have to report the abuse.  But where does that get us?  Sadly, it keeps the secret in the institution, and no one thrives more on secrecy than a pedophile.  With secrecy, the perpetrator can find the next victim in the very same institution, and can assume that the cloak of anonymity will cover his or her misdeeds with the next child.

Nevertheless, the Catholic and Mormon bishops still lobby for confessional exceptions to reporting requirements, and they still argue for broad interpretations of what counts as “confession” in the courts.  In short, they fight to keep the secrets of pedophiles within the organization.  That is very unfortunate—for the children, and for them.

By forcing the information outside the organization, mandatory reporting of child sex abuse saves not just the child, but also the institution.  Thus, those who support reporting exceptions in the belief that, in doing so, they are supporting their church—or school, or camp—get it exactly wrong.  Reporting requirements do not cripple institutions; rather, they force them to flush out their wrongdoers, thus making the institution a healthier environment.  And without such requirements, abuse will flourish, and the institution will weaken.  Just look at Penn State:  Had it embraced mandatory reporting, it would not be in the place it is now.

Posted in: Criminal Law