Transcript MANDATED REPORTER TRAINING

Candice A. Lively, J.D.
U.S.C. School of Law
Children’s Law Center
(803)765-9601
[email protected]
OBJECTIVES
• UNDERSTAND THE LAW IN S.C. FOR MANDATED
REPORTERS
• KNOW HOW AND WHEN TO REPORT ABUSE AND
NEGLECT
• KNOW YOUR ROLE IN THE CASE AFTER A REPORT IS
MADE
WHY DON’T PEOPLE REPORT?
Failure to recognize warning signs
Resistance to becoming involved
Concern for professional obligations (example,
confidentiality, HIPAA)
Lack of training and confusion about reporting
responsibilities
STATISTICS FOR 2012
• Over 3.4 million referrals were made to CPS regarding
abuse/neglect
• Two-thirds (58.7%) reports of alleged child abuse and
neglect were made by professionals.
• Victims in their first year of life have the highest rate of
victimization
• Total deaths reported from abuse/neglect of children was
1,640
U.S. Department of Health and
Human Services, 2012 Report
THE MANDATED REPORTER STATUTE
S.C. CODE ANN. § 63-7-310
Located in the Children’s Code
Requires designated professionals to report
Encourages anyone to report
Reporting Requirement
Must
report
when
• in the reporter’s
professional capacity
• the reporter has received
information
• which gives the reporter
reason to believe
• that a child has been or may
be abused or neglected
Mandated Reporters in SC
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Doctors
Nurses
Dentists
Optometrists
EMT’s
Mental Health
Allied Health
Counselors
Principals
Assistant Principals
Judges
Film Processors
Social Workers/Public
Assistance Workers
• Coroner (and staff)
• Medical Examiner (and
staff)
• Substance Abuse Treatment
Staff
• Childcare Workers
• Police/Law Enforcement
• Undertakers
• Funeral Directors (and staff)
• Computer Technicians
• Clergy* (privilege exception)
• Teachers
• Juvenile Justice Workers (2010)
• Foster Parents (2010)
• Guardians ad Litem (2010)
• School Truancy/Attendance
Officers (2010)
What is Professional Capacity?
• Compare
– Nurse sees a child with physical injuries
consistent with abuse when the child is brought
to the ER
with…
– Nurse observes parent punching a child in the
face at a local grocery store
What is a Reason to Believe?
“reason to believe” does not require the reporter
to have conclusive proof
does not require proof beyond a reasonable doubt
information must be such that a reasonable
person would rely upon it and information may
include hearsay
What triggers your Duty to Report?
1. Your professional status according to the
statute.
2. How and when you receive or observe a
reportable instance of abuse/neglect.
3. It involves a “child” under the law.
Definition of a Child
A person under the age of 18
A viable fetus - SC Supreme Court has ruled that
a viable unborn fetus (24 weeks) is a “child” for
the purpose of child abuse and neglect
Abuse and Neglect Generally
It is abuse or neglect when a child is
injured by the intentional acts or
omissions of an adult
Abuse and neglect are broadly defined in the
Children’s Code and may include criminal
conduct (S.C. Code §63-7-20)
Examples of Abuse and Neglect
•
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Physical or mental injury
Excessive corporal punishment
Sexual offenses
Failure to supply food, clothing, shelter, education,
medical care
Abandonment
Encouraging delinquency
Exposure to Domestic Violence
Neglect
Failure to supply the child with adequate food,
clothing, shelter, or education; supervision
appropriate to the child’s age and development;
or health care though financially able to do so or
offered financial or other reasonable means to
do so
AND
Failure has caused or presents a substantial risk
of causing physical or mental injury
WHAT IS PHYSICAL INJURY?
Children’s Code: physical injury means
death or permanent or temporary
disfigurement or impairment of any
bodily organ or function
Criminal statutes also define types of
physical injury – Infliction of GBI on a
Child S.C. Code §16-3-95
Can include substantial risk of death
May Corporal Punishment Be Physical Injury?
S.C. Code §63-7-20(4)(a)
• Yes, unless:
– Administered by a parent or in loco parentis
– For sole purpose of restraining or correcting
the child
– Reasonable in manner and moderate in degree
– No lasting or permanent damage
– Not reckless or grossly negligent
What is Sexual Abuse?
Is defined as a sexual offense according to the
criminal laws of South Carolina
S.C. Code § 16-3-651
"Sexual battery" means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any intrusion,
however slight, of any part of a person's body or of
any object into the genital or anal openings of
another person's body, except when such intrusion is
accomplished for medically recognized treatment or
diagnostic purposes.
• Age of consent for sex in SC is
16
• Until June 18, 2012, there was no consensual
teenage sex exception.
CSC W/MINOR 2ND AND 3RD DEGREE the
EXCEPTION
THE ROMEO CLAUSE
• A person 18 or younger who engages in consensual
sexual conduct with a person at least 14 years of
age, cannot be convicted under these provisions of
the law.
SELF CHECK
• In SC, is it legal for a 15 year old to have consensual
sexual intercourse with an 18 year old?
• In SC, is it legal for a 15 year old to have consensual
sex with a 19 year old?
• Is it legal under federal or state law to photograph
the act?
So if you see “sexual activity” on a
phone, what next?
Call Your SRO!!!!!!!!!!!
DO NOT
Seize the phone
Question the student
Accuse the student
Transfer the photo to another device
Take a picture of it
A CAUTION FOR SCHOOL PERSONNEL
• SC Code § 16-15-410 (3d degree child exploitation)
prohibits possession of a visual representation of a
minor engaging in sexual activity OR APPEARING IN
A STATE OF SEXUALLY EXPLICIT NUDITY WHEN A
REASONABLE PERSON WOULD INFER THE PURPOSE
IS SEXUAL STIMULATION. (amended June 2014)
• Statute specifically provides that it does not apply to
a law enforcement agency, prosecuting agency, or
SCDC
“SEXUAL ACTIVITY”
Defined by S.C. Law §16-15-375
• “includes any of the following acts or simulations
thereof:
• ( c ) touching, in an act of apparent sexual
stimulation or sexual abuse, of the clothed or
unclothed genitals, pubic area, or buttocks of
another person or the clothed or unclothed
breasts of a human female”
“Sexually Explicit Nudity”
S.C. Legal Definition:
“the showing of (a) uncovered, or less than opaquely
covered human genitals, pubic area, or buttocks, or
the nipple or any portion of the areola of the human
female breast; or (b) covered human male genitals in
a discernibly turgid state”
DUTY TO REPORT AND CONFIDENTIALITY
 Supersedes confidentiality requirements
 Voids privileged communication between
professional and patient/client (HIPAA)
 Voids privilege between husband/wife
 Not precluded by federal statute on protected
health information
 Clergy/penitent exception
S.C. Code § 63-7-420
• Exceptions to claim of Privileged communication
The privileged quality of communication between
husband and wife and any professional person and
his patient or client, except that between attorney
and client or clergy member, including Christian
Science Practitioner or religious healer, and
penitent, is abrogated and does not constitute
grounds for failure to report or the exclusion of
evidence in a civil protective proceeding resulting
from a report pursuant to this article
Clergy/Penitent Exception
However, a clergy member, including Christian
Science Practitioner or religious healer, must
report in accordance with this subarticle
except when information is received from the
alleged perpetrator of the abuse and neglect
during a communication that is protected by
the clergy and penitent privilege as provided
for in S.C. Code § 19-11-90.
U.S. Code of Federal Regulations
• 45 C.F.R. § 160.203 – HIPAA does not apply if
there is a state law which requires disclosure or
something that HIPAA would otherwise prohibit
when dealing with child abuse and neglect
issues. The entities entitled to this otherwise
protected information are CPS and Law
Enforcement agencies investigating the report.
(this is paraphrased and not a direct quote from the regulation)
HIPAA and Child Abuse
• All states have laws that mandate reporting of
suspected child abuse or neglect, and HIPAA rules
allow disclosure of protected health information
without legal guardian authorization under these
circumstances. In general, if a pediatrician suspects
abuse or neglect, as defined within state statutes,
then he or she is obligated to disclose information
to the appropriate investigative agencies, which in
most states includes CPS and law enforcement
agencies.
American Academy of Pediatrics, Pediatrics Volume 125, No. 1, January 2010
S.C. Code of Laws Ann. §63-7-380
• A MANDATED REPORTER may take photos of the
areas of trauma visible on a child who is the
subject of a report and, if medically indicated, a
physician may cause to be performed a radiological
examination or other medical examinations or
tests of the child …
• “ WITHOUT THE CONSENT OF THE CHILD’S
PARENTS OR GUARDIANS”
S.C. Code § 63-7-390 Immunity
Mandated • Good faith is presumed
reporters • Immunity extends to
are immune participation in investigation
or
court
proceedings
from
• Immunity covers full
liability
disclosure of the facts that
when acting led the reporter to believe a
in good
child was abused or
neglected
faith
FAILURE TO REPORT
S.C. Code §63-7-410
Punishable by a fine up to $500
and/or 6 months
Failing to report is a misdemeanor
Worse – a child can continue to be abused
and/or killed.
You can lose your license, have a mugshot
in the news and ruin your career.
Myrtle Beach Teacher, Counselor charged:
Failure to Report – Sexual Abuse
DSS worker reported to police that the incident
occurred in October and was reported to school
officials in December.
The child ( 9 year old female) told Teacher and
Guidance counselor her mother’s boyfriend sexually
assaulted her while she was trying to sleep, and she
was afraid to stay in the house.
Childcare Director arrested - Neglect
• Greenville WBTW News 13 Reported on June 12, 2013:
• “The director of a child care center in Greenville County has
been arrested and accused of failing to report the neglect
of two children, one of whom died in his home.”
• Director was aware of insect bites and roaches and failed to
report any of this information to LE or DSS. The two year
old child died in his home after a dresser fell on top of him
while he was locked in a bedroom unsupervised.
Elementary School Principal ChargedSexual Abuse
• SENECA, S.C. - Blue Ridge Elementary Principal,
Idasa Cobb has been arrested on charges of failure
to report child abuse or neglect, according to the
Oconee County Detention Center.
Cobb was arrested by Seneca Police.
Reported by WJAR NBC Channel 10, April 4, 2014
False Reports
Knowingly making a false or malicious report is a
misdemeanor
Punishable by a fine up to $5000 and/or
imprisonment up to 90 days
A false or malicious report is intentionally
deceptive, not an honest mistake
Protecting the Reporter
At time of report to DSS, reporter can request
summary of outcome of investigation
Anonymous reports are permissible
Identity of reporter is confidential, except
between DSS and law enforcement
If required to testify, the fact that witness was
reporter cannot be disclosed
Who you are is confidential…
S.C. Code §63-7-330
• Identity of reporter “must not be disclosed”
EXCEPTION:
1) If report made to LE then LE can tell DSS for them
to further investigate;
2) If report made to DSS and it involves the need for
LE, then DSS can provide name for LE to further
investigate.
REPORT TO?
County Department of Social Services
Law Enforcement
In the county where the child resides
Report to DSS when…
Suspected perpetrator is:
– Child’s parent, guardian, foster parent
– Operator, employee, or caregiver of a public or private
residential home, institution, agency or childcare facility
– Adult who has assumed the role or responsibility of a
parent or guardian for the child
Report to Law Enforcement when…
Perpetrator is not responsible for child’s
welfare
Examples:
Occasional babysitter
Neighbor
Stranger
Leader in youth organization
Coach
Teacher
Guidelines for Reporters
Documentation:
◦ Document the basis of your concerns, including
physical and behavioral signs
◦ Document the child’s statements to you, exact words
if possible
◦ Record the child’s demeanor
◦ Record date and agency/individual to whom you
reported
Guidelines for Reporters
• Making the Report
– As soon as possible (no timing provision in statute)
– Do not attempt to investigate – you could become
a witness for court
– Providing your name is preferred but not required
Making the Report cont…
Follow organizational policies and
procedures BUT remember you are
legally required to report and policy
cannot change that legal
requirement.
Document who takes your Report
Inform that person that you are a
mandated reporter
Provide mandated information
Ask if the report is being accepted for
investigation
If Your Call Is Not Being Accepted for
Investigation
Ask if there is any
additional
information you
may provide in
order for it to be
accepted
If the response is
“I have to staff it
with a
supervisor”
•Ask that you be notified
within 24 hours if it is
going to be investigated
Your Involvement After Reporting
• Following the report, you may be served with a
• subpoena:
– to provide additional information
– To testify in court
AND/OR
– To participate on a multi-disciplinary team
involved in the investigation or follow up
CONCLUSION
• As a mandated reporter your duty to report
abuse is legally required and can save a child.
• Be a part of the process so you can assist the
investigation and improve the results for a
child.
• Appreciate your role and cooperate with
those agencies who need your input.
Candice A. Lively, J.D.
U.S.C.
of Law
Children’s Law Center
(803)777-1979
[email protected]
www.childlaw.sc.edu