REPORTING SUSPECTED CHILD ABUSE
Fire department personnel spend hours preparing to handle emergencies. Their training includes using the equipment, practicing procedures, and preparing to deal with life-threatening situations. However, there may be a type of emergency situation that is not covered by these routine drills.
REPORTING CHILD ABUSE CASES
What happens when a fire department arrives at the scene and discovers evidence of possible child abuse? Such an incident is not as rare as you might think. The American Humane Association records over one-million child abuse and neglect cases each year, and fire personnel may come into contact with many of these families.
Despite these alarming statistics, many departments are unaware that in most states the law requires fire personnel to report suspected abuse and neglect cases. In many instances, fire department training programs have ignored this legal mandate. Even in those areas where there is training in how to handle child abuse cases, there are no formal policies.
Part of the problem is that each year state legislatures revise their mandatory child abuse reporting statutes. As a result, there is much confusion as to who must report what.
The trend on a nationwide level has taken two forms. Currently, there are 23 states that require all citizens, regardless of their occupation, to report suspected child abuse and neglect. In two states, members of fire departments are specifically singled out as mandated reporters (see Table 1 on page 21 for list of states). Keep in mind, however, that when these laws change every year, more occupational categories are added to the required reporter classification.
Thus, in 25 states, a fire department mqst inform its personnel that they are required by law to report any suspected child abuse or neglect cases. Unfortunately, however, the states provide little guidance as to exactly what must be reported. The law says “report” but does not specify when and how. Because it is so vague, only about one out of every five cases even gets reported, according to some authorities.
The most important question, of course, is: What legally constitutes abuse and neglect? No two states’ definitions are alike. It’s no wonder then that fire departments and organizations are confused.
The one and only definition that all the states agree on is that a child” is a person under age 18.
There are some common elements among the laws, but there is by no means a nationally accepted definition. A perfect example is the term “physical abuse.”
Most states define physical abuse as non-accidental injury. In Maryland, the law includes physical injury resulting from cruel or inhumane treatment, or from a malicious act. That may seem like a vague definition, but the state court ruled in 1978 that the term had a “commonly understood meaning.”
In their version of the law, Massachusetts adds “serious” to the term physical injury, and includes a child who is physically dependent on an addictive drug at birth. Oregon goes one step further by including any injury that appears to be at variance with the explanation of the injury. And Utah broadens the definition even further by adding the notion of threatened harm to a child’s health or welfare.
The confusion mounts with the more detailed definition of physical abuse offered by other states. For example, Vermont uses “death, or permanent disfigurement, or impairment of any bodily organ or function.” Colorado goes even further to include evidence of skin bruising, bleeding, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, or death that are not justifiably explained or appear to be nonaccidental.
One corollary issue that most states do not address involves corporal punishment. Where do you draw the line between spanking, or otherwise physically disciplining a child, and abuse?
The state of Washington notes in its statute that the law is not intended to interfere with child rearing practices. This includes reasonable parental discipline, which is not proved to be injurious to the child’s health, welfare, and safety. There is no definition of what is reasonable, however. Colorado’s version is almost identical.
Similarly, Connecticut refers to “cruel punishment,” and Illinois and Florida include “excessive corporal punishment.” Yet, it is left up to the reporter to determine exactly what is cruel and excessive.
Sexual abuse must be reported in every state. Some states, like Kentucky, do not explicitly define what is meant by sexual abuse. Others, like Florida, define sexual abuse by referring to another statute, or include sexual exploitation. Maryland includes sexual abuse cases even when no physical injuries have been sustained, which constitutes sexual molestation in some states.
The most confusing definitions of all are those of child neglect and emotional maltreatment. Two states, Indiana and Maryland, do not even include neglect in their laws as reportable forms of abuse.
Rhode Island considers a child neglected when the parents fail to provide a minimum degree of care, proper supervision, or guardianship. Louisiana’s statutes expand the definition considerably by describing neglected children as those whose parent or parents have consistently refused to provide reasonably necessary food, clothing, shelter, or medical service, although they are financially able to do so.
Emotional maltreatment too is usually explained in a vague and confusing manner. Several states ignore mental abuse altogether by not even mentioning it in their statutes. Missouri’s laws make emotional abuse a reportable condition, but provide no further explanation.
Only a few states go as far as Nevada, which defines mental abuse as a “substantial injury to the intellectual or psychological capacity of a child as evidenced by an observable and substantial impairment of his ability to function within his normal range of performance or behavior.”
When to report
Under what circumstances is a report of child abuse legally required? For example, is it mandatory for an off-duty firefighter to report?
The laws in most states are relatively clear in this regard. A person is required to report only when he is on the job. The language of New Mexico’s law is typical. It requires that a report be filed by someone acting in an official capacity. New York includes incidents suspected in a reporter’s professional capacity.
In those states where all citizens are required to report suspected abuse the limitation, of course, does not apply since reports are required under all circumstances. Thus, all fire personnel in those states must report regardless of whether or not they are on the job at the time the abuse is suspected.
But the laws are confusing because they do not clearly state how certain of child abuse a person must be before filing a report. Over half of the states demand reports when there is “reasonable cause to suspect,” “cause to believe,” or “reason to believe.”
How can “reasonable” be defined?
As a rule, states do not even attempt to define exactly what is reasonable and what is not. That issue is left up to the courts if and when a questionable situation arises. In other words, if a case of child abuse was not reported, it would be up to the complaining party (most likely the district attorney’s office) to show that the reporter had acted unreasonably by failing to report as required by law.
This is also one of the reasons why many reports are never filed. Let’s say a firefighter was at the scene of a fire of suspicious origin in a house and saw a child with a badly bruised face. What degree of evidence or certainty must there be for that firefighter to file a report of suspected child abuse? Must the bruises be examined more closely? Should the child be questioned as to the cause of the bruises? Should the parents or caretakers be questioned as well?
The only guidance the law provides is the vague term “reasonable.’ Yet, the law does not require the reporter to investigate— only to report suspicions.
What about reports from individuals who are not mandated to report under state law?
Twenty-six states have included an additional category called permissive or non-mandated reporters. In states like California, for example, there are about 50 occupational categories that are mandatory, and all other persons may report voluntarily.
The same principle applies to cases where a mandated reporter is not acting in an official capacity. If a firefighter was not at work but heard about a neighbor abusing a child, it would fall into the permissive category. The firefighter could report the abuse but would not be required to do so. Nonmandated reporters may report anonymously, while a mandated reporter must identify himself.
How to file
The process of filing a report of suspected child abuse or neglect is virtually the same in every state. The reporter must first make an oral report (usually via the telephone), followed by a written report within a limited time period (usually 35-48 hours).
The content of the child abuse report must include:
- The child’s name,
- The child’s current whereabouts,
- The child’s age and sex,
- The address of the child and/ or parents,
- The identity of the alleged abuser, if known,
- Any other information that led the reporter to file the report.
Reporters and legal action
Another reason that many people do not report is the fear of a lawsuit that might be filed by angry parents (even if they are found guilty later on). That is why all 50 states provide immunity for reporters, even if it later turns out that a mistake has been made and the child was not a victim of abuse. In most states, the law even goes a step further by providing a presumption of good faith reporting.
Even if a parent decided to file a lawsuit, the law is firmly on the side of the reporter. As the plaintiff, the parent would have to prove the reporter’s lack of good faith and that he had intentionally filed a false report.
On the other hand, all but five states (Idaho, Maryland, Missouri, North Carolina, and Wyoming) have enacted a criminal penalty for a mandated reporter who fails to report.
The criminal offense in these 45 states is a misdemeanor. The penalty ranges from a $100 fine and five days in jail (in Arkansas) to up to a $1,000 fine and/or six months in jail (in California). The survey shows, however, that such prosecutions are very rare.
The threat of a possible civil action in a malpractice type of suit is much more likely to affect fire department personnel. From a purely legal standpoint, there is no doubt that a firefighter who is mandated by law to report a suspected case of child abuse could face financial ruin if he fails to do so.
Here are some points of practical
advice for those who need to know more regarding their legal responsibilities for reporting suspected incidents of child abuse and neglect.
- First, you should make sure you stay up-to-date with changes in the state laws that require child abuse reports.
- Second, it is equally important to be trained in how to recognize suspected cases of child abuse and neglect. Laws that require reporting are useless if the mandated reporter does not know what to look for. Programs are offered through many professional associations, by local community colleges, and through some grantfunded sources.
- Last, it may be advisable for you to contact a fire department supervisor so you can see what policy has been established for reporting.
The best source of information may be a state-wide professional association or local fire department legislation liaison.
In some states, changes in legislation are passed as urgency statutes, meaning that they take effect upon the signature of the governor, rather than on January 1 of the next calendar year.
Information on such training is usually available through a county-level agency for child protective services. Some states are now beginning to require such training for licensing or certification in some professions.
Some states require mandated reporters to alert their immediate superior when an alleged abuse is suspected. Departments that do not have a policy on how such cases are to be handled may want to consider adopting one.
In addition to the legal responsibilities involved in reporting suspected child abuse, there are, of course, always moral responsibilities.
Each of us decides when we want to become involved and when we turn away. State mandatory child abuse reporting statutes are designed to make sure that not too many of us turn away, so that the rights of children will be protected*