Child Abuse

• Author: Richard Leiter
• Pages: 403-428

Page 403

If child abuse is not the most serious crime facing our society today, it is certainly one of the most heart-wrenching. There are many attempts under way to remedy the underlying causes of child abuse, but, until it is eliminated states have unanimously responded with laws specifically designed to identify and punish child abusers.

Child abuse is an insidious type of crime where the victims are, for many reasons unable to, or are fearful of confronting or reporting the perpetrator to authorities. Therefore, the laws surrounding abusive activity contain an element not found in many other criminal statutes. Under the laws of many states, third parties with knowledge of, and reasonable cause to believe that abuse has occurred, are under a legal obligation to report the situation to the authorities.

The reporting provision is the most controversial and the most problematic of this area of the law. In our society, many relationships are held in particularly high regard and communications in those relationships are given special protection. For example, the law seeks to encourage communication between patient and doctor, client and attorney, and congregant and clergy, and protects the content of any communication between them from discovery by third parties by providing a “privilege,” or a rule, that prohibits the doctor, lawyer or clergy from revealing the content of any communications that take place within that particular professional relationship. There are also certain occasions, not covered by the privilege where parties may presume their relationship to be confidential, such as between parent and teacher. Under the child abuse laws for some of these relationships, the professional in such relationships must now report any known or suspected abusive behavior to the proper authorities.

Virtually every state requires doctors, teachers, day care providers and law enforcement officers to report child abuse, but there is less uniformity among the states with regard to lawyers, clergy, therapists, or counselors. A few states require commercial photographic film processors to report to the proper authorities evidence of abusive activity. Some states are very specific in stating exactly who may be protected by the privilege, but some are noticeably vague. This is because the privilege itself is considered so important that a general abrogation of the privilege may be generally detrimental to the important relationships involved. For example, some states require health care professionals to report incidences of abuse, while others list as many as 20-29 professions, including dentists, chiropractors, nurses, hospital personnel and Christian Science practitioners.

The loss or abuse of privilege is not the only controversial or problematic provision of these laws. In many states, the definitions of what constitutes abuse is so broad as to cover a number of different circumstances, including some that may not be abusive at all. Coupled with the fact that in many states one need only have a reasonable suspicion that abuse has occurred in order to report it to the authorities, the laws have left many people fearful that innocent behavior may be misinterpreted by well-meaning, or worse, ill-meaning, private citizens.

The agency to whom suspected abuse is reported is often a state child protection office that is not hindered by the same constitutional restrictions to which traditional law enforcement agencies are subject. These agencies are sometimes allowed to take custody of children prior to actually proving that abuse has occurred. This is done in order to protect the child in question from potential abuse when the agent believes that there is a strong likelihood that the child will be, or continue to be harmed. Some critics of these laws fear the potential of extreme invasions into relationships between parent and child on the basis of very little evidence. Indeed, there have been cases where significant charges of child abuse have been made against individuals and severe action taken against them, such as children taken away from parents, day care centers closed down, only to have the charges later dismissed as lacking any concrete evidence whatsoever. For these reasons most states have passed laws that impose penalties not only for failure to report suspected abuse, but also for false reporting.

Page 404

In the last few years state laws have changed in two significant ways. Several more states have added enticing or forcing children into sexually exploitive activity to the definition of child abuse. This represents a new definition of abusive activity distinct from sexual abuse. Obviously this new definition results from increased attention being given to child pornography. Another change is the addition of pre-natal child abuse to the state statutes of South Dakota, Wisconsin and, arguably, Texas. These provisions raise some difficult questions (to the modern mind at least) about the definition of a “child” in the eyes of the law. It is very likely that these laws may find their way into the courts for further definition.

Page 405

Table 26: Child Abuse
State	Code Section	What Constitutes Abuse	Mandatory Reporting Required By	Basis of Report of Abuse/ neglect	To Whom Reported	Penalty for Failure to Report or False Reporting
ALABAMA	26-14-1, et seq.	Harm or threatened harm to a child’s health or welfare through nonaccidental physical or mental injury or sexual abuse/ exploitation	All hospitals, clinics, sanitariums, doctors, medical examiners, dentists, chiropractors, nurses, school teachers and officials, pharmacists, law enforcement officers, social workers, day care workers, mental health professionals, members of the clergy unless privileged communication, or anyone else called upon to render aid or medical assistance to any child	When a child is known or suspected to be victim of abuse or neglect	Department of Human Resources	Knowingly fail to report: misdemeanor with up to 6 months jail or $500
ALASKA	47.17.010, et seq.	Physical injury or neglect, mental injury (injury to emotional well-being or intellectual or psychological capacity of child as evidenced by an observable and substantial impairment on child’s ability to function); sexual abuse/exploitation, maltreatment	Practitioners of healing arts; school teachers; social workers; peace officers; child care providers; administrative officers of institutions; paid employees of counseling or crisis intervention programs; child fatality review teams	Have reasonable cause to suspect that child has suffered harm as a result of abuse or neglect	Department of Health and Social Services	Class A misdemeanor
ARIZONA	13-3620, 8-201	Infliction or allowing of physical injury, impairment of bodily function or disfigurement, serious emotional damage diagnosed by a doctor or psychologist, and as evidenced by severe anxiety, depression, withdrawal, or aggressive behavior caused by acts or omissions of individual having care and custody of child	Physician, resident, dentist, chiropractor, medical examiner, nurse, psychologist, social worker, school personnel, peace officer, parent, counselor, clergyman/priest; any person responsible for minor’s care	Have reasonable belief minor victim of physical injury, abuse, reportable offense or neglect that is not accidental or denial of care or nourishment that caused/ allowed an infant death	To peace officer or child protective services of the department of economic security	Class 1 misdemeanor except Class 6 felony if failure involves a “reportable” offense

Page 406

State	Code Section	What Constitutes Abuse	Mandatory Reporting Required By	Basis of Report of Abuse/ neglect	To Whom Reported	Penalty for Failure to Report or False Reporting
ARKANSAS	12-12-501, et seq.	Specific incidents listed in 12-12-503 include abandonment, extreme and repeated cruelty; intentional, negligent, non-justifiable conduct constituting physical, psychological, or sexual abuse; conduct creating threat of death or permanent impairment; intentionally and without justification disciplining a child by striking on the face or with a closed fist or shaking a child	Any person; physician, dentist, nurse medical personnel, teacher, school counselor, social or family worker, day care center worker, foster care worker, mental health professional, peace officer, law enforcement official, prosecuting attorney or judge, domestic abuse advocate, clergyman, coroner	Reasonable cause to suspect maltreatment or observance of conditions or circumstances which would reasonably result in maltreatment	Department of Human Services child abuse hotline	Class C misdemeanor; willful failure to report: civilly liable for all damages proximately caused by that failure. False notification: Class A misdemeanor; 2nd offense: Class D felony
CALIFORNIA	Penal Code §11164, et seq.	Sexual abuse or exploitation as listed by incident in 11165.1; neglect; willful cruelty or unjustifiable punishment; any physical injury inflicted other than by accidental means	Health practitioner, child visitation monitors, fire fighter, animal control officer, humane society officer, district attorney, school employees, film processors, clergy, social workers, day care workers, police department employees, administrators or employees of public or private youth organizations or day camps	Knows or reasonably suspects or observes child abuse	To a child protective agency (police or sheriff’s department, county probation department, or country welfare department)	Up to 6 months in jail and/or up to $1,000 if supervisor or administrator; up to 1 yr. in jail and/or up to $5000 fine if any mandated reporter willfully fails to report and abuse results in death or great bodily injury

Page 407

State	Code Section	What Constitutes Abuse	Mandatory Reporting Required By	Basis of Report of Abuse/ neglect	To Whom Reported	Penalty for Failure to Report or False Reporting
COLORADO	19-3-301, et seq., 19-1-103	Act or omission

...