The Penn State Scandal and Florida's Child Abuse Reporting Laws, by Jeremy T. Simons, The Patch, November 27, 2011

The Penn State Scandal and Florida's Child Abuse Reporting Laws

By Jeremy T. Simons
The Patch
November 27, 2011

http://landolakes.patch.com/articles/the-penn-state-scandal-and-florida-s-child-abuse-reporting-laws-1ac223c4

As the NCAA football season winds down, the biggest story of the year is not who will win the BCS Championship, where Urban Meyer might be coaching next (does anyone know what a buckeye is anyway?), or even where Andrew Luck will be playing next year.

The entire 2011 college football season will forever be remembered for the child abuse scandal at Penn State involving former assistant coach Jerry Sandusky. Of course, Sandusky is innocent until proven guilty, but it appears he is already guilty in the court of public opinion. Let me be clear on my position: child sexual abuse is a disgusting, despicable and unforgivable act. However, this is not an article on the act of child sexual abuse by the abuser. This is an article on who Florida law charges with protecting children when it is suspected a child has been abused.

There has been an equal amount of media attention directed towards Penn State, its athletic department personnel (including of course coach Joe Paterno) and other members of the football staff for failing to bring the suspicions of Sandusky's alleged child sexual abuse to the proper reporting agency. Specifically, there is significant attention to one graduate assistant's personal observation of alleged child sexual abuse in 2002 and what the graduate assistant, the football program, the athletic program and the school itself did in response.

What does Florida law require in this situation? Here is an outline of the basic structure of child abuse reporting requirements in Florida. In other words, here is what the graduate assistant, Paterno and Penn State would likely have been legally required to do if this were a Florida institution.

EVERYONE HAS A DUTY TO REPORT CHILD ABUSE

According to section 39.201(1)(a), Florida Statutes:

Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed subsection 2.

The first term that should jump out at you is "any person." Any person includes you, me, teachers, counselors, doctors, hair stylists, carpenters, brothers, sisters, coaches, and graduate assistants. As such, if any person has actual knowledge or "reasonable cause" to suspect there is child abuse, that person must report the abuse.

At first glimpse, under Florida law, the graduate assistant who actually saw the alleged child abuse by Sandusky had an affirmative obligation to notify the Department of Children and Families. Our analysis is not over, however. In the Penn State case, there are no allegations that Sandusky was a parent, legal custodian, or caregiver of the child. We also know that the graduate assistant supposedly told Paterno and perhaps other school officials.

YOU MUST REPORT CHILD ABUSE REGARDLESS OF WHO THE ABUSER IS

Florida law included the term "other person responsible for the child's welfare" as an apparent catch-all. According to Chapter 39.01, Florida Statutes, other people include adult sitters of minor children. As such, I believe that the law tries to place special emphasis on reporting child abuse caused by parents, child-care employees, school employees, and so forth. However, if you have reasonable cause to suspect child abuse by anyone, you must report the abuse.

REPORTS MUST BE MADE TO THE DEPARTMENT OF CHILDREN AND FAMILIES

The statute requires that reports be made to the Department of Children and Families. Absent in the definition of "Department of Children and Families" are any alternatives. We do not see the terms "your immediate supervisor" or "your next of kin" or "the child's parents" as an alternative reporting entity. Florida law is clear: if you know or have reasonable cause to suspect there is child abuse, and you ask yourself who to tell, call the Department of Children and Families. Do not believe that telling your neighbor, the head coach or the school will suffice.

KNOWLEDGE THAT SOMEONE ELSE ALREADY REPORTED THE INCIDENT DOES NOT EXCUSE YOU

Additionally, under Florida law, if you suspect child abuse, you must report the abuse even if you know or suspect that someone else already did. Florida encourages and mandates that every single person that knows or has reasonable cause to suspect there is child abuse must report it. Multiple reports are encouraged!

YOUR PERSONAL OPINION WHETHER ABUSE HAS ACTUALLY OCCURRED OR NOT IS OF NO IMPORTANCE

What if you have "reasonable cause" to suspect there is child abuse but you don't actually suspect it has occurred? This situation occurs all the time. Take the following situations into consideration:

You are a medical doctor who gives a child a physical and you notice unusual bruises that appear to be more severe that simply rough-housing or allowable parental discipline. You think the bruises were caused by a spanking, but they seem too dark for reasonable parental discipline and in a shape not consistent with a child simply being clumsy.

You are a teacher and the child comes in with an unusual bruise on the child's eye. However, you know the parents and they would never do anything to this child in your opinion. In fact, they are the most caring and loving parents you have ever known and you in fact strive to model your parenting after them.

Your child is at a youth camp and the director is a pastor. Your young child comes home with a story of inappropriate touching and can describe with some degree of detail where he or she was when it happened. You assume that the child is mistaken because the pastor could never engage in such conduct.

These are based on real stories that have been in the paper or before the courts. In every scenario, you as the receiver of the information have an affirmative duty to report the alleged abuse even if you do not suspect it actually happened. Your personal belief on whether the abuse actually occurred or did not occur does not matter whatsoever.

WHAT IS "REASONABLE CAUSE" TO SUSPECT CHILD ABUSE?

The one part of this article that gives me so much trouble and concern is the use of the term "reasonable cause" to suspect that child abuse occurred. What is "reasonable cause?" I am a father of two, and my children are very active and honestly a bit clumsy at points. I cannot report every bruise my daughter gets from falling on the playground.

One of the translations that I tend to use that makes some sense of the perfectly vague legalese term "reasonable cause" is that it is something above a hunch where the person has some specific information about the alleged abuse. If my daughter has a handprint on her bottom from a teacher, I would report the incident, especially if she told me her teacher did it. If she has a scrape on her knee and said her teacher pushed her during a soccer game at recess when the teacher was playing too, I may have to reconsider my position.

EVEN IF YOU HOLD A PROFESSIONAL POSITION WHERE YOU LEARNED OF THE INFORMATION UNDER RULES OF CONFIDENTIALITY OR PRIVILEGE, YOU MAY STILL HAVE TO REPORT THE ABUSE

Some professionals have been in trouble either criminally or professionally because they failed to report the alleged abuse based on a privilege. There are many types of privileges that prevent a professional from disclosing certain information disclosed to them: the attorney-client privilege, the counselor-patient privilege and, among others, the pastor privilege.

A legal confidentiality privilege generally protects the disclosure of certain bad or harmful information from public or legal disclosure so that the disclosing party can be honest in seeking certain services. For example, if an attorney had a DUI client, and the DUI client said the attorney, "I am an alcoholic" under privileged circumstances, then that is not admissible in court.

Likewise, if there is a husband who discloses to his therapist that he had an affair, and there is an issue in a divorce involving the affair, the therapist could not disclose this information.

The privileges that otherwise prevent disclosure of this type of information does not usually apply to child abuse, elderly abuse, or about the future commission of a crime. If an attorney, counselor, therapist, doctor, pastor or other profession learns of abusive situations and has a reasonable cause to suspect it is true, they have to still report the incident.

IF YOU MAKE YOUR REPORT IN GOOD FAITH, YOU CANNOT GET IN TROUBLE IF THERE IS NO CHILD ABUSE

I will be the first to admit that there is no fine line between what is reasonable cause to suspect child abuse and what is not. If you are having trouble deciding, please report the incident.

You will have immunity from any repercussions so long as you make the report in good faith. If you report a deep bruise and the Department of Children and Families investigates and determines that the bruise was caused by a playground accident, you are safe. If you don't report the deep bruise and it is found out that it was a result of child abuse, you can get in trouble.

THE MORAL OF THE STORY

This gets us back to the moral of the story behind Penn State. Sandusky will get his day in court. I anticipate it will not turn out well (did you see the interview with Bob Costas?). However, one reason why the Penn State Board of Trustees may be cleaning house with its personnel and football program is because those who knew or had reasonable cause to suspect the child sexual abuse occurred failed to err on the side of caution.

For child protection, let us accept that it takes a village to raise a child. I am not certain what percentage of child abuse investigations are closed with a finding of no abuse. I anticipate that a large percentage of reported child abuse incidents are closed without a finding of abuse. But why take the chance? Reporting suspected child abuse is not an attack on the alleged abuser, but an affirmative legal and moral obligation to protect our youth.

The Department of Children and Families can be contact in the following ways:

Phone: 1-800-96-ABUSE (1-800-962-2873)

Fax: 1-800-914-0004