Contra Costa DA, Concord police chief, others recommend reviewing child abuse reporting law, by Matthias Gafni, Mercury News (May 18, 2014)

Contra Costa DA, Concord police chief, others recommend reviewing child abuse reporting law

CONCORD -- The Contra Costa District Attorney's Office charged Woodside Elementary teacher Joseph Martin with 150 counts of molestation, but because of difficulties with the law, it was much trickier deciding whether to prosecute his bosses for possibly failing to report the alleged child abuse.

Prosecutors say their hands were tied because the "mandated reporting" law's language creates a narrow one-year statute of limitations window that had closed.

Tina Jones, a Concord mother of two alleged victims, and others, including the district attorney and Concord police chief, say the law's restrictive wording stymies prosecutions. They say it should be reviewed and, if necessary, changed.

"For many of the families in this, it's just another level of victimization ... to have no legal ramifications for (district employees) is so frustrating," Jones said. "I think a one-year statute of limitations is ridiculous."

School employees, among other people who work with children, are considered "mandated reporters" required by law to immediately report suspicions of child abuse. Failure to do so is a misdemeanor punishable by up to six months in jail and a $1,000 fine.

Critics, however, say the language in Penal Code section 11166 (c) makes prosecuting failures to report nearly impossible. The statute of limitations is one year, but -- as is the case in many school abuse cases -- law enforcement often does not find out until long ï»¿after the one-year expiration date for misdemeanor prosecution has passed.

In a confusing twist, the window can be extended until one year after law enforcement discovers the failure to report, but only if prosecutors can prove that the person who failed to notify police actually knew rather than suspected the abuse was taking place, a legal threshold that it extremely difficult to prove.

The steep burden of proof helped kill any chance at prosecuting Martin's bosses at the Mt. Diablo school district for reporting failures. Martin, who has been charged with molesting 14 Woodside Elementary students, was placed on administrative leave in April 2013 and arrested in June. He has pleaded not guilty, and his trial is scheduled to begin May 27.

Contra Costa District Attorney Mark Peterson said the law should be reviewed and suggested it be changed.

His office considered filing charges against the principal and other employees for failures to report accusations made against Martin in 2006, when a teacher first alerted the principal that she walked in on Martin and a boy in a classroom hours after school let out, with their shoes off.

Other teachers also notified the principal of inappropriate behavior involving Martin. But Peterson said the statute of limitations restrictions rendered much of the case moot.

After making that decision, Peterson met with his county's school superintendents to reinforce reporting responsibilities.

"Should they have reported to police? Yes," Peterson said of Mt. Diablo administrators. "That's where the difficulty lies, in the failure to go to police. Let them handle it; it's what they're trained to do."

Concord police Chief Guy Swanger, whose agency investigated Martin and school administrators and nearly had to issue a search warrant to get district documents, said a review of the law "sounds reasonable."

"In general, I think crimes involving children should have longer statute of limitations," he said.

In March, Swanger testified in Sacramento on behalf of a bill aimed at strengthening reporting responsibilities.

"One of the most complicated cases to report is on one of their own, not when it's parents or someone associated with the school," Swanger said of education employees.

The law makes prosecutions extremely rare, however. In November 2012, a Santa Clara County jury convicted O.B. Whaley Elementary School Principal Lyn Vijayendran for failing to report a student's graphic allegations of abuse by teacher Craig Chandler. It was the county's first conviction for the misdemeanor.

In Vijayendran's case, she was charged within a year of her inaction, leaving prosecutors a lower burden of proof to meet -- that she had "reasonable suspicion" of abuse.

"They're not easy cases," said prosecutor Alison Filo, who tried the case. "The people are often likable ... and jurors don't want to convict people for negligence especially when there's no criminal benefit."

Bill Grimm, senior attorney at Oakland's National Center for Youth Law, said he could see the challenges the district attorney faced in prosecuting the Concord principal.

"It does bother me that a person in her authority as principal, who is charged with protecting children on campuses, will not suffer consequences," Grimm said, "... because the consequences of not reporting were unbelievably tragic."

mandated reporting statute of limitations

Under California Penal Code 11166 (c), the burden of proof changes for the misdemeanor if you want the one-year statute of limitations to begin when the crime is discovered by law enforcement. The threshold goes from proving a reporter "reasonably suspected" child abuse to if the abuse was "known" by the reporter. Here's the code section:
(c) A mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine. If a mandated reporter intentionally conceals his or her failure to report an incident known by the mandated reporter to be abuse or severe neglect under this section, the failure to report is a continuing offense until an agency specified in Section 11165.9 discovers the offense.