On 12/9/11 I posted a dilemma entitled “the duty to report sexual abuse” in which I presented a hypothetical dilemma which raises questions associated with the law governing the duty to report child sexual abuse. In light of an interesting series of comments that the dilemma inspired, I’d like to take fresh look at the dilemma. Here it is, together with my original commentary: I recently came across an astounding scenario in a standard ethics textbook. I use the term “astounding” because it presents an example of a clear, legal problem that is in reality not an ethical dilemma at all! I’m going to paraphrase the dilemma as follows: You are a mental health professional conducting research concerning family relationships involving at least one minor child. As part of the research design you interview each family member personally. You also interview the family as a unit. During one such interview, with Mary, a nine-year-old, she tells you that her fifteen-year-old sister, Clara, has sex with her stepfather, Igor. What would you do? The answer is clearly driven by the law. Most states impose a duty on members of the public to report suspected child abuse, including sexual abuse. Even if it were not a state-imposed requirement, the legal duty to practice reasonably competently as a mental health professional–as discussed in this website– demands reporting of the incident. The comments posted by a reader raised an interesting question about whether Mary’s comments could be usable by the researcher in light of the fact that they might represent a “hearsay” statement. (A hearsay statement is an out of court statement used in court to prove the truth of the statement.) In other words, the poster was suggesting that Mary’s statements might reflect observations of her sister Clara’s abuse that are hearsay statements and therefore unusable. In our case, it is important to note that hearsay statements are often admissible during the preliminary hearing in any child abuse case in children’s court (the preliminary hearing, which usually occurs about ten days after child protective services has concluded that there is a reasonable suspicion child abuse has occurred, offers an opportunity for CPS to present a court with the evidence CPS is relying upon to prove that the at-risk child is in need of protection). IThe preliminary hearing is usually the first step in any child abuse proceeding. Therefore, Mary’s statements could have an evidentiary use if and when a child abuse proceeding were instituted. The reason hearsay could be permitted at this stage is that the court typically uses a reduced evidentiary standard — this is often referred to as the “reasonable suspicion” standard — to ensure the safety of the child at this early stage. Later on in the court proceedings when the alleged abuser has a fuller opportunity to respond to the allegations, the hearsay might well be inadmissible. All of this talk about hearsay ignores an important point: Mary’s comments about having been exposed in some way to sexual behavior could well make a mental health professional reasonably suspicious that Mary herself has been victimized. This is an important reason why it is imperative that the researcher reveal to CPS or to a police authority the things Mary has said. This is the only safe way in which the child’s comments can be investigated quickly, safely and th0roughly.
Mental Health Law Blog
It’s important to distinguish between the concepts of evidentiary hearsay – that is, what’s admissible in a court of law – and “regular” hearsay for the purposes of determining what constitutes a reasonable suspicion.
To take it out of the context of abuse, let’s consider what constitutes probable cause to effect an arrest. A police officer may arrest a man based, in part, on someone who heard that the man had committed a robbery but had not witnessed the act, even if that person’s testimony would not be admissible in court. Nevertheless, that level of rumor is usually not sufficient in and of itself to constitute probable cause, whereas the statement of a credible person who had personally witnessed the robbery might. The fact that the statement is hearsay is relevant, not because the statement would not be admissible in court, but because certain statements are inherently less credible as a result of being hearsay and therefore are less likely to give rise to probable cause or reasonable suspicion.
It may well be that the statements of the alleged victim’s younger sister would warrant a report to CPS even without any further investigation (although it is still important to ask follow-up questions to determine the basis of the sister’s belief). However, not all hearsay statements will. What if, for example, one of Clara’s peers stated to the professional, “Clara is such a slut she sleeps with all the male teachers,” and when further questioned stated that she’d heard this through a high school rumor mill from people who were not Clara’s friends? Such a report may warrant some further investigation (which itself may lead to a reasonable suspicion), but may not in and of itself be sufficiently credible to give rise to a reasonable suspicion. When in doubt as to whether reasonable suspicion exists, the law generally permits mandated reporters to conduct some further investigation, within the scope of their professional authority and training, to get more information, from the suspected victim where possible. This happens reasonably frequently in both the school and mental health context. It’s good policy as it helps CPS determine which reports are particular priorities and when contacting the parent prior to contacting the child would result in physical danger to the child.
I’m also not clear on why Mary’s mere “comments about having been exposed in some way to sexual behavior” would necessarily lead to a suspicion that Mary has been victimized. Mere knowledge by a nine-year-old that sexual behavior is going on in the house is quite common when the child has a teenage sibling, and reporting to CPS every time a nine-year-old says that her teenage sister is having sex would result in a rather stark number of younger siblings of teenagers being involved in CPS. Knowledge of sexual abuse going on in the home, on the other hand, could be very harmful, so if further questioning of Mary reveals that Mary has some reasonable basis for her statement that her sister is having sex with her stepfather then yes, reporting would be warranted both to protect the sister and to protect Mary.
I beevlie it is imperative that we look at the big picture in this event and realize the reality of child sexual abuse and its devestating affects on so many. This incident is a reflection of how no one is immune from the disease of habitual child sexual abuse. It is not always the monster lurking in the seedy parts of the community…it is a neighbor, a friend of the family, an entrusted adult. I beevlie it is important to look at the reality of what happened at Penn State and use it as an example of how critically necessary it is to educate the public on the reality of child sexual abuse. We have to remain critically diligent in our perspective of what has really happened here. It could go askew quickly and spiral frantically out of control and the true lesson and opportunity to make significant changes in how we look at this disease will be lost. As devastating as this is…as significantly impactful it is in the media…it is critically important to focus on the disease. Child sexual abuse continues to thrive in a world of silence that protects it due to the ugliness of the reality of this perversion of sexual addition. It is the silence that protected Jerry Sandusky from getting treatment…it is the silence that allowed him to continue to abuse so many others. Silence is the enemy and Penn State can bring a voice to many of us that live with the destructive scars every day of our lives.