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Public Hearing Bill 19-647 the Child Sexual Abuse Reporting Act of 2012

Friday, March 23, 2012
Testimony of Deputy Attorney General Cory M. Chandler

Good morning, Chairman Mendelson, members of the Committee on the Judiciary and staff. I am Cory Chandler, Deputy Attorney General for the Family Services Division of the Office of the Attorney General for the District of Columbia (OAG), which is charged by law with serving the children and families of the District through the representation of abused and neglected children. On behalf of the executive branch of the District of Columbia, I am pleased to testify on Bill 19-647, the Child Sexual Abuse Reporting Act of 2012 (the Act).

The bill seeks to expand the definition of a "mandatory reporter" by requiring all individuals 18 and older to report suspected sexual abuse of a child under16 years of age to the Metropolitan Police Department (MPD), 911 Emergency Call Center or the Child and Family Services Agency (CFSA). The bill would, if enacted in its current form, also impose criminal penalties on any adult in the District who fails to make a report.

The Executive strongly supports the spirit of this bill as it relates to the safety and welfare of children in the District of Columbia. In particular, the Executive recognizes the very important interests being addressed by this legislation and is sympathetic to them. Additionally, I can tell you from personal experience that the District, including OAG and CFSA, works hard every day to combat the ills of child sexual abuse in the District. With that said, the bill, as currently drafted, is problematic and we cannot support it in its current draft form.

Let me begin by noting that the fact pattern represented in the Penn State controversy, which may be a reason why this bill was introduced at this time, is already addressed by the current law in the District. Current law provides that "Persons required to report such abuse or neglect shall include Child and Family Services Agency employees, agents, and contractors, and every physician, psychologist, medical examiner. . . .school official, teacher, athletic coach. . ." D.C. Official Code § 4-1321(b). (Emphasis added). The statute goes further to state that "whenever a person is required to report in his or her capacity as a member of the staff of a hospital, school, social agency or similar institution, he or she shall immediately notify the person in charge of the institution or his or her designated agent who shall then be required to make the report." So we suggest that current law is fairly strong in this area in the District.

The proposed bill would represent a dramatic expansion of the reporting obligation to make it apply to every single adult, with no exceptions or parameters. We are concerned that this approach, if adopted, would be overbroad and could threaten to create more problems than it is intended to solve. In particular, if the Council elects to go forward further with the bill, I want to highlight several additional areas of concern. 

  • Unwarranted Expansion of Criminal Liability, and Lack of Training. The bill would combine a dramatic expansion of the reporting obligation with a criminal penalty for failing to report. This is a potentially dangerous combination, particularly in the absence of a well-established training program so that adults with no professional training or involvement in the matter can have guidance in identifying what is a reportable act. If there is to be liability for persons, especially, layperson residents who fail to report, we recommend that it be limited to civil liability. In addition, the Act if it goes forward should provide for resources and for training materials to be available to those in the community trying to understand what qualifies as a reportable act. 
  • Prospect of False or Mistaken Reports, and Strains on CFSA Capacity. Currently, District law specifically identifies those persons required to report child abuse based upon knowledge obtained through a person’s professional or official capacity. D.C. Official Code § 4-1321. This proposed bill would remove the targeted approach of the current statute and essentially make all adults mandatory reporters regardless of their professional or official designation, and would criminalize the failure to make such a report. This approach, if adopted, creates substantial policy concerns. It may result in individuals making reports, out of an abundance of caution, to CFSA’s hotline when there is vague or very little suspicion of sexual abuse. Concerned citizens may make mistaken reports for fear of violating the mandatory reporting law due to a lack of training or experience in sexual abuse cases. This could also open the door to persons making false reports in bad faith. For example, there have been instances where CFSA finds itself in the midst of a custody battle between parents. There have been occasions where false or unsubstantiated reports of abuse or neglect have been made by one parent to impugn the character of another parent in hopes of getting an advantage in the pending custody proceedings. In addition, this could cause a spike in calls to the CFSA hotline, and, unless additional resources are provided for CFSA, make it difficult for CFSA to handle its call volume for abused children across a range of types of abuse, included but not limited to sexual abuse. Investigating a child sexual abuse allegation can be a traumatic experience for a child. If the bill goes forward, the Council should consider a provision that imposes penalties on those who make a report in bad faith to deter frivolous or malicious calls.

    To add, the bill proposes that reports of child sexual abuse can be made to MPD, the 911 Emergency Call Center or CFSA. The 911 Emergency Call Center is a Public Safety Answering Point (PSAP) serving as a relay point or link to MPD; therefore, any reports to 911 should be considered a report to the police. The bill in its current draft form makes a distinction between 911 and MPD that is not necessary. We submit that the bill needs to identify only two public sources for reporting, MPD and CFSA.
  • Lack of Clarity Regarding Attorney-Client Privilege—As drafted, the proposed legislation imposes the obligation to report on all adults with knowledge or reasonable cause to believe that a child is a victim of sexual abuse. The bill provides no exceptions to this rule. To our knowledge, none of the states with mandatory reporting for all persons expressly abrogate the attorney-client privilege. To the contrary, several of the states waive certain privileges such as husband-wife or doctor-patient, but expressly maintain the attorney-client privilege. Del. Ann. Code §16- 909; Fl. Ann. Stat. § 39.204; Md. Fam. Law § 5-705. To be clear, there is already as a result of professional ethics rules a duty upon an attorney to reveal a client’s confidence when reasonably necessary to prevent a criminal act that is likely to result in substantial bodily harm. D.C. Prof. Conduct Rule 1.6 (2007). The bill should be clarified to make explicit that it does not purport to abrogate the attorney-client privilege or change rules of legal ethics.
  • Lack of Clarity Regarding the Age of the perpetrator to Trigger the Duty. Finally, a clear definition regarding the perpetrator being an adult should be included in the definition. This would clarify the intent of the bill and ensure that the bill does not cover any form of child on child sexual activity— which are best addressed through clinical intervention, school discipline, or other means, but, rather, would only address sexual abuse of children by adult perpetrators. Again, thank you for the opportunity to discuss Bill 19-647, Child Sexual Abuse Reporting Act of 2012. I am happy to answer any questions you may have.