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Policy Statements- Child Abuse Reporting Laws

While agreeing that the abuse of children, both by infliction of corporal punishment and by sexual molestation, is a serious problem deserving of society's concern, CACJ believes that the current trend toward reliance on mandatory reporting laws is not an appropriate response to the problem.

Most abuse of children, both physical and sexual, occurs within the child's family, frequently within the nuclear family. This is the kind of abuse most likely impacted by mandatory reporting laws, because abuse by non-family members is typically reported, or dealt with by avoidance of the risk situation, by the family. A child is heavily reliant on its family unit for nurturing. When dysfunction occurs within the family, the prospect for resolution of problems is strongest when voluntary assistance is sought to deal with the problems.

Yet, the existence of mandatory reporting laws removes the option of voluntary treatment with the assistance of a physician or mental health professional. If a dysfunctional family seeks such assistance, the professional person must respond to the mandatory reporting requirement. (See Penal Code sections 11165-11174.3) The sweetness of the carrot (absolute civil and criminal immunity, with provision for reimbursement of attorneys' fees up to $50,000-section 11172) and the size of the stick (criminal prosecution-section 11172, subdivision (e)) create a strong incentive for reporting based upon the slightest suspicion. (The strength of this incentive of course increases the risk of false reporting, the ramifications of which are as obvious as they are monumental in negative impact on the family.)

This statutory system mandates the involvement of law enforcement officers and welfare workers. Since the seeking of assistance admits, at least by strong implication, that abuse has occurred, this foray into the judicial system typically includes the filing of a petition pursuant to Welfare & Institutions Code section 300 and often leads to criminal charges being filed against the suspected abuser. As a component of the section 300 proceedings, the child will nearly always be removed from the home at the outset, which removal frequently becomes long-term. These steps alone typically destroy any possibility that the family can again become the kind of harmonious unit which could supply the most important nurturing for the child.

Thus, the practical impact of the existence of mandatory reporting laws is to leave only two options when a child is being abused: (1) the abuse will remain secret (and usually will continue because professional assistance is precluded), or (2) the state will intervene, minimally disrupting or maximally dismantling the family structure, to remove the person(s) suspected of abuse, often placing the child outside the custody of both parents.

This effective removal of the voluntary treatment option increases the likelihood that option (1), above, will occur. Financial and other ties within a family motivate the family to avoid state intervention. In the common situation in which the breadwinner is the child abuser, the other parent (and often other siblings of the abused child) will side with the abuser. This has proved true before the advent of mandatory reporting laws, and likely is a stronger force when such laws exist. This fact of life renders the abused child's situation even more traumatic.

Further, while the state intervention option may benefit the abused child by removal from the abusive environment, the replacement police officer/social worker/court room milieu often provides a significant trauma as well. This is a compound trauma, because not only must the child frequently re-live the abuse through telling and re-telling, but also the transition from even a somewhat abusive environment into this foreign, non-family environment can provide a separate set of traumas.

CACJ believes the self-help option should be retained by the repeal of mandatory reporting laws. Balancing the benefits and burdens of such laws leads to the conclusion that the burdens are too great. With such laws, not only is the burden of the abused child increased by the greater likelihood the abuse will continue within the secrecy of the family, but also if help is sought, the legal system solution has an inherent burden of its own for the child to bear.

Child abuse is a serious and tragic problem in this society. Mandatory reporting laws are symptomatic of society's over-reliance on the legal system as a panacea for its problems, or as the scapegoat for its failures. More humane and more effective solutions, involving education and treatment, should be substituted for our current reliance on mandatory reporting and inevitable legal system intervention.

--drafted by David K. Stanley

FORUM, JANUARY/FEBRUARY 1989, Vol.16 No.1

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