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