Educators have unique role in reporting suspected abuse

A teacher’s caring questions are not interrogation and must be treated differently than investigative queries.

A recent U.S. Supreme Court decision on child abuse presents an opportunity to understand the Court’s view about educator responsibilities as mandatory child abuse reporters.

Educators play a vital role in protecting children from abuse and neglect. Because children spend so much time in school, educators are often the first adults to notice if something seems amiss.

Child abuse and neglect cut across all socioeconomic classes and ethnic and racial groups. They remain a pervasive and persistent threat to our nation’s children. In 2013, an estimated 679,000 children were victims of abuse or neglect. In that same year, 1,520 children died from abuse and neglect — on average, about four children a day — according to the U.S. Department of Health and Human Services.

All U.S. jurisdictions require educators to report suspected child abuse and neglect. New Jersey and Wyoming go one step further and require anyone with reasonable cause to believe there is abuse and neglect to report it to law enforcement or child protective services (N.J. Ann. Stat. § 9:6-8.10; Wyoming Ann. Stat. § 14-3-205).

Educators are not required to be certain that abuse or neglect is occurring before reporting their concerns. Within the professional setting, if you reasonably suspect or have good reason to believe a child is being abused or neglected, you have an obligation to report it to officials. Reports should be made to local child protective service, law enforcement, and school administrators. Most school policies provide specific information on how to file a report with local child protective services.

All jurisdictions protect teachers from legal liability even if no abuse or neglect had taken place, as long as the report was made in good faith. Further, most jurisdictions will protect the identity of the reporter. On the other hand, failing to report when one should have done so can have significant consequences. First, a child may be in danger. Second, failure to report would violate district rules requiring child abuse reporting. Finally, most jurisdictions have penalties or fines and even possible jail time or license suspension for failing to report.

Ohio v. Clark

The fact pattern in Ohio v. Clark, 576 U.S. (2015) is one of those horrible settings for a pair of children. L.P. and A.T. (children are usually referenced by initials in legal proceedings to protect confidentiality) were in the care of their mother’s boyfriend and “pimp,” Darius Clark (aka Dee), while their mother was out of town engaged in prostitution. While she was gone, Clark took L.P. (age 3 at the time) to preschool where a teacher noticed his swollen and bloodshot eye. He told the teacher he had fallen. The teacher talked to him further and noticed other red marks on his skin. She asked L.P. “Who did this?” L.P. told her Dee had done it. The teacher took L.P. to her supervisor who lifted L.P.’s shirt revealing further injuries. The teacher called the local child abuse hotline about the suspected abuse. Although concerned, the school allowed Clark to pick up L.P. from the school at the close of the day. Based on the school report, the following day, a social worker located the children at Clark’s mother’s house and took them to the hospital where a doctor found further injuries indicative of child abuse. L.P. had belt marks and bruises all over his body. His 18-month-old sister had a burn on her cheek and patches of her hair had been ripped out of her head. Clark was indicted on felony charges for assault, child endangerment, and domestic violence. A jury found him guilty and sentenced him to 28 years in prison.

Clark appealed the conviction claiming the introduction of L.P.’s statements into evidence, without L.P. testifying in trial and standing for cross-examination, violated his constitutional right to confront witnesses against him. The Ohio Supreme Court agreed with Clark and reversed his conviction. The court’s rationale was that L.P.’s statements had been given to a teacher who was required to report suspected child abuse and was acting as a state agent for purposes of investigation and prosecution of child abuse. As such, the results of the “investigation” could not be used in trial without putting the child on the stand to testify directly and be available for cross-examination.

The U.S. Supreme Court unanimously reversed the Ohio Supreme Court, holding that if the primary purpose of gaining the child’s statements is to assist in an emergency and not to gain testimony for an anticipated trial, the statements can be used in evidence without the direct testimony and cross-examination. But a witness’s statement alone cannot be used in evidence if the primary purpose of the interrogation was for the purpose of establishing evidence that would be used in a later criminal proceeding. In other words, the statement cannot be used if the primary purpose of the conversation with the witness was to “create an out-of-court substitute for trial testimony,” the court said.

The U.S. Supreme Court also found that the primary purpose of the teacher’s conversation with L.P. was not to create an anticipated court record for a child abuse hearing, even though the teacher was required by state statute to report suspected child abuse. Her conversation with L.P. was spontaneous and in genuine response to her concern for the child’s health and welfare. The conversations with L.P. were “primarily aimed at identifying and ending the threat” to his safety. Teachers were concerned and considering whether they needed to intervene immediately, not knowing who actually perpetrated the violence. The Court found that the teachers were not acting as police officers even though they carried out their obligation to report suspected abuse to state officials.

The Court recognized the important relationship between teachers and students and how that differs from the relationship between the police and citizens.

[Clark] emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L.P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L.P. and remove him from harm’s way. [M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

In sum, the U.S. Supreme Court’s decision underscores the important role educators play in protecting children from abuse. Educators are not acting as official investigators or police officers in these situations. The responsibility is not to conduct a medical exam to determine if in fact abuse occurred. The responsibility is not to interrogate or apprehend a possible suspect. The responsibility is to the child — to do as much as possible to protect him or her from the unfortunate harm that may occur.

For more information about mandatory reporting . . .

Child Welfare Information Gateway. (2014). Mandatory reporters of child abuse and neglect. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau. www.childwelfare.gov/topics/systemwide/laws-policies/statutes/manda/

Definitions of abuse and neglect

Physical abuse is intentional physical injury. Physical discipline is not considered abuse if it is reasonable and does not injure the child.

Sexual abuse includes actual physical sexual actions, allowing another to engage in sexual conduct with a child, or making sexual images of a child.

Emotional or psychological abuse is a pattern of behavior that impairs a child’s emotional development or sense of self-esteem. Sometimes, emotional abuse is more like neglect when a caretaker withholds attention, support, or guidance.

Neglect occurs when a caregiver fails to provide for a child’s basic needs by withholding food, medical care, education, or does not provide appropriate care and supervision. A family’s cultural values, religious beliefs, standards of care in the community, and poverty may cause children to be cared for in different ways. But when a child’s health or safety is at risk, professional intervention may be needed. When a child’s parent’s identity or whereabouts are unknown, the child has been left alone in circumstances where the child suffers serious harm, or the parent has failed to maintain contact with the child or provide reasonable support, there may be abandonment or neglect.

Citation: Underwood, J. (2016) UNDER THE LAW: Educators have unique role in reporting suspected abuse. Phi Delta Kappan, 97 (5), 76-77.