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When must a mandatory reporter make a child abuse report?
Mandatory reporters must report a of child abuse or neglect immediately to the Statewide Central Register.11 A reasonable suspicion must be based upon "articulable facts which, when examined objectively, would lead others to the same conclusion" that a child whom they see in their professional capacity has been abused or neglected.12 Therefore, a proper report is based upon a reasonable suspicion that a parent or caregiver harmed - or allowed a third party to harm - the child. 1984) (finding a mother guilty of neglect because she should have known that her daughter was being sexually abused by the stepfather and failed to act to protect her).
In , the court concluded that a parent must know that his or her teen is engaging in sexual activity in order to consider a charge of child abuse or neglect.16 In that case, an appellate court affirmed the lower court's dismissal of charges against the parents of a 13-year-old girl whose boyfriend was 23, because no evidence had been presented to suggest the parents knew of the sexual relationship.
Additionally, recent guidance from OCFS further affirms that "no report will be registered by the Statewide Central Register where the caller fails to provide a reasonable cause to suspect that a parent was aware of sexual activity or should have reasonably been aware of the activity, absent other indications of child abuse or maltreatment."17 Situation #2: The parent or caregiver is aware of his or her teen's sexual activity.
Situation #2: The mandatory reporter fails to make a report.
On the other hand, a mandatory reporter who suspects abuse or neglect and deliberately 1 N.
New York Penal Law broadly prohibits sexual activity with a minor under the age of seventeen, commonly known as "statutory rape," even when the activity is voluntary and even when the minor engages in sexual activity with a peer who is also under 17, because a person under 17 is deemed incapable of consent as a matter of law.18 Recent guidance from OCFS makes clear that a mandated reporter should make a case by case determination that considers not only the parent's awareness but also whether the parent or caregiver's response was appropriate under the circumstances.
OCFS further clarifies two points: (a) the mere reoccurrence of the sexual activity "does not in and of itself," mean that the parent's response is inappropriate or that a report is required and (b) a parent's support of or involvement in the teen's accessing sexual or reproductive health care services may be a reasonable response, and therefore does not by itself give to a reasonable suspicion of child abuse or neglect.
This is a change from previous law, which called for a medical staff member to first report to a designated agent for the agency or institution, who then was responsible for making the report.10 3. Act § 1012 at 314 (1999) ("‘Allowing' a child to be abused includes taking no appropriate protective (or preventive) action after being warned of the danger to a child"). New York Social Services Law immunizes good faith mandatory reporters from being charged with a crime.30 However, a conflicting New York Penal Law makes it a misdemeanor if a person makes a false report of "an alleged occurrence or condition of child abuse or maltreatment which did not in fact occur or exist" to the Statewide Central Register either directly or indirectly.31 While this statute seems to state that it can be a misdemeanor to file a false report regardless of situations where the suspicion of abuse was reasonable and the report was made in good faith, no court has addressed this contradiction and it appears that the law was not originally intended to apply to mandated reporters.32 Therefore, it is unlikely that a good faith mandatory reporter would be prosecuted, even if the report turned out to be unfounded. "Persons legally responsible" for a child's care include a child's guardian, custodian (any person regularly found in the child's household) or other person responsible for the child's care at the relevant time. A cautious mandatory reporter may wish to consult an attorney before making a report. As described above, New York courts have held that most cases of voluntary teen sexual activity do not give rise to reasonable suspicion of child abuse or neglect. When a health provider does not have a reasonable suspicion of child abuse or neglect, there is no legal basis to breach a patient's confidentiality to file a report.
Situation #1: The parent is unaware of his or her child's sexual activity.