Duty to Report Child Abuse

One of the most important duties imposed on certain classifications of school employees is the duty to report suspected cases of abuse and neglect. It can also be one of the most divisive, since certain school employees are required by law to report suspected abuse, but can also be the subject of another staff member's report of abuse.

The Child Protection Law (CPL), MCL 722.621, et seq, imposes reporting responsibilities on certain public school employees and also specifically includes a "teacher or teacher's aide" within the category of individuals who could be determined responsible for "child abuse" as defined in the CPL. Given these provisions, it is essential that school employees be aware of their responsibilities under the CPL.

Who must report

All medical practitioners, social workers, law enforcement officers, school administrators, school counselors, psychologists, audiologists, teachers, and regulated child care providers who have reasonable cause to suspect child abuse or neglect must immediately file a report with the Family Independence Agency (FIA), previously known as the Department of Social Services.

In addition to the above parties who must file a required report, any person who has reasonable cause to suspect child abuse or neglect may report the incident to the FIA or a law enforcement agency.

Whose actions must be reported?

Suspected child abuse must be reported by those school employees previously listed if the suspected child abuser is:

• a parent or legal guardian;

• a person responsible for a child's welfare (defined in section 2(h) of the CPL as a parent, legal guardian, person over 18 residing in the child's home, or owner, operator, volunteer, or employee of a child care organization or adult foster home);

• a teacher or teacher's aide.

The classifications of covered persons contained in section 2 of the CPL raise a number of questions. Who is covered by the phrase "teacher or teacher's aide?" Are professional school employees such as administrators, counselors, social workers, nurses, and therapists considered "teachers" within the meaning of the statute?

Who is "a person responsible for a child's welfare?" The statute defines this individual, among others, as a person 18 years or older who resides for any length of time in the same home in which a child resides. How long is "any length of time?" Does the occasional overnight stay by a boyfriend or relative meet this standard? The statute gives no guidance, but chances are that the FIA will take an expansive view of the definitions so that the CPL is given the broadest coverage possible.

Past conduct

Both the FIA and county prosecutors have taken the position that persons required to report are not relieved of that responsibility because the alleged abuse has occurred in the past, or was perpetrated by an individual who once was within the coverage of the law but is no longer. Whether the abuse was in the past or is ongoing, members should report and let the FIA or the police determine the need for action.

Reasonable suspicion

"Reasonable cause to suspect abuse or neglect" does not entitle the prospective reporter to weigh the evidence and make a determination of whether or not abuse occurred. In People v Cavaiani, 172 Mich App 706 (1988), the Michigan Court of Appeals found that the "reasonable cause" standard was not unconstitutionally vague, and it upheld the filing of criminal charges against a therapist who failed to report charges of sexual abuse made by his minor client. The court concluded that the therapist had reasonable suspicion once the child told him of the alleged abuse, even though denials by family members led the therapist to conclude that the complaint was not well founded. The alleged victim's statement, even if challenged by others, constitutes "reasonable suspicion." The court stated:

"While defendant is free to decide that the victim's allegations are untrue for purposes of rendering professional treatment, he is not free to arrogate to himself the right to foreclose the possibility of a legal investigation by the state."

A teacher or other school employee required to report should also be reminded that all privileges, except the attorney-client privilege, are abrogated and, therefore, cannot be used as a defense for failing to file a report if so required. The abrogation includes such privileges as teacher-student, doctor-patient, psychologist-patient, and social worker-patient.

Procedures for reporting

Any person required to make a report to the FIA, who has "reasonable cause to suspect abuse or neglect," must make an immediate oral report, by telephone or otherwise, to the FIA and must file a written report within 72 hours after making such an oral report.

The statute also allows an individual to "cause an oral report to be made." Generally, this permits an individual to initiate a report by contacting another person within the school district who makes the actual report to the FIA. Ultimate responsibility to see that the FIA gets the information, however, remains with the individual initiating the report.

Reporter's immunity from liability

The identity of a person making a written report is confidential and will only be made available under limited circumstances, such as to a child protective or law enforcement agency investigating suspected child abuse or neglect.

A person acting in good faith who makes a report or cooperates in an investigation shall not be penalized or dismissed and shall be immune from civil or criminal action due to a report made in good faith. Conversely, a person who knowingly and maliciously makes a false report is guilty of a misdemeanor.

A FIA worker or other individual who improperly discloses the name of a person filing a report of suspected abuse or neglect may be criminally prosecuted for a misdemeanor and is civilly liable for damages proximately caused by the dissemination of information. (1980 Opinion of the Attorney General, No. 5115, p. 1075)

Failure to report

Section 13 of the CPL imposes two penalties on individuals who fail to make reports as required. First, a person who is required to report child abuse or neglect and who fails to do so is civilly liable for damages caused by the failure to report. In other words, if the abuse is current and ongoing, failure to act can render the individual liable for any damage caused by the abuser after that individual had knowledge but failed to act.

In addition, a person who is required to report and knowingly fails to do so is guilty of a misdemeanor, punishable by imprisonment for not more than 93 days, a fine of not more than $100, or both.

The duty to report adult abuse

Another Michigan statute, MCL 400.11, et seq, imposes a similar reporting requirement on persons "employed, licensed, registered, or certified to provide . . . educational . . . services" when that person "suspects or has reasonable cause to believe that an adult has been abused, neglected, or exploited." This requirement is relevant to our members primarily due to the presence in classrooms and special programs of disabled students over the age of 18. An adult is defined in the statute as a "vulnerable person not less than 18 years of age who is suspected of being or believed to be abused, neglected, or exploited." "Vulnerable" is defined, in part, as "a condition in which an adult is unable to protect himself or herself from abuse, neglect, or exploitation because of a mental or physical impairment."

The statute requires that an immediate, oral report be made to the FIA in the county in which the abuse, neglect, exploitation, or endangerment is suspected of having occurred. A written report may be filed thereafter. The identity of the reporting person is confidential, subject only to disclosure with that person's consent or by judicial process. A person who fails to make a report as required by the statute is civilly liable for the damages caused by the failure to report and a fine of not more than $500.

When in doubt, report!

It is important for MEA leaders, staff, and members to understand that, given the broad scope of conduct covered by the CPL, members should continue to report any suspected abuse of students. The lack of precision in the statutory language may well provide several defenses for the MEA member who is later sued civilly or charged criminally for failure to report. Nevertheless, a prudent member should avoid the possibility of civil or criminal liability by taking the position that "when in doubt, report." Several considerations lead to this advice:

• As previously noted, portions of the CPL are either sufficiently ambiguous or so poorly drafted that members required to report should not expose themselves to potential criminal or civil liability based on a post-hoc interpretation. Make the report and let the FIA decide whether it has jurisdiction.

• The FIA and many county prosecutors have a tendency to take an expansive view of the CPL, particularly in hindsight.

• In many cases, the identity of the abuser is not known at the time a report must be made. Thus, a member may be uncertain as to whether the abuser is covered by the CPL. Report anyway -- don't take the risk of later discovering that the conduct was subject to the reporting requirements.

• Even if the actual abuser is not covered by the CPL, there may be a subsidiary offense or second offender who is covered. For example, sexual abuse by a nonresident boyfriend or girlfriend may not be covered by the CPL. However, the parent or legal guardian (who is covered) may be guilty of sexual exploitation or child neglect for acts of commission or omission with respect to the abuse by the boyfriend or girlfriend.

Finally, many members believe, legitimately, that as a professional who works with children on a daily basis, they have a special responsibility or moral obligation to report abuse or neglect of children regardless of the identity of the perpetrator. This attitude is appropriate. However, there is a clear difference under the law between a self-imposed moral obligation and a legal duty. A general moral obligation or decision to "play it safe" by reporting all abuse is not a legal duty. Failure to meet this self-imposed standard in a particular case does not result in civil or criminal liability.

Tips for members and local associations

1. Make sure that the school administration adequately informs—and reminds—staff of the reporting requirements of the law and has clear procedures for reporting.

2. Do you know what constitutes child abuse or neglect? What are the warning signs? If not, consider an in-service session on this issue using local FIA, child advocacy, social work, or probate court resources.

3. In cases where one member has reported another member for suspected abuse, DO NOT take sides or add to the internal divisions within your unit. Even if you believe the reporting member was mistaken and the association is defending the alleged offender, recognize -- and encourage your membership to recognize -- that:

• the reporter may have had a legal duty to report;

• the standards for reporting are broad, vague, and ambiguous; and

• any staff member with a duty to report is well advised to resolve doubts in favor of reporting.

If you have any questions concerning the public school employee’s duty to report child abuse, please contact your UniServ Director.

Updated: February 19, 2009 6:40 PM