Mandatory reporting: a worthwhile cause

We should all be vigilant and protective when it comes to reporting child abuse to the appropriate authorities. However, for some professions in California, reporting is mandated by law and failure to abide by the law carries criminal penalties and potential civil liability. Pursuant to the Child Abuse and Neglect Reporting Act (CANRA), mandated reporting of child abuse applies to a laundry list of professions including healthcare professionals (e.g., doctors, nurses, and EMTs), those working in education (e.g., principals, teachers and aides), social workers, mental health professionals, firefighters and others. CANRA does not apply to lawyers or legal staff.

CANRA can be summarized as a "See something? Say something!" law. When an alleged incident occurs that involves reasonable suspicion of child abuse, the following steps must be taken by the mandated reporter: (i) they must make a telephone report to a local law enforcement agency and/or a child protective services agency immediately, and (ii) submit a written report to the agency called within 36 hours. "Child abuse" includes physical abuse, sexual abuse (including both sexual assault and sexual exploitation), willful cruelty or unjustified punishment, injury, and neglect.

In 2021, CANRA was expanded to include human resource managers and supervisors as mandated reporters. The obligation only applies to human resource managers and supervisors at companies who employ five or more people that also employ minors. Human resource managers must report all forms of child abuse, while supervisors only have a duty to report sexual abuse.

Pursuant to California Penal Code Section 11166, failure of a mandated reporter to report child abuse is a misdemeanor punishable by up to six months in county jail, a fine of $1,000, or both. This increases to one year in jail and a fine of up to $5,000 (or both) if the failure to report is willful. However, it is important to note that according to the Los Angeles County District Attorney's (LADA) office, LADA charged only one person with a violation of Penal Code Section 11166 from January 2016 through January 2021.

This means that enforcement of the law is primarily in the hands of civil lawyers. Not surprisingly, these types of cases are very difficult to work on for a variety of reasons. First and foremost, the fact patterns are tragic, often with no winners. Studies routinely show that early trauma, such as suffering abuse as a child, brings life-long psychological challenges to victims. Next, the perpetrator of abuse is often judgment proof, and moreover, since the abuser is acting intentionally and criminally, there is often no insurance coverage for their acts.

Thus, suing a mandated reporter for failing to report is often the only semblance of justice an abused child can hope to obtain. The negative cliché of plaintiff attorneys looking for "deep pockets" is certainly put into context when analyzed from this perspective.

These cases are also difficult to prove in terms of liability and causation. For a reporter to be liable under the mandatory reporting statute, the victim must plead and prove that the reporter knew or should have known of the abuse, and that reporting it would have lessened or eliminated the abuse. To prove a mandated reporter "knew or should have known" the plaintiff must prove it was objectively reasonable for a mandated reporter to suspect the abuse based on the facts the reporter actually knew of, not on facts the reporter should have discovered. Doe v. Lawndale Elementary Sch. Dist., 72 Cal. App. 5th 113 (2021). If you are confused by this phrasing, you are not alone.

It essentially means that the plaintiff's burden is to prove that the mandatory reporter actually knew of the abuse, or actually knew of facts that a reasonable person would conclude was abuse. This begs the question: How do you prove what the mandatory reporter actually knew? It goes without saying that the reporter will deny seeing or learning anything that put them on notice of abuse. Written reports by the mandated reporters sometimes, but rarely, exist.

In the Lawndale case, a male music teacher groomed and sexually assaulted a 13-year-old female student. The plaintiff had testimony from other students that the music teacher was routinely engaging in inappropriate behavior with the plaintiff and other victims for many years on school property. The Court concluded that, at least in the context of a school, the plaintiff needed evidence that the inappropriate behavior was occurring in front of other school district employees. Id. at 179-180. This type of evidence would apparently satisfy the standard of "actually knew of facts" based on circumstantial evidence.

To help overcome this difficult standard, it is a good idea for plaintiffs to plead and prove other causes of action when possible. Plaintiffs up against a private entity should plead general negligence as well - specifically that a reasonable person in the defendant's shoes would have noticed the abuse and done something about it. If your targeted defendant is a government entity or employee, look for a common-law duty to prevent abuse in the context of a special relationship.

Although difficult both emotionally and legally, these are certainly righteous and worthwhile cases for both the victim and society at large. There is no class of persons more at risk and vulnerable than children because they often do not fully comprehend they are being abused. CANRA exists to protect children, which is something we can and should all support. It is often said that it takes a village to raise a child; but it also takes a village to protect a child.