Added: Kenn Marino - Date: 05.03.2022 10:27 - Views: 33861 - Clicks: 3985
New York laws about "statutory rape" and child abuse reporting are confusing. This list of frequently asked questions FAQ describes when to make a report to the Statewide Central Register of Child Abuse and Maltreatment the reporting hotline for child abuse and neglect based on a minor's sexual activity. This memorandum is not intended to provide individualized legal advice. A mandated reporter or young person who faces a specific legal problem should consult with an attorney. New York's child abuse reporting law mandates certain professionals to file a report when they either have reasonable cause to suspect or become aware of abuse or maltreatment neglect committed by a "parent, guardian, custodian or other person legally responsible" hereinafter referred to as "parent or caregiver" for 's care.
Harms committed by strangers or peers are therefore not mandated reports, unless a parent has allowed a third party to harm the child. The word "allow" means that 's parent or caregiver knew or "should have known about" abuse to the child by a third party and "did nothing to prevent or stop it. Mandatory reporters are health and educational professionals who are legally required to report suspected cases of child abuse or neglect to the Statewide Central Register when they have a reasonable suspicion that whom they see in their professional capacity is an abused or neglected child.
Note: A provision added in now requires the mandated reporter to personally report suspected child abuse to the Statewide Central Register and inform the director of his or her agency or institution. This is a change from law, which called for a medical staff member to first report to a deated agent for the agency or institution, who then was responsible for making the report. When must a mandatory reporter make abuse report?
Mandatory reporters must report a reasonable suspicion of child abuse or neglect immediately to the Statewide Central Register. Social service workers who are either employed by or have contracts with local social service districts are under an additional obligation to report child abuse or maltreatment if a third party comes to them in their official capacity and provides the social worker with information that, if true, would render abused or maltreated.
Should a mandatory reporter file abuse report if he or she learns that a minor is engaged in a sexual relationship with a parent, guardian or person legally responsible -even if the minor says that it is consensual? A minor engaging in a sexual relationship with a parent, guardian or person legally responsible for their care -even if the minor considers the relationship consensual-is a proper basis for abuse report. Can abuse or neglect report be made against the parent or caregiver solely on the grounds that a teen in their care is sexually active?
No , absent other allegations of abuse or neglect, a minor is not an abused or neglected child merely because she or he is sexually active. Generally, there is no abuse or neglect if a parent or guardian is unaware of a teen's sexual activity. In Matter of Toni D , 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.
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. Situation 2: The parent or caregiver is aware of his or her teen's sexual activity. The phrasing of the child abuse reporting law has confused some mandatory reporters about their duty to file a report in cases where the parent is aware of a minor's voluntary sexual activity.
Under the child abuse reporting law, caregivers who allow a sexual offense to be committed against may be considered abusive or neglectful. 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. 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.
New York courts that have considered the question of whether a parent's knowledge of a teen's sexual activity constitutes child abuse have found that it is not child abuse for a parent to know that a minor child is sexually active if they have responded appropriately under the circumstances. For example, in In re Leslie C. The court dismissed the charges and concluded that Leslie's sexual activity and pregnancy did not support abuse finding against her mother.
The court found that while statutory rape laws serve a strong social policy purpose, child abuse liability cannot reasonably be extended to the parents of all sexually active minors. In summary, parents of sexually active or pregnant minors should not automatically be reported for suspected child abuse or neglect, even if they know of such activity. Should a mandatory reporter file abuse report against the parents of a sexually active minor solely on the basis of the child's sexual activity with an older partner?
In order to report a possible case of child abuse or neglect, a mandatory reporter must have a reasonable suspicion that such abuse or neglect is occurring. While the age of the minor may be taken into in determining whether sex was voluntary, a conclusion should not be based solely upon the age difference between the partners. In Leslie C.
The court left open the question of "whether, on different facts, an abuse finding should be made. Therefore, health care, educational and other facilities should not impose policies requiring blanket reporting of all sexually active or pregnant teens to the Statewide Central Register because a determination of reasonable suspicion of child abuse should be made on a case by case basis depending on the specific circumstances of a situation.
How does a health provider's duty of confidentiality affect the reporting obligation? Most health care providers are prohibited from disclosing information about a patient learned in their professional capacity without the patient's permission, unless otherwise required by law. 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.
A health care provider or other professional with confidentiality obligations who makes abuse report without reasonable suspicion of abuse or neglect commits professional misconduct. This can subject such providers to professional sanctions for breaching patient confidentiality, in addition to potential liability for committing the crime of false reporting see Question 9, below. Should a mandatory reporter report teen sexual activity to law enforcement or the police as statutory rape without the patient's permission?
Even though the minor may be the victim of a statutory sex offense, there is no blanket requirement that all crimes be reported to the police. Hospital policies that mandate or permit reporting of "statutory rape" to the police or to child protective services without further evidence of abuse also make the hospital vulnerable to a lawsuit. Can a mandatory reporter be sued or charged with a crime for making or failing to make abuse report? Situation 1: Penalties for mandatory reporters who make good faith, false or negligent reports. A mandatory reporter who makes abuse report in good faith cannot be sued by a parent for injury to his or her reputation.
Although good faith mandatory reporters cannot be sued, it is unclear whether a good faith mandatory reporter who incorrectly reports suspected abuse can be charged with a crime for making a false report. New York Social Services Law immunizes good faith mandatory reporters from being charged with a crime. A cautious mandatory reporter may wish to consult an attorney before making a report.
On the other hand, a mandatory reporter who suspects abuse or neglect and deliberately fails to report it may be guilty of a class A misdemeanor and can be sued for damages resulting from the failure to report for example, the continued abuse of the child. A caregiver is guilty of child neglect when he or she fails to exercise substantial care, and thus causes or creates a substantial risk of physical harm to the child or causes a substantial reduction in the child's psychological or intellectual functioning.
See In re Catherine G. Monroe, F. However, abuse committed by a school employee against a student in a school setting is governed by another set of laws. School employees must report any allegations of such abuse to school authorities, but not to the Central Register. Law, Art. Richmond Co. Laws of N. See also , , F. Paul's United Methodist Nursery Sch. Nassau Co. Alpert, J. Brooks , 88 A. The information that is provided to the social service worker should be accepted at face value, and should be reported to the State Central Register so long as it would constitute child abuse assuming it were true.
The of offenses are based on the ages of the participants and the type of sexual activity involved. Because New York law provides that persons 16 years old and younger generally do not have the capacity to consent to sexual activity, anyone under the age of seventeen who engages in vaginal, anal or oral sex is the victim of at least the misdemeanor crime of sexual misconduct, and may be the victim of a felony sexual crime depending on the age of his or her partner.
However, it is important to remember that this penal law scheme does not automatically implicate mandatory reporting obligations. Courts have found that a statutory sex offense based on a minor's voluntary activity does not in and of itself constitute abuse or neglect by the parent or caregiver. See cases cited infra note See also N. Providers who breach confidentiality without patient authorization may be sued by their patients for resulting damages.
See, e. Clinger , 84 A. For example, New York law mandates that hospital workers report to the police injuries involving firearm discharge or life-threatening stab wounds. Garden City Alarm Co. Courts have also defined "gross negligence" as involving egregious conduct. Gandianco v.
Sobol , A. Board of Regents of University of State , A. For example, in Vacchio , the court held that a teacher was not necessarily immune from liability because her immediate reporting of a student's black eye without first inquiring as to the cause of the black eye could support a finding of gross negligence, and thus was made without "reasonable suspicion" that child abuse had occurred.
However, "reasonable suspicion" is a far lower standard than certainty. In Kimberly S. Bradford Cent. On the mistaken theory that the uncle was not reportable as a "person legally responsible" for the child, the teacher did not report the allegation, and the student continued to spend her school vacations at her uncle's house.
The appellate court ruled that the teacher could be held liable for failure to report because the uncle was indeed a reportable custodian or person legally responsible for the child's care-as a person in whose care the child had been entrusted-during the child's extended visits with him because it was clearly unreasonable for the teacher to fail to report the uncle given the facts she knew, as such facts created a "reasonable suspicion" that child abuse had occurred. Therefore, mandatory reporters should report reasonable suspicions of child abuse, even if they are uncertain whether or not the situation fits the legal definition thereof.
Of course, if a mandatory reporter is certain that the situation does not fit the legal definition of child abuse, a report would not be in good faith and could be considered willful misconduct, thereby not immunizing the mandatory reporter from criminal and civil liability. Paragraph a of the law covers individuals who make false reports directly to Statewide Central Register.
Recent legislation added paragraph b to the section to cover the individual who makes a false report indirectly by giving the false report to someone they know is obligated to make the report to the statewide central register and with the intent that the report reach there.New york state law dating a minor
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