AGO 2008-02.

Case Date:March 15, 2008
Maine Attorney General Opinions 2008. AGO 2008-02. STATE OF MAINEOFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006March 15, 20082008-02Commissioner Brenda HarveyDepartment of Health and Human Services 221 State Street 11 State House Station Augusta, ME 04333-0011 Dear Commissioner Harvey: By letter dated November 1, 2007, you have requested an opinion concerning the interpretation of 22 M.R.S.A. § 4011-A, referred to generally (and herein) as the mandatory reporting law. Specifically, you ask whether the obligation imposed by that statute to report abuse and neglect to the Department of Health and Human Services ("Department") should be read "to include all defined crimes of sexual act or contact involving children under age 14, so as to require the Department both to report such cases to the District Attorneys and to require the Department to accept such eases for our own child welfare investigations?"(fn1) SUMMARY OF CONCLUSIONS This is a complex issue, but also a narrow and specific one. The effective operation of the mandatory reporting law and the prosecution of sex crimes perpetrated against children are critical tools for the protection of children. The mandatory reporting law clearly requires the reporting to the Department of "abuse and neglect," which is defined to mean "a threat to a child's health or welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from a person responsible for the child." 22 M.R.S.A. § 4002(1). The mandatory reporting law also requires mandatory reporters to report to the appropriate district attorney instances of abuse and neglect, as defined above, when committed by a person who is not responsible for a child; the district attorney has discretion to prosecute in appropriate cases. The behaviors that must be reported under this statute include conduct that may also constitute a crime under the Maine Criminal Code and which may be a juvenile crime under the Maine Juvenile Code.(fn2) We have found no Maine case addressing the question that you have posed. The courts in other jurisdictions that have ruled on this issue have carefully limited the scope of their opinions to very precise parameters. We adopt this same approach, in order to avoid an overbroad interpretation of our conclusions that might operate to undermine the proper reporting of child abuse and neglect to the Department and to the district attorneys. As a result, references to sexual conduct by minors in this opinion mean activities where: 1) no coercion or violence was involved; 2) no mental disability or other appreciable power differential existed between partners; and 3) the parties are both minors who are at least twelve and the age difference between them is less than three years.(fn3) It is also important to note that we are addressing the question of whether the mandatory reporting law requires a report to be made, as distinguished from whether it permits one. The law encourages reporting by providing that a mandated reporter is immune from liabilityfor making a report in good faith. 22 M.R.S.A. § 4014. The narrow legal question we address in this opinion is whether a mandated reporter is required to report sexual conduct by a minor that may constitute a crime involving a sexual act or contact even where the mandated reporter does not know or have reason to suspect that the conduct presents a threat to a child's health or welfare. Critical to our analysis is the fact that a knowing failure to comply with the mandatory reporting law is subject to prosecution for a civil violation. 22 M.R.S.A. § 4009. Because the mandatory reporting law does not clearly put reporters on notice that they must report to the district attorney actions by a person not responsible for a child solely because those actions may constitute a crime, we do not believe it likely that a court would reach the conclusion that failure to make such a report under these narro circustances constitutes a knowing failure and therefore a civil violation.(fn4) The mandatory reporting law is ambiguous in its application to this specific issue. However, we believe that a court construing its language would conclude that a mandated reporter is not legally required to make a report unless the reporter has reasonable cause to suspect a threat to a child's health or welfare. In many cases, sexual conduct by minors may satisfy this standard, and reports should be made in those situations. A report to the Department may also be appropriate in these cases if the reporter has reasonable cause to suspect that a person responsible for the child has failed to protect the child from abuse and neglect. However, if a mandated reporter reasonably concludes, based on the totality of the circumstances and exercising the reporter's professional expertise where applicable, that sexual conduct between minors does not threaten the health or welfare of the children involved, we do not believe that a court would conclude that a report is legally required. This question is not addressed in the Department's rules or policies, or in the explanatory materials it provides concerning the mandatory reporting law. Based on our discussions with your staff and our review of your statutes, rules and policies, we have not found any guidance on the Department's view of same or near age sexual activities by minors. It is our opinion, in responding to your second question, that whether the Department opens an investigation in any given matter is within the Department's enforcement discretion, Since we have concluded that there is no clear requirement that all behaviors that may constitute crimes fall within the abuse and neglect definition under the Act, we do not believe that you are compelled to open an investigation solely because such behaviors may be crimes. As with any other report, the Department must use its judgment to determine whether a child has been or is likely to be abused or neglected. The Department may wish to clarify its rules and policies on mandatory reports to address how same or near age sexual activities will be addressed in its enforcement of the child protection laws. In addition, the Legislature may wish to consider clarifying the mandatory reporting law on the issue of the reporting of activities that may constitute crimes, Legal issues discussed in the analysis that follows may be relevant to a statutory clarification, such as the interface of the mandatory reporting law with existing statutes providing minors with certain rights to reproductive health services without parental notification, There are, of course, a number of policy issues that are relevant to this question, as to which we express no opinion herein. Before beginning our legal analysis of the questions you have asked, we set out the relevant child protection and criminal law provisions that inform our discussion. BACKGROUND 1. The Mandatory Reporting Law Your questions focus on the provisions that require reporting of suspected cases of child abuse and neglect. Title 22, M.R.S.A., § 4011-A(1) requires twenty-nine specific categories of adult individuals to "immediately report or cause a report to be made to the department when the person knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected...." Persons required to report (collectively referred to as "mandated reporters") include (among others) the following when acting in a professional capacity: a variety of health care providers (physicians, nurses, dentists, mental health professionals, etc.), school personnel (teachers, guidance counselors, school officials), law enforcement personnel, and clergy. Department employees who are social workers are mandated reporters. 22 M.R.S.A. § 4011-A(15), Persons with full, intermittent or occasional responsibility for the care or custody of a child, and persons who serve in an administrative capacity or position of trust in a church or religious institution, are also mandated reporters. 22 M.R.S.A. § 4011-A(1)(B)&(C). Mandated reporters are also required to report to the district attorney's office, as follows:
2. Required report to district attorney. When, while acting in a professional capacity, any person required to report under this section knows or has reasonable cause to suspect that a child has been abused or neglected by a person not responsible for the child, the person immediately shall report or cause a report to be made to the appropriate district attorney's office.
22 MRSA § 4011-A(2). There are two differences between these two reporting requirements: 1) Reports to the district attorneys are required only where the abuse or neglect is perpetrated by a person not responsible for the child; and 2) reports to the district attorneys are required only where a mandated reporter knows or has reason to suspect that a child has been abused or neglected, while reports to the Department are required when there is reasonable cause to suspect that a child has been or is likely to be abused or neglected. A knowing failure to make a report required under either provision is a civil violation for which a forfeiture of not more than $500 may be adjudged under the general penalty provision of the Act. 22 M.R,S.A. §4009. II.
Criminal Sex Offenses
Before looking at the question of whether all criminal sexual offenses are...

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