AGO 2008-02.
Case Date | March 15, 2008 |
Court | Maine |
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 these...by 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 OffensesBefore looking at the question of whether all criminal sexual offenses are...
To continue reading
Request your trial