By Brad Heath (USA Today)
December 16, 2011
Laws that could punish doctors, teachers and other adults for keeping silent when they suspect a child has been abused have gone largely unenforced over the past decade.
Those state laws require people who work closely with children to alert police or child-welfare investigators anytime they so much as suspect a child has been abused.
Yet a USA TODAY examination of police and court records from across the USA found that a combination of infrequent enforcement and small penalties means adults often have little to fear from concealing abuse.
In most of the states that could provide records, local police and prosecutors typically charged no more than one or two people each year. Michigan police made just five arrests over the past decade. In Hawaii and Minnesota, court officials said they couldn't find a single case.
Fewer than half of the cases USA TODAY reviewed in detail ended in convictions, and the penalty was usually a fine of less than $1,000.
"If you're not going to make the moral choice, at least you have to have a law with some teeth that makes somebody do it for the legal reason that you're afraid you're going to be charged," said Sean McCormack, the chief child abuse prosecutor in Harrisburg, Pa.
States' mandatory abuse-reporting laws are getting new scrutiny in the aftermath of a sexual abuse scandal at Penn State University, where longtime assistant football coach Jerry Sandusky is accused of having molested 10 boys over 15 years. He has pleaded not guilty. Two Penn State officials are charged with failing to report the abuse to police.Those two officials, Tim Curley and Gary Schultz, are scheduled to appear in a Harrisburg courtroom Friday for a preliminary hearing. It will be their lawyers' first opportunity to confront Mike McQueary, who testified to a grand jury that he told both officials in 2002, while working as a graduate assistant, that he had seen Sandusky having sex with a young boy in a Penn State locker room.
The scandal has prompted new attempts by lawmakers in at least six states and in Congress to expand the reach of mandatory reporting laws. It also has raised questions about whether those laws are effectively enforced.
In the years before the Penn State scandal erupted, for example, court records show three other cases were filed over failures to report abuse. None has so far led to more than a $375 fine.
"It was basically a traffic ticket," York, Pa., Detective Dana Ward said.
In the state of Washington, court records show just eight people were charged over the past decade, and only one was convicted —a high school coach who confessed to covering up another coach's sexual relationship with a student. He paid a $723 fine and was sentenced to probation.
States adopted those laws in the 1960s. In the following decades, hundreds of thousands of reports were made to child abuse hotlines, training for teachers and others became widespread, and police have investigated scores of cases of abuse and neglect they might never have discovered.
Scott Berkowitz, the head of RAINN, an advocacy group for abuse victims that runs a support hotline , said the laws have been "very effective in making people alert to signs of abuse and motivating people in positions of responsibility to do the right thing." But, he said, "if we want to solve the rest of the problem and deal with the segment of the population that doesn't take these laws seriously, then they're going to have to have beefed-up enforcement."
Because violations of mandatory abuse-reporting laws are almost always considered minor crimes, few states track how often people are charged with them. To find out, USA TODAY reviewed police arrest data and court records from 25 states and Washington, D.C. In other states, police and court officials said they were unable to determine how often charges of failing to report abuse had been filed.
Abuse frequently unreported
Child welfare agencies estimate that 695,000 children were abused or neglected last year, but studies have repeatedly found that even more abuse goes unreported.
In a 1990 RAND Corp. survey, for example, 40% of professionals admitted they had not reported at least one instance of suspected abuse, even though the law required them to do so. In a 2008 study published in the journal Pediatrics, medical researchers found that doctors chose not to report more than a quarter of physical injuries they thought were "likely" or "very likely" caused by abuse. The studies found that workers weren't certain what they saw was abuse, and they worried that reporting their suspicions could do more harm than good.
"That really surprised us," said Emalee Flaherty, a pediatrician at Children's Memorial Hospital in Chicago, one of the study's authors. "The doctors told us that they didn't report because they weren't certain. The laws are written so that they don't have to be certain to report it. But they don't want to be wrong."
Beyond that, civil lawsuits by abuse victims regularly allege that workers failed to report abuse, but were never investigated or charged for breaking the law. "That happens all the time," said Jeffrey Herman, a Miami lawyer who specializes in abuse cases. "People should know abuse when they see it. But even if they don't, the laws are supposed to be broad enough that if you suspect it, then you report it and you let the experts make that decision."
Those reports, he said, could save kids from further abuse.
If the officials in the Penn State case had spoken up, other children might have been spared, said Slade McLaughlin, the attorney for another boy who was allegedly abused by Sandusky beginning in 2005 or 2006 — at least three years after the officials were told about Sandusky — according to the grand jury.
"Even apart from the laws, if you're a human being with some compassion, some sense of right and wrong, how do you not do something about this?" McLaughlin said. He said that if the earlier incident had been reported to the police, "there's no doubt in my mind he would have been stopped in his tracks."
Why so few charges
Although prosecutors have brought a few high-profile charges in recent years — including the cases tied to Penn State and one against a Catholic bishop in Kansas City, Mo. — records show they are uncommon.
Among the 25 states USA TODAY reviewed, 16 averaged fewer than two cases per year. In Nevada, for example, police charged a total of four people with failing to report abuse since 2001. Connecticut brought charges against 15 people, and all but two of the cases were dropped. Even in states where authorities have been more aggressive in enforcing the reporting laws, charges are infrequent: Police in Tennessee brought 61 reporting violations to court since 2007, according to court records; South Carolina brought 38.
Among reasons those cases are rare:
- Time limits: In 34 states, statutes of limitations require that prosecutors bring charges for failing to report abuse within two years of when someone became aware of potential abuse. Those limits make it nearly impossible for authorities to bring charges when abuse comes to light later.
In Florida, investigators reviewing accusations of a former priest drugging and raping a series of young boys ultimately turned their attention to the church's leaders. Their probe left prosecutors convinced that church officials had been aware of allegations against the priest years earlier, but did not report them to the police, according to a 2003 memo by Dennis Siegel , the head of the Broward County State Attorney's child abuse unit. Siegel concluded "it is probable" that the officials "could be considered criminally culpable for failing to report the abuse."
By then it was too late. Florida has a one-year limit on pursuing failure-to-report charges. As a result, "no action can be taken by this Office," Siegel wrote.
- Important witnesses: Prosecutors often need people who knew about abuse to testify against the abusers - even if they didn't report it immediately, and don't want to risk scaring them with criminal charges. "Failure to report definitely is very significant, and if you can prosecute someone for that without affecting the actual sex crimes case, you do, but the sex crime case is more important," Siegel said in an interview. "You have to choose."
- Murky standards: Almost every state requires workers to alert the authorities if they even suspect abuse, not just if they know about it firsthand — but the line separating what has to be reported from what can be ignored is often unclear. As a result, prosecutors say, it's difficult to prove that someone's suspicions were strong enough that they should have made a report.
"If you actually see it and interrupt a sexual assault by an adult on a small child, you're on notice, everyone can agree that you have to report it," King County, Wash., Prosecuting Attorney Dan Satterberg said. "But if you just hear about it or you hear rumors or you hear something that causes you concern ... it's very hard to say that somebody actually had the duty."
Even when authorities bring criminal charges for not reporting abuse, court records show most of the cases are thrown out; those that aren't, seldom lead to jail time or significant fines.
Only three states have laws that make failing to report abuse a felony, and those laws generally apply only when the abuse is particularly severe or the person has been convicted before. Most of the rest make failure to report a misdemeanor or a civil infraction — the rough equivalent of a speeding ticket.
Of the 222 people whose cases USA TODAY was able to review in detail, 102 were convicted. The rest were acquitted or had the charges against them thrown out, according to court records. The review identified only 14 people who were sent to jail. More often, people who know about abuse and don't report it face probation or a fine.
That's what happened three years ago when prosecutors accused the volleyball coach at Mount Rainier High School in Des Moines, Wash., of trying to cover up a sexual relationship his assistant coach had with a 16-year-old student. According to court records, the coach, Bryan Harley, delivered a letter of apology to the girl from the assistant coach, but said she couldn't keep it for "legal reasons." Later, he sent the assistant coach an e-mail telling him that if the girl did come forward, "she will get no support or sympathy from me or anyone else."
Harley pleaded guilty. The judge ordered him to pay $723 and spend two years on probation.
The punishment was even smaller when police in York, Pa., accused the city school district of not reporting allegations that a middle-school gym teacher had inappropriately touched several of his students. The district spent several weeks conducting its own investigation instead of reporting the situation, as the law requires, York police Detective Ward said. He said investigators "never believed they were trying to sweep something under the rug," but by the time one of the alleged victims reported the abuse to police weeks later, "it was old."
The teacher, Edward Fullum, was found not guilty of abusing the girls. He was later charged with abusing a different girl and pleaded guilty to obstruction and hindering charges. A lawyer for the school district, Jeffrey Gettle, said he could not discuss the case but that the district did not admit to any wrongdoing. The school district pleaded no contest in 2005 to one charge of failing to report abuse — at the time, the violation wasn't even a misdemeanor in Pennsylvania.
It paid a $300 fine.