Statement of Erin Cullen
Deputy Attorney General – Family Services Division
Office of the Attorney General

Before the
The Committee on the Judiciary & Public Safety
The Honorable Charles Allen, Chairperson

Public Hearing
Bill 23-95, the “Protecting Children Through Mandatory Reporting Amendment Act of 2019”

July 11, 2019
Time 10:00am
Room 123
John A. Wilson Building
1350 Pennsylvania Avenue, NW
Washington, District of Columbia 20004

Introduction  

Good morning Chairman Allen, Councilmembers, staff, and residents.  I am Erin Cullen, and I have the privilege of serving as the Deputy Attorney General for the Family Services Division of the Office of the Attorney General (“OAG”). I am pleased to appear on behalf of Attorney General Karl A. Racine before the Committee on the Judiciary & Public Safety to testify on OAG’s proposed amendments to the law on mandatory reporting of suspected child abuse and neglect. Ensuring that children are safe and child abuse and neglect is investigated is a top priority of Attorney General Racine. I will also suggest amendments  to the Adult Protective Services Act of 1984 to offer more protections to vulnerable adults. The bill before the Council today, supplemented by amendments proposed in this testimony, takes important steps toward improving public safety for some of the District’s most vulnerable residents. 

 Child abuse - whether physical or sexual – and child neglect can have traumatic and life-long effects on a child’s behavior, emotional and mental health, and performance in school. Teachers, health professionals, and clergy have a special responsibility to protect children, but far too often abuse and neglect goes unreported or is covered up. Child abuse – and particularly child sexual abuse – is a significant and especially destructive problem. The District’s Child and Family Services Agency (CFSA) reports that, in fiscal year 2017, it received more than 8,000 reports of child abuse and neglect that led to further action — that’s approximately one report of child maltreatment for every 15 children in the District and an increase of approximately 1,000 reports over the previous year. According to the nonprofit group Darkness to Light, which fights child sex abuse, nationwide 1 in 10 children will be sexually abused before the age of 18, and 90 percent of child sex abuse victims know their abuser.

Since abusers are often close to their child victims they may utilize emotional connections to sexualize their relationships and groom the children or they may silence the children through threats, promises or guilt. Professionals in positions of trust and authority, and others who work closely with children, have a special obligation to identify and report signs of abuse. And, they need training on how and when to report to the District’s confidential hotline at 202-671-SAFE. It is imperative that adults who are entrusted to spend time with or care for children have the resources to understand how to recognize signs of abuse and serve as the voice for children who often can’t speak up for themselves.

Under current District law, certain kinds of professionals and others who regularly work with children – including teachers, coaches, school officials, health care workers, and daycare workers – are mandated reporters for suspected child abuse or neglect that is committed by children’s’ parents and guardians. Mandated reporters must also report when they suspect that a child known to them in their professional capacity, has been sexually abused, prostituted, or was the victim of a gunshot wound or unexplained knife injury – no matter who committed the offense. The mandated reporters must immediately report the abuse to authorities as well as to the heads of any institutions at which they work, who must also report the abuse.  

Bill 23-95

OAG introduced the “Protecting Children Through Mandatory Reporting Amendment Act of 2019” as it saw areas in which the current law on mandatory reporting needed to be updated and/or expanded.  OAG’s work primarily intersects with mandatory reporting in two areas; first is the Family Services Division which handles intrafamilial cases of child abuse and neglect through its representation of Child and Family Services Agency and second through the Public Safety Division which investigates and prosecutes mandated reporters who fail to report cases.  Through both of these lenses, OAG has identified areas in which the law needs to be strengthened in order to ensure the strongest protections for children who may have been victimized.   

As proposed, the legislation would: (1) strengthen protections for children by ensuring that mandated reporters must report all suspected child abuse (2) add clergy to the list of individuals required to report abuse; (3) add churches, synagogues, and other religious institutions to the list of organizations whose leaders have an independent responsibility to report abuse to authorities after becoming aware of it; (4) increase the potential penalties for failure to report; (5) require OAG to notify relevant licensing boards of a conviction if the offender holds a professional license; (6) improve OAG’s ability to investigate failures to report; and (7) create training and certification requirements for mandated reporters and establish a civil fine for failure to comply with those requirements.   After I address each of these proposals, I will propose two amendments that were not part of the original bill.

(1) Strengthening protections for children

The bill broadens the circumstances under which mandatory reporters must contact the authorities. It ensures that mandated reporters must report all suspected child abuse, whether or not they have come into direct contact with the child.  D.C. Official Code § 4–1321.02 (a) requires that a report be made when the mandated reporter, “has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been or is in immediate danger” of being abused.  The law does not require that these same people report when they have a professional relationship with someone other than the “child known to him or her in [their] professional capacity.”  The bill would require that a mandated reporter make a report no matter who the mandated reporter has a professional relationship with when the information provided by that person gives the mandated reporter reasonable cause to suspect that a child was abused.

As noted above, D.C. Official Code § 4–1321.02 (a) only requires a report when the victim of the abuse is a child. However, as recent news reports show, information about child sexual abuse frequently comes out after the victims are no longer children.  And, the people who committed the sexual abuse went on to abuse other children.  The bill addresses this gap by expanding the requirement to report to include situations where the abused person was the victim of sexual abuse or was prostituted as a child. Mandated reports of child sexual abuse leads to arrests, prosecutions, and hopefully getting perpetrators off of the streets. This targeted expansion of the mandated reporter requirements will help save current and future children from being abused at the hands of serial offenders. 

(2) Making clergy mandated reporters of child abuse

The bill adds clergy to the list of individuals required to report abuse. The District would join the overwhelming majority of other jurisdictions that already require clergy to report abuse. While there is an exception to the reporting requirement when their knowledge and belief was acquired during the course of a confession or penitential communication, clergy would have to report when the basis of their knowledge is from a source other than the confessional.  There is a parallel amendment to the civil reporting requirement found in D.C. Code § 22-3020.52 that would require clergy to report when he or she receives information, from a non-confession or penitential communication that leads the clergy to know or reasonably believe that a child is a victim of sexual abuse, regardless of whether the minister also received information from a confession or penitential communication.

(3) Requiring religious institutions and boards of directors to report child abuse

The bill would specifically add religious facilities, including churches, synagogues and other houses of worship, to the list of organizations whose leaders have an independent responsibility to report abuse to authorities after becoming aware of it. This bill also requires mandated reporters to report not only to the police and child services and the heads of their institutions, if any, but also to their boards of directors to enable them to take whatever action they feel is appropriate to protect all the children in that institution. The bill then requires the chair of the boards of directors to independently report the abuse.  I will note that OAG worked with stakeholders to better clarify this provision. Later in my testimony I will mention a small amendment to ensure the top decision makers within Boards of Directors are aware of reported incidents. These changes not only ensure that reports of abuse are being made, but also ensure that the facilities and institutions take appropriate action to protect the children they serve.

(4) Stiffening penalties for failure to report child abuse

Currently, the potential penalties for failure to report under District law include jail sentences of up to 180 days or fines of up to $1,000. The bill would increase the maximum fine to $2,500 for the first offense and up to $5,000 for subsequent offenses.

(5) Notification to licensing boards

Independently of any sanction imposed by the court for failing to report child abuse, for mandated reporters in licensed professions, the bill would require OAG to notify the relevant licensing board of a conviction. Licensing boards must determine whether individuals have the appropriate skills, knowledge, judgment, and character to be licensed in their field.  Licensing boards should be aware of situations when their licensees are convicted of failing to make a mandated report so that they can take whatever action they deem necessary.

(6) Improving OAG’s ability to investigate failure to report child abuse and sex abuse.

There are two mandated reporting provisions. D.C. Official Code § 4-1321.01 et seq., requires that a defined group of people (i.e. “mandated reporters”) report abuse.  Failure to make those reports, as noted above, is a criminal offense prosecuted by OAG. D.C. Official Code  § 22–3020.52 provides a civil penalty for any person who fails to report child sexual abuse. D.C. Official Code § 22–3020.52 requires that any person “who knows, or has reasonable cause to believe, that a child is a victim of sexual abuse shall immediately report such knowledge or belief to the police.”  Failure to report sexual abuse  under this provision is a civil offense.  Currently, OAG lacks subpoena power to obtain the information and evidence that is frequently required for OAG to determine if a person broke the law, whether charges should be brought, and the circumstances surrounding the failure to report.  To remedy this problem, the bill would give OAG limited subpoena power to investigate these cases.  OAG would only be able to use subpoenas when no indictment, information, or petition has been filed charging the target of the investigation or when consent has been sought for the release of the documents, unless a determination has been made that requesting such consent would threaten or impede the investigation.

(7) Requiring training and certification for mandated reporters

Currently, there are no training or certification requirements for mandated reporters in the District. To ensure that reports of abuse are made, mandated reporters must be trained on what their legal obligations are. They should only report what they observe or hear from a child or from others about the child. It is equally important, however, that they be trained on what they should not do.  For example, mandatory reporters should never conduct their own investigations;  that is what CFSA, MPD, and Safe Shores are for.  Only specially trained interviewers should interview a child. No one wants a child to be further traumatized by a well-intentioned reporter or have the child’s testimony tainted by the intervention of a well-meaning person.  To address this issue, the bill establishes training requirements for mandatory reporters.  It establishes a list of subjects that the training must include. The specific requirements would be determined through regulations.  Failure of a mandatory reporter to receive regular certification and training would subject the person to a $300 civil fine that would be adjudicated by the Office of Administrative Hearings.

Additional Amendments

(1) Requiring mandated reporters to report teacher on child assaults

Since OAG introduced this bill, our Criminal Section received information concerning two MPD investigations regarding the failure of school officials to report, or immediately report, the abuse of children by teachers at their schools.  This type of failure to report is not covered by the current mandated reporter statute, as teachers are neither parents, guardians, or custodians and the assaults did not pertain to the children being sexually abused or prostituted or being the victim of a gunshot wound or unexplained knife injury. Confined by the present statutory language, OAG Criminal Section was not able to pursue charges in these cases. Parents expect that their children will be safe in school and, at the very least, not be physically assaulted by school personnel. To protect our children and ensure that assaults by school personnel are reported, OAG proposes amending D.C. Code 4-1321.02 to require that assaults by a teacher, counselor, principal, coach or other person of authority in a preschool or elementary or secondary school be reported.

(2) Reporting to key members on Board of Directors

As introduced, Bill 23-95 did not specify which members of the Board of Directors would receive information requiring them to be reporters. After careful review, OAG proposes that language mandating that “at least three members” of the Board of Directors be designated for reporting purposes.

(3) Amendments to the elder abuse statute

As the council is aware, combatting elder abuse, like combating child abuse, is a high priority for the OAG.  As part of its efforts to combat elder abuse, OAG recently reviewed the D.C. Code to identify all relevant criminal penalties available in the D.C. Code for such crimes.  This review included the Adult Protective Services Act of 1984, which established mandated reporting requirements and penalties for the failure to report suspected abuse, neglect, and exploitation of vulnerable adults, which includes elderly adults.  OAG’s review revealed that these provisions had not been changed since being codified in 1984 and were woefully out of date.  Therefore, OAG proposes the attached amendment to include vulnerable adults within Bill 23-95. This amendment would modernize the relevant language in the Adult Protective Services Act through three proposed changes.  First, it would change the standard of knowledge that triggers a duty to report to “knows or has reasonable cause to suspect,” which is identical to the standard used for child abuse reporting.  Second, it would clearly identify APS or MPD as the agencies to which the report shall be made.  Third, it would change the penalty for the failure to report to include the possibility of up to 180 days imprisonment and increase the fine from $300 to the fine proscribed by D.C. Code 22-3571.01, which is $2,500.  Currently the only penalty possible for the failure of a mandated reporter to report is a fine of $300.  This would make the fine comparable with the proposed penalties for the failure to report child abuse. These changes will ensure that mandated reporters clearly understand their reporting requirements and that the OAG can prosecute mandated reporters who fail to do so.

Conclusion  

Passing Bill 23-0095 with the above-stated amendments will further emphasize that adults in a position to see or hear about child abuse or neglect are obligated under the law to report that abuse.  It will also strengthen reporting requirements of abuse, neglect or exploitation of our vulnerable adult population.  Reporting leads to investigations which lead to interventions aimed at providing resources to address any trauma endured and prevent further abuse.  When we address trauma, we invest in the future our citizens. The Office of the Attorney General appreciates the opportunity to testify on this important bill.  OAG will continue to work with you and its partners to ensure our policies and laws are effective in protecting public safety and promoting the public interest.  My team and I are available  to answer any questions that the members of the Committee may have.