Law requiring child abuse reporting ambiguous on penalties, making prosecution difficult

Posted Aug. 03, 2012, at 7:07 p.m.

AUGUSTA, Maine — A Maine State Police report released this week that suggests a number of people knew Bob Carlson sexually abused multiple children, but didn’t come forward to report it, has raised questions about a state law that requires a certain class of professionals to report suspected child abuse.

Did a university president, for example, have a legal responsibility to pass on reports of sexual abuse of a child? And what would the penalty be if he did not?

Maine’s mandatory reporting law requires that 32 types of professionals — from school employees to medical personnel to law enforcement — report child abuse or neglect to the Department of Health and Human Services if they have reason to suspect it has happened.

A review of the mandated reporter law’s history in the Maine Legislature shows the law has expanded from a statute meant to compel medical professionals to report suspected child abuse to a more encompassing law that’s largely in line with other states’ but doesn’t clearly spell out a penalty for failing to report abuse.

Maine’s mandated reporter law first passed in 1965 as a measure to require doctors who see signs that young patients have been abused to make a report to what was then the state Department of Health and Welfare.

The provision laid out a penalty of $100, up to six months in prison, or both for failing to report suspected abuse. It also guaranteed someone who made a report of abuse immunity from civil or criminal liability.

Rep. Malcolm Berman of Houlton wondered whether the law was realistic. “I ask, does anyone here believe that any doctor or hospital official will ever be prosecuted under this law?” he said during House debate on March 2, 1965, according to the legislative record.

But that question “seems to me to miss the point,” said Rep. Harrison Richardson of Cumberland. “The point is that we should encourage our medical people to report cases where they have reason to believe and a reasonable basis for believing that a child is willfully abused by its parents or natural guardians.”

Since the law first passed, it has been changed 25 times, according to a legislative history compiled by the Maine State Law and Legislative Reference Library. It changed in some cases to make minor language adjustments, sometimes to add to the list of mandated reporters and other times to change the procedures for reporting abuse.

School officials joined the list of mandated reporters in 1975, when the state was preparing to apply to the federal government for funding under the Child Abuse Prevention and Treatment Act.

The state needed to amend the law to qualify, so lawmakers extended the list of mandated reporters to include social workers, psychologists, child care employees, law enforcement, teachers, school officials and others.

The amendment didn’t further define “school official” to clarify whether the designation applied to university presidents. The law did, however, impose a stricter penalty for failing to report, raising the potential fine to $500, up to six months in prison, or both.

In 1977, though, the penalty was scaled back. Failure to report became a civil violation punishable by a $500 fine. The penalty language disappeared from the law entirely in 1980 when the mandatory reporting statute became part of the broader Child and Family Services and Child Protection Act. A review of the legislative record — the official record of debate — shows no discussion about dropping the penalty.

While the statute no longer details a penalty for failing to report suspected child abuse, an online training for mandated reporters of abuse on the Department of Health and Human Services website notes that failure to report abuse is a civil violation “for which you may be prosecuted and fined up to $500.”

DHHS spokesman John Martins said the language on the training website is accurate and that the penalty has rarely, if ever, been applied.

“It’s difficult to prove someone has knowingly or willingly not acted as a mandated reporter should,” he said.

The online training also notes that, outside of the law, a licensed professional could face professional sanctions for failing to report abuse or neglect.

Without language on penalties, prosecution for violating the law would be difficult, said Penobscot County District Attorney R. Christopher Almy.

“If there is any kind of evidence that a mandated reporter in this situation failed to report, then you have to look to see whether or not the statute is clear and says, in fact, that if there is a failure to report, whether it is a criminal offense, a civil offense or any offense at all,” Almy said Friday. “My reading of the statute is that it is vague on that point. Vague.”

BDN writer Judy Harrison contributed to this report.

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