By Michael Smith, Hand Ponist Smith & Rayl LLC
Legal obligations to report child abuse or neglect to authorities vary from state to state. Some states impose an obligation only on categories of “mandatory reporters,” typically teachers, pastors, counselors, health care providers, or others that may be more likely than most people to encounter child abuse and neglect, with others being “discretionary reporters.” Indiana’s obligation, set forth at Ind. Code § 31-33-5-1, is different:
[A]n individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.
Knowingly failing to report one’s belief that a child is a victim of child abuse or neglect is a Class B misdemeanor. Indiana Code § 31-33-22-1.
The general obligation applies to almost everyone in the state. In fact, it is not limited to adults. The only exception to the general obligation is for the staff of hospitals who have a different reporting obligation that can be satisfied by reporting to someone else within the institution. Note that before July 1, 2017, a similar exception existed for a member of the staff of a medical or other public or private institution, school, facility, or agency could satisfy his or her obligation by reporting to the person in charge of the institution, school, facility, or agency or to a person designated by the person in charge. Now that exception applies only to hospital staff. All others, including teachers and the staff of health care providers outside of hospitals, have an individual obligation to report that cannot be satisfied by reporting to someone else within the institution, school, facility, or agency.
There are several ways to satisfy the reporting requirement. I.C. § 31-33-5-2 provides that report may be written or oral and that it may be made either to the Indiana Department of Child Services (DCS) or to a law enforcement agency. DCS operates a toll-free hotline, 1-800-800-5556, that accepts reports of child abuse or neglect 24 hours a day. DCS allows these reports to be made anonymously.
Situations that trigger the reporting obligation are broad. A “child” is anyone under the age of 18. “Child abuse or neglect,” found at Indiana Code § 31-9-2-13, includes more situations that can be addressed in this short blog article. Some examples are:
- The child’s physical or mental condition or health is seriously impaired or seriously endangered because the child’s parent, guardian, or custodian is failing to provide the child with necessary food, clothing, shelter, medical care, education, or supervision.
- The child is a victim of any of several crimes, including various categories of battery; conspiracy or attempt to commit one of several categories of homicide; several categories of sex crimes, including rape, child molestation, child exploitation, child seduction, sexual battery, and sexual misconduct with a minor.
- The child is a victim of human or sexual trafficking.
- The child’s parent, guardian, or custodian allows the child to participate in an obscene performance or to commit a sex offense.
The law does not restrict the reporting obligation to people who know about child abuse or neglect. If you have any reason to believe a child is abused or neglected, you must report, and you must report immediately.
In addition, the law requires the individual to report immediately, not after taking the time to confirm the existence of abuse or neglect. In Smith v. State, 668 N.E.3d 668 (Ind. 2014), the Indiana Supreme Court upheld the conviction of a high school principal who learned of an alleged rape, investigated the allegations, and reported it about four hours after he first learned of it. The Supreme Court held that the principal’s report was not immediate., “[I]t is not the school administrator’s responsibility to investigate. That responsibility is firmly placed with DCS and law enforcement.” Although the Court did not dwell on it, the analysis may have been influenced by the fact that the alleged rape could have been easily reported to on-campus law enforcement officers who provided security. Nonetheless, the Court made it clear that immediate means immediate.
The duty to report immediately may cause concern to those reluctant to make a report based on incomplete information for fear the report could be false. Indeed, intentionally making a false report is a Class A misdemeanor and exposes the false reporter to liability, including liability for punitive damages, to the person falsely accused, but the important word is intentionally. As the Supreme Court pointed out in Smith, the reporting statute provides immunity for someone who reports in good faith, even if the report turns out to be false, unless the report is made through gross negligence or willful or wanton misconduct. Moreover, there is a presumption that reports are made in good faith; anyone seeking to hold the reporter liable will have to overcome that presumption.
There is only one exception to the general reporting obligation of an individual who has reason to believe that a child is abused or neglected. An individual is not required to report if, to the best of his or her belief, a report has already been made. We know of no cases addressing a belief a report has been made, but to be cautious one should assume that there must be some factual basis for the belief and that a subjective belief, unsupported by anything other than supposition, is not enough to protect a person who fails to report.
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