Mandatory Reporting  in Pennsylvania               Joseph Lesniak, Esquire          Law Offices of Joseph Lesniak, LLC    ...
The Scope of the Problem   Pennsylvania DPW received 24,615    reports of suspected child and student    abuse in 2010. ...
The Scope of the Problem   9% of substantiated reports involved    children who had been abused before.   67% of substan...
The Scope of the Problem   Sexual abuse was involved in 54 percent    of all substantiated reports.   The 16 reports of ...
General Rule   A person who,       in the course of employment, occupation or        practice of a profession,       co...
General Rule   . . when the person has reasonable cause to    suspect, on the basis of medical, professional    or other ...
General Rule   The privileged communication between any    professional person required to report and the    patient or c...
Persons Required to Report   Include, but are not limited to, ….. school    administrator, school teacher, school nurse, ...
Persons Required to Report   Civil action for discrimination against person    filing report.       Any person who is re...
Persons Required to Report   In addition to those persons and officials    required to report suspected child abuse, any ...
Persons Required to Report   Reports from persons required to report shall be    made immediately by telephone and in wri...
Persons Required to Report   Written reports from persons required to report    shall be made to the appropriate county a...
Persons Required to Report   (3) The age and sex of the subjects of the report.   (4) The nature and extent of the suspe...
Persons Required to Report   (8) The person making the report and where that    person can be reached.   (9) The actions...
Persons Required to Report   Immunity from liability       A person, school, etc. that participates in good        faith...
Persons Required to Report       shall have immunity from civil and criminal liability that        might otherwise result...
What is Child Abuse?   Any of the following when committed upon    a child under 18 years of age by a    perpetrator:    ...
What is Child Abuse? Any recent act, failure to act or series of such  acts or failures to act which creates an  imminent...
What is Child Abuse?   Serious physical injury       An injury that:          (1) causes a child severe pain; or       ...
What is Child Abuse?   Serious mental injury       A psychological condition, as diagnosed by a        physician or lice...
What is Child Abuse?   Sexual abuse or exploitation.       Any of the following:            (1) The employment, use, pe...
What is Child Abuse?   Sexual abuse or exploitation.       Any of the following:            (2) The employment, use, pe...
What is Child Abuse?   Sexual abuse or exploitation.       (3) Any of the following offenses committed        against a ...
What is Child Abuse?   Sexual abuse or exploitation.       (vi)  Incest.       (vii) Indecent exposure.       (viii) P...
What is Child Abuse?   Rape       Sexual intercourse with a complainant            By forcible compulsion            B...
What is Child Abuse?   Rape       Sexual intercourse with a complainant            Where the person has impaired the   ...
What is Child Abuse?   Statutory Sexual Assault       Sexual intercourse with a person less than        age 16 where the...
What is Child Abuse?       Involuntary Deviate Sexual Intercourse         Deviate sexual intercourse with a          com...
What is Child Abuse?       Involuntary Deviate Sexual Intercourse         Deviate sexual intercourse with a          com...
What is Child Abuse?       Involuntary Deviate Sexual Intercourse         Deviate sexual intercourse with a          com...
What is Child Abuse?       Sexual Assault         Sexual intercourse or deviate sexual          intercourse with a compl...
What is Child Abuse?       Institutional Sexual Assault         Where a person who is an employee or          agent of …...
What is Child Abuse?       Institutional Sexual Assault          Recent changes to this law:            Broadens catego...
What is Child Abuse?       Aggravated Indecent Assault         Penetration, however slight, of the genitals          or ...
What is Child Abuse?   Aggravated Indecent Assault        Who   is unconscious or unaware that the         act is occurr...
What is Child Abuse?   Aggravated Indecent Assault        Who is less than 13 years of age        Who is less than age ...
What is Child Abuse?       Indecent Assault         Indecent contact (contact with sexual or          other intimate par...
What is Child Abuse?       Indecent Assault         Indecent contact with a complainant:             Where the person h...
What is Child Abuse?       Indecent Assault         Indecent contact with a complainant:             Who is less than 1...
What is Child Abuse?   Non-accidental       An injury that is the result of an intentional act        that is committed ...
What is Child Abuse?   Does not include:     Injuries that result solely from environmental      factors beyond the cont...
Mandated Reporting   Bodily injury is defined as the “impairment    of physical condition or substantial pain.”    18 Pa....
Mandated Reporting   Sexual intercourse with a child less than    13 years of age is always a crime without    regard to ...
Mandated Reporting   Your professional contact with a pregnant child    less than 13 years of age triggers a duty to repo...
Why Does Child Abuse Go            Unreported?   Personal matter   Fear of reprisal   Belief that police are biased   ...
Why Do Sexual Assaults Go            Unreported?   Victim feels partly responsible   Insufficient evidence and the case ...
Closer Relationship Between Victimand Offender Decreases Likelihood           of Reporting   When the offender is a curre...
How Many Reports Are False?   Myth: A large number of reported sexual    assaults are false claims   Fact: only 5.5% of ...
   "Unfounded" includes cases where       Insufficient evidence       Victim decides not to follow through with        ...
Criminal Procedure   Report of child abuse/sexual assault   Investigation       Police       CYS/CYF/DHS   Arrest   ...
Criminal Procedure (Continued)   Preliminary hearing       Prima facie case   Formal arraignment   Pre-trial motions  ...
Criminal Procedure (Continued) Discovery   Police reports   Medical records   Lab reports   CYS records   Mental hea...
Criminal Procedure (Continued) Tender years hearsay exception    Applies to child witnesses    Requires indicia of reli...
Criminal Procedure (Continued)   Rape shield      Precludes evidence of victim’s prior sexual       activity      Excep...
Criminal Procedure (Continued)   Other bad acts evidence      Usually limited to last ten years      Requires showing o...
Criminal Procedure (Continued)   Trial     Jury     Both commonwealth and defendant have right      to jury         Ju...
Criminal Procedure (Continued)   Non-jury     Only if both commonwealth and      defendant waive right to jury trial    ...
Criminal Procedure (Continued)   Post-conviction procedure     Pre-sentence investigation        Psychological evaluati...
Criminal Procedure (Continued)   Sexual offender assessment      Ordered in cases involving Megans law      Conducted b...
To report suspected child abuse, call             ChildLine at           1-800-932-0313       TDD 1-866-872-1677
Questions?
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Mandatory Reporting in PA

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Mandatory Reporting in PA

  1. 1. Mandatory Reporting in Pennsylvania Joseph Lesniak, Esquire Law Offices of Joseph Lesniak, LLC (484) 444-2348 jpl@jpllaw.net
  2. 2. The Scope of the Problem Pennsylvania DPW received 24,615 reports of suspected child and student abuse in 2010. 23 of these reports were of suspected student abuse In 2010, 3,656 reports of suspected child and student abuse were substantiated. (15% of the total)
  3. 3. The Scope of the Problem 9% of substantiated reports involved children who had been abused before. 67% of substantiated reports involved girls while 33% of substantiated reports of abuse involved boys. 80% of sexually abused children were girls while 20% of sexually abused children were boys.
  4. 4. The Scope of the Problem Sexual abuse was involved in 54 percent of all substantiated reports. The 16 reports of substantiated student abuse involved ten females and six males. In 2010, 33 Pennsylvania children died from abuse.
  5. 5. General Rule A person who,  in the course of employment, occupation or practice of a profession,  comes into contact with children  shall report or cause a report to be made . . .
  6. 6. General Rule . . when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator
  7. 7. General Rule The privileged communication between any professional person required to report and the patient or client of that person does not apply to child abuse and is not grounds for failure to report as required by this chapter  Except with respect to confidential communications made to a member of the clergy  and except with respect to confidential communications made to an attorney.
  8. 8. Persons Required to Report Include, but are not limited to, ….. school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care worker… Whenever a person is required to report, that person shall immediately notify the person in charge or the designated agent. Upon notification, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made.
  9. 9. Persons Required to Report Civil action for discrimination against person filing report.  Any person who is required to report suspected child abuse and who, in good faith, makes or causes the report to be made and, as a result thereof, is discharged from his employment or in any other manner is discriminated against  may commence an action for appropriate relief.  The court may issue an order granting appropriate relief, including, but not limited to, reinstatement with back pay.
  10. 10. Persons Required to Report In addition to those persons and officials required to report suspected child abuse, any person may make such a report if that person has reasonable cause to suspect that a child is an abused child.
  11. 11. Persons Required to Report Reports from persons required to report shall be made immediately by telephone and in writing within 48 hours after the oral report. Oral reports shall be made to the Department of Public Welfare and may be made to the appropriate county agency
  12. 12. Persons Required to Report Written reports from persons required to report shall be made to the appropriate county agency in a manner and on forms the department prescribes by regulation. The written reports shall include the following information if available:  (1) The names and addresses of the child and the parents or other person responsible for the care of the child if known.  (2) Where the suspected abuse occurred.
  13. 13. Persons Required to Report (3) The age and sex of the subjects of the report. (4) The nature and extent of the suspected child abuse, including any evidence of prior abuse to the child or siblings of the child. (5) The name and relationship of the person or persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by that person or persons. (6) Family composition. (7) The source of the report.
  14. 14. Persons Required to Report (8) The person making the report and where that person can be reached. (9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner. (10) Any other information which the department may require by regulation.
  15. 15. Persons Required to Report Immunity from liability  A person, school, etc. that participates in good faith in the making of a report, whether required or not,  cooperating with an investigation, including providing information to a child fatality or near fatality review team,  testifying in a proceeding arising out of an instance of suspected child abuse, the taking of photographs or the removal or keeping of a child,
  16. 16. Persons Required to Report  shall have immunity from civil and criminal liability that might otherwise result by reason of those actions. Presumption of good faith.--For the purpose of any civil or criminal proceeding, the good faith of a person required to report and of any person required to make a referral to law enforcement officers under this chapter shall be presumed.
  17. 17. What is Child Abuse? Any of the following when committed upon a child under 18 years of age by a perpetrator:  Any recent act or failure to act which causes non-accidental serious physical injury.  An act or failure to act which causes non- accidental serious mental injury or sexual abuse or sexual exploitation.
  18. 18. What is Child Abuse? Any recent act, failure to act or series of such acts or failures to act which creates an imminent risk of serious physical injury, sexual abuse or sexual exploitation. Serious physical neglect which endangers a child’s life or development or impairs a child’s functioning.
  19. 19. What is Child Abuse? Serious physical injury  An injury that:  (1) causes a child severe pain; or  (2) significantly impairs a childs physical functioning, either temporarily or permanently.
  20. 20. What is Child Abuse? Serious mental injury  A psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that:  (1) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the childs life or safety is threatened; or  (2) seriously interferes with a childs ability to accomplish age-appropriate developmental and social tasks.
  21. 21. What is Child Abuse? Sexual abuse or exploitation.  Any of the following:  (1) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct.
  22. 22. What is Child Abuse? Sexual abuse or exploitation.  Any of the following:  (2) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in simulation of sexually explicit conduct for the purpose of producing visual depiction, including photographing, videotaping, computer depicting and filming.
  23. 23. What is Child Abuse? Sexual abuse or exploitation.  (3) Any of the following offenses committed against a child:  (i) Rape.  (ii) Sexual assault.  (iii) Involuntary deviate sexual intercourse.  (iv) Aggravated indecent assault.  (v) Molestation.
  24. 24. What is Child Abuse? Sexual abuse or exploitation.  (vi) Incest.  (vii) Indecent exposure.  (viii) Prostitution.  (ix) Sexual abuse.  (x) Sexual exploitation.
  25. 25. What is Child Abuse? Rape  Sexual intercourse with a complainant  By forcible compulsion  By threat of forcible compulsion  Who is unconscious or unaware that the sexual intercourse is occurring
  26. 26. What is Child Abuse? Rape  Sexual intercourse with a complainant  Where the person has impaired the complainant by administering, without the knowledge of the complainant, drugs, intoxicants, etc.  Who suffers from a mental disability which renders the complainant incapable of consent  Who is less than 13 years of age
  27. 27. What is Child Abuse? Statutory Sexual Assault  Sexual intercourse with a person less than age 16 where the actor is four or more years older
  28. 28. What is Child Abuse? Involuntary Deviate Sexual Intercourse  Deviate sexual intercourse with a complainant  By forcible compulsion  By threat of forcible compulsion  Who is unconscious or unaware that the sexual intercourse is occurring
  29. 29. What is Child Abuse? Involuntary Deviate Sexual Intercourse  Deviate sexual intercourse with a complainant  Where the person has impaired the complainant by administering, without the knowledge of the complainant, drugs, intoxicants, etc.  Who suffers from a mental disability which renders the complainant incapable of consent
  30. 30. What is Child Abuse? Involuntary Deviate Sexual Intercourse  Deviate sexual intercourse with a complainant  Who is less than 13 years of age  Who is less than age 16 where the actor is four or more years older
  31. 31. What is Child Abuse? Sexual Assault  Sexual intercourse or deviate sexual intercourse with a complainant without the complainants consent
  32. 32. What is Child Abuse? Institutional Sexual Assault  Where a person who is an employee or agent of …….a youth development center, youth forestry camp, state or county juvenile facility, other licensed residential facility serving children and youth, or mental health or mental retardation facility or institution,  when that person engages in sexual intercourse, deviate sexual intercourse or indecent contact with an inmate, detainee, patient or resident
  33. 33. What is Child Abuse? Institutional Sexual Assault  Recent changes to this law:  Broadens category of offender to include a volunteer or an employee of a school or any other person who has direct contact with a student at a school  Includes independent contractor who has direct contact with students  Applies this section to child care centers where if child is receiving services at the center.
  34. 34. What is Child Abuse? Aggravated Indecent Assault  Penetration, however slight, of the genitals or anus of a complainant with a part of the persons body for any purpose other than good faith medical, hygienic or law enforcement procedures  Without the complainant’s consent  By forcible compulsion  By threat of forcible compulsion
  35. 35. What is Child Abuse? Aggravated Indecent Assault  Who is unconscious or unaware that the act is occurring  Where the person has impaired the complainant by administering, without the knowledge of the complainant, drugs, intoxicants, etc.  Who suffers from a mental disability which renders the complainant incapable of consent
  36. 36. What is Child Abuse? Aggravated Indecent Assault  Who is less than 13 years of age  Who is less than age 16 where the actor is four or more years older
  37. 37. What is Child Abuse? Indecent Assault  Indecent contact (contact with sexual or other intimate parts, or bodily fluid, for the purpose of sexual arousal or gratification) with a complainant if:  Without the complainant’s consent  By forcible compulsion  By threat of forcible compulsion  Who is unconscious or unaware that the act is occurring
  38. 38. What is Child Abuse? Indecent Assault  Indecent contact with a complainant:  Where the person has impaired the complainant by administering, without the knowledge of the complainant, drugs, intoxicants, etc.  Who suffers from a mental disability which renders the complainant incapable of consent
  39. 39. What is Child Abuse? Indecent Assault  Indecent contact with a complainant:  Who is less than 13 years of age  Who is less than age 16 where the actor is four or more years older
  40. 40. What is Child Abuse? Non-accidental  An injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk. Perpetrator - A person who has committed child abuse and is:  a parent of a child,  a person responsible for the welfare of a child,  an individual residing in the same home as a child  or a paramour of a childs parent.
  41. 41. What is Child Abuse? Does not include:  Injuries that result solely from environmental factors beyond the control of the parent or person responsible for the childs welfare  E.g. - inadequate housing, furnishings, income, clothing and medical care.
  42. 42. Mandated Reporting Bodily injury is defined as the “impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301 Pregnancy is a type of bodily harm specifically identified as a “personal injury” in the criminal law of Pennsylvania. 18 Pa.C.S. § 1106(h)
  43. 43. Mandated Reporting Sexual intercourse with a child less than 13 years of age is always a crime without regard to the age or relationship of the offender, and without regard to the “consent” of the child Under Pennsylvania law, a child less than 13 years of age is incapable of consent to sexual intercourse
  44. 44. Mandated Reporting Your professional contact with a pregnant child less than 13 years of age triggers a duty to report under the crimes code in all circumstances Contact with a pregnant child less than 16 years of age triggers a duty to report under the crimes code if the father of the child is four or more years older than the child and is not married to the minor Failure to report as required by the crimes code is a summary offense punishable by fine and/or imprisonment
  45. 45. Why Does Child Abuse Go Unreported? Personal matter Fear of reprisal Belief that police are biased Desire to protect the offender
  46. 46. Why Do Sexual Assaults Go Unreported? Victim feels partly responsible Insufficient evidence and the case won’t be pursued Victim was drinking or using drugs when it happened Fear of not being believed
  47. 47. Closer Relationship Between Victimand Offender Decreases Likelihood of Reporting When the offender is a current/ex boyfriend• 77% of completed rapes are not reported• 77% of attempted rapes are not reported• 75% of sexual assaults are not reported
  48. 48. How Many Reports Are False? Myth: A large number of reported sexual assaults are false claims Fact: only 5.5% of sexual assaults were determined to be unfounded
  49. 49.  "Unfounded" includes cases where  Insufficient evidence  Victim decides not to follow through with prosecution  Victim repeatedly changes the account of rape  Victim recants and police are unable to locate the victim as well as when the  Allegation is found to be false
  50. 50. Criminal Procedure Report of child abuse/sexual assault Investigation  Police  CYS/CYF/DHS Arrest Preliminary arraignment  Bail or incarceration?
  51. 51. Criminal Procedure (Continued) Preliminary hearing  Prima facie case Formal arraignment Pre-trial motions  Suppression of evidence  Competence of defendant  Competence of witness
  52. 52. Criminal Procedure (Continued) Discovery  Police reports  Medical records  Lab reports  CYS records  Mental health records of victim/witness  NOTE: may be privileged
  53. 53. Criminal Procedure (Continued) Tender years hearsay exception  Applies to child witnesses  Requires indicia of reliability of statement Contemporaneous alternative methods act  Permits testimony by closed-circuit television  Allows testimony by parent and/or therapist on issue of trauma
  54. 54. Criminal Procedure (Continued) Rape shield  Precludes evidence of victim’s prior sexual activity  Exceptions  Where prior activity is with defendant and consent is a defense  Where prior activity is close in time to incident and physical injury or condition is at issue
  55. 55. Criminal Procedure (Continued) Other bad acts evidence  Usually limited to last ten years  Requires showing of relevance
  56. 56. Criminal Procedure (Continued) Trial  Jury  Both commonwealth and defendant have right to jury  Jury selection  Opening statements  Presentation of evidence by commonwealth  Presentation of evidence by defendant (not required)  Closing arguments  Deliberation and verdict
  57. 57. Criminal Procedure (Continued) Non-jury  Only if both commonwealth and defendant waive right to jury trial  Presentation of evidence is same as in jury trial  Often utilized where specific point(s) of law at issue
  58. 58. Criminal Procedure (Continued) Post-conviction procedure  Pre-sentence investigation  Psychological evaluation  Psychiatric evaluation  Drug/alcohol evaluation  Psychosexual evaluation  Review of criminal history
  59. 59. Criminal Procedure (Continued) Sexual offender assessment  Ordered in cases involving Megans law  Conducted by pa. Sexual offender assessment board Sentencing  Minimum/maximum sentence  Sentencing guidelines  Mandatory minimum sentences  Special conditions  Megan’s law requirements
  60. 60. To report suspected child abuse, call ChildLine at 1-800-932-0313 TDD 1-866-872-1677
  61. 61. Questions?

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