Mandatory Reporting in PA

Mandatory Reporting
in Pennsylvania

Joseph Lesniak, Esquire
Law Offices of Joseph Lesniak, LLC
(484) 444-2348
jpl@jpllaw.net

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)

 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.

 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.

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 . . .

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

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.

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.

 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.

 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.

 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

 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.

 (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.

 (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.

 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,

 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.

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.

 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.

 Serious physical injury
 An injury that:
 (1) causes a child severe pain; or

 (2) significantly impairs a child's physical
functioning, either temporarily or
permanently.

 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 child's life
or safety is threatened; or
 (2) seriously interferes with a child's ability to
accomplish age-appropriate developmental and
social tasks.

 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.

 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.

 (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.

 (vi) Incest.
 (vii) Indecent exposure.

 (viii) Prostitution.

 (ix) Sexual abuse.

 (x) Sexual exploitation.

 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

 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

 Statutory Sexual Assault
 Sexual intercourse with a person less than
age 16 where the actor is four or more years
older

 Involuntary Deviate Sexual Intercourse
 Deviate sexual intercourse with a
complainant


sexual intercourse is occurring

complainant

complainant

 Who is less than age 16 where the
actor is four or more years older

 Sexual Assault
 Sexual intercourse or deviate sexual
intercourse with a complainant without the
complainant's consent

 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

 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.

 Aggravated Indecent Assault
 Penetration, however slight, of the genitals
or anus of a complainant with a part of the
person's body for any purpose other than
good faith medical, hygienic or law
enforcement procedures
 Without the complainant’s consent



act is occurring

 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



act is occurring

 Indecent contact with a complainant:

 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 child's parent.

 Does not include:
 Injuries that result solely from environmental
factors beyond the control of the parent or
person responsible for the child's welfare
 E.g. - inadequate housing, furnishings,
income, clothing and medical care.

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)

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

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

Why Does Child Abuse Go
Unreported?
 Personal matter
 Fear of reprisal
 Belief that police are biased
 Desire to protect the offender

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

Closer Relationship Between Victim
and 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

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

 "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

Criminal Procedure
 Report of child abuse/sexual assault
 Investigation
 Police
 CYS/CYF/DHS
 Arrest
 Preliminary arraignment
 Bail or incarceration?

Criminal Procedure (Continued)
 Preliminary hearing
 Prima facie case
 Formal arraignment
 Pre-trial motions
 Suppression of evidence
 Competence of defendant

 Competence of witness

 Discovery

 Police reports
 Medical records

 Lab reports

 CYS records

 Mental health records of
victim/witness
 NOTE: may be privileged

 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

 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

 Other bad acts evidence
 Usually limited to last ten years

 Requires showing of relevance

 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

 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

 Post-conviction procedure
 Pre-sentence investigation

 Psychological evaluation

 Psychiatric evaluation

 Drug/alcohol evaluation

 Psychosexual evaluation

 Review of criminal history

 Sexual offender assessment
 Ordered in cases involving Megan's law

 Conducted by pa. Sexual offender assessment
board
 Sentencing
 Minimum/maximum sentence

 Sentencing guidelines

 Mandatory minimum sentences

 Special conditions

 Megan’s law requirements

To report suspected child abuse, call
ChildLine at
1-800-932-0313
TDD 1-866-872-1677

Mandatory Reporting in PA

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