Dec. 21, 2011 – The child sexual abuse scandal at Penn State University has sparked increased interest in state laws that aim to protect children from abuse. In fact, a Dec. 16 USA Today cover story1 focused on mandatory abuse-reporting laws, concluding that “infrequent enforcement” and “small penalties” do little to encourage reporting.
This article highlights Wisconsin’s mandatory-abuse reporting laws, noting several changes that took effect Dec. 9 through 2011 Wisconsin Act 81 and 87. Lawyers who represent children or counsel persons subject to mandatory reporting laws should note the changes.
Mandatory and other reporters
Not all adults are required, by law, to report suspected child abuse. But Wis. Stat. section 48.981(2)(a) makes suspected child abuse reporting mandatory for certain adults in 29 occupations, including social workers, physicians, nurses, dentists, school teachers, administrators, and counselors.
Act 81 now adds “school employees” to the list. It also requires every school district employee to receive training, from the Department of Public Instruction, within the first six months of employment and every five years thereafter, on identifying child abuse or neglect.
Mandatory reporters are required to report if they have “reasonable cause to suspect that a child seen by the person in the course of professional duties has been abused or neglected or who has reason to believe that a child seen by the person in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur.”
Under 48.981(2)(b), “court-appointed special advocates” are also mandatory reporters. Specifically, court-appointed special advocates must report suspicions that arise in the course of activities under section 48.236 (3). One of the activities that triggers mandatory reporting is representation to “promote the best interest of the child.” That would include a lawyer.
Exceptions and permissive reporting
Under existing law, members of the clergy that learn of suspected sexual abuse – as opposed to other forms of child abuse or neglect – in the course of their duties, or learn of threatened sexual abuse that is likely to occur in the future, must report. However, there is an exception for child abuse information received through confidential communications.2
Specifically, members of the clergy are exempt from reporting child abuse information received “solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and, under the disciplines, tenets, or traditions of his or her religion, has a duty or is expected to keep those communications secret.”3
Also, under Wis. Stat. section 48.981(2m), there are specific confidential health care services that are exempt from the mandatory reporting requirements. These are very limited to only certain health care providers in family planning services, such as pregnancy testing, obstetrical health care or screening, diagnosis and treatment for a sexually transmitted disease.
Any person not otherwise specified, including an attorney, may report suspected child abuse or threatened abuse that is likely to occur in the future.4 However, since reporting is only “permissive” under this provision, a lawyer may not make such a report unless doing so would not violate the lawyer’s obligations under SCR 20:1.6, State Bar Ethics Counsel Tim Pierce said.
Parental delegate is a permissive reporter
Act 87 creates section 48.979, which grants a parent with legal custody of a child a right to delegate to an agent, for a period not to exceed one year, any of his or her powers regarding the care and custody of the child through a power of attorney.5
Under Act 87, a person delegated care and custody of a child under the law is not required to report, but may report. This is the new “person delegated parental powers exception to the reporting requirement” under newly created section 48.981(2r).
Good faith, immunity, and reporting procedure
Act 81 creates greater protections for mandatory reporters who report suspected child abuse “in good faith,” perhaps as a way to encourage required suspected child abuse reporting.
Mandatory reporters must immediately inform, personally or by telephone, the county’s department of children and families, a child welfare agency under contract with the department, or the local police department.6 The contact agency may depend on the size and location of the particular county in which suspected child abuse occurs.
The report must include the “facts and circumstances contributing to a suspicion of child abuse or neglect or of unborn child abuse or to a belief that abuse or neglect will occur.”7 The law does not require that actual abuse exists; suspicion is enough to mandate a report. Note that obligatory reporting applies even to abuse of an unborn child.
If the reporting person requests an urgent investigation because of immediate danger, the police must investigate immediately.8 Law enforcement must take necessary action, which includes taking a child into custody to deliver the child to an intake worker.
If law enforcement determines that criminal action is necessary, they are to refer the case to the district attorney for criminal prosecution.9
Act 81 amends section 48.981(2)(e) to read: “No person making a report under this subsection in good faith may be discharged from employment, disciplined or otherwise discriminated against in regard to employment, or threatened with any such treatment for so doing.”
Previously, the law only protected mandatory reporters from employment discharge. Act 81 adds the “good-faith” requirement and protects mandatory reporters from discipline, threats, and discrimination with regard to employment, as well as employment discharge.
In addition, if a person makes a good-faith report of child abuse, neglect, sexual abuse, or criminal activity, then, under the law that person is immune “from any liability, civil or criminal …”10 This immunity extends to the person if he or she conducts an investigation, orders or takes photographs, or performs a medical examination of a child.
The law states that whether a legal proceeding is civil or criminal, “the good faith of any person reporting under this section shall be presumed” by the courts.11
However, if the reporter is the perpetrator and reports the abuse, then he or she is not immune from prosecution. In other words, a person cannot abuse or neglect a child or an unborn child, and then turn him or herself into the police and claim immunity.
Penalties and confidentiality
Persons who fail to report suspected child abuse when required may be fined not more than $1,000 or imprisoned not more than six months or both.
A private attorney may also file a case under civil tort law for the victim and his or her family, but this statutory law does not create, in itself, a private cause of action. There are other avenues under civil tort law.
The statutes state that all reports made under this law, and all records maintained by an agency and other persons, officials, and institutions shall be confidential. However, there are exceptions to confidentiality for persons who make the report.
Also, law enforcement officers, district attorneys, the department of corrections, the department of health services, and the courts have the right to review reports.12
Other provisions of interest
Newly enacted 2011 Wis. Act 82 increases the penalty for certain crimes against children committed by a child care provider. The law increases the maximum term of imprisonment by not more than five years. Also, 2011 Wis. Act 83 permits an educational agency to refuse to employ or to terminate from employment an unpardoned felon.
Wisconsin’s child abuse reporting laws require individuals in certain occupations to immediately report suspected child abuse. Under Act 81, all “school employees” must get training on child abuse identification and reporting procedures. This provision took effect on Dec. 9, 2011.
Those that do report in good faith as required may not be discharged from employment, or otherwise disciplined or discriminated against with respect to such report.
As a “court-appointed special advocate,” lawyers are required to report suspected child abuse. If not serving as a “court-appointed special advocate,” lawyers may report suspected child abuse if reporting does not conflict with the lawyer’s duty of confidentiality under SCR 20:1.6.
About the author
Barry W. Szymanski, Marquette 1973, is a lawyer and emergency services consultant. He represents health-care providers, and emergency medical service and fire departments. He also serves as the lawyer for the Wisconsin EMS Association and writes the legal column for the EMS Professionals magazine.