Child Abuse

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

Key point 4-08
. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

A counselor met with a divorced woman and her minor children, and concluded that the children had been sexually molested by their father. Though the counselor was a mandatory child abuse reporter under state law, she chose not to report the abuse. The mother used the counselor's opinion to obtain an injunction against her former husband, without advance notice to him. Because the husband did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied him legal custody of his children and effectively denied him all parental rights, including visitation.

The father sued the counselor (and the counselor's employer), claiming that her failure to report the abuse denied him the opportunity to prove his innocence in the course of a state investigation. A state appeals court concluded that the child abuse reporting statute does not authorize civil lawsuits against mandatory reporters who fail to report known or suspected cases of child abuse.

The court noted that the child abuse reporting statute does not specifically create "a cause of action for violation of its terms." It acknowledged that a cause of action could be "implied" if there was clear evidence of a legislative intent to create one, but it failed to find such an intention in the statute.

It observed, "We find nothing in [the statute] that suggests such an intent. On the contrary, we note that [it] appears to address the subject of penalties for failure to report known or suspected child abuse and makes such nonfeasance a first-degree misdemeanor. It says nothing about the availability of a cause of action for damages …. Accordingly, we hold that [the child abuse reporting statute] does not create a cause of action for damages."

Application . This case is important because it rejects the argument that mandatory child abuse reporters can be personally liable for failing to report known or suspected abuse. While such reporters are subject to criminal liability (a misdemeanor) for failing to report, they may not be subject to personal liability in a civil lawsuit for failing to report, at least in states that follow the ruling in this case. Welker v. Southern Baptist Hospital of Florida, 2004 WL 34512 (Fla. App. 2004).

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