Child Abuse – Part 1

Church Law and Tax 1990-01-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1990-01-01 Recent Developments

Child Abuse

A question that undoubtedly will be of increasing concern to church staff members is their potential civil liability for failing to report known or reasonably suspected cases of child abuse. In many states church staff members are required to report known or reasonably suspected cases of abuse to the authorities. In some states, they have the option to report or not to report. Whether reporting is required or not, a church staff member who is aware (or reasonably should be aware) of an incident of abuse and who elects not to report it may later be sued by the victim. Will such lawsuits be successful, and if so, what will be the basis of liability? A Florida appeals court recently issued a ruling that addresses these issues in the context of a psychiatrist’s failure to report a patient’s physical and emotional abuse of his daughters. The minor daughters sued their father’s psychiatrist, alleging that he knew that his patient had abused his daughters, that he failed to report the abuse to state authorities as required by law, and that his failure to report caused the children to suffer continued abuse and injury. The court acknowledged that state law requires many categories of professionals (including psychiatrists) to report “known or suspected child abuse or neglect,” and imposes criminal penalties for failure to do so. However, the court observed that the reporting law said nothing about victims being able to sue persons who fail to report, and it refused to create a new theory of liability. In fact, it stated that the “increasing complexity” of legislation and the “much higher volume of litigation” required the courts to refrain from creating new theories of liability unless a statute specifically provides for them. It observed that the Florida legislature “has had ample opportunity to broaden the penalty for failure to report” child abuse by allowing children to sue persons who fail to report. As a result, the court rejected the daughters’ attempt to sue the psychiatrist for injuries they allegedly suffered because of his failure to report. A dissenting judge argued that the daughters should have been permitted to sue the psychiatrist. He maintained that “our jurisprudence rests on the principle that for every wrong there is a remedy,” and that the purpose of the child abuse reporting law was sufficiently broad and important that private lawsuits should be encouraged rather than discouraged. This case provides some indication that civil lawsuits against clergy and other church staff members who fail to report incidents of child abuse may not be allowed by the courts, despite the fact that the victims continue to suffer abuse or molestation because of the failure to report. Certainly it is too early to make such a prediction at this time, but the Florida case at least indicates that the civil courts will not automatically recognize such lawsuits. Future developments of course will be fully addressed in this newsletter. Fischer v. Metcalf, 543 So.2d 785 (Fla. App. 1989).

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