• Key point. Persons who are mandatory reporters of child abuse under state law may be civilly liable for an abused child’s injuries if they fail to report known or reasonably suspected abuse.

A New York court ruled that a teacher could be sued by a child who was molested by an uncle because she failed to report the abuse to civil authorities. An 8—year—old girl lived with her parents in New York. She began spending portions of her summer vacation at the home of her aunt and uncle in New Jersey. When the girl was 12 years old, she told two of her girlfriends that she had been sexually abused by her uncle when staying at his home during two previous summers. Encouraged by her girlfriends to tell an adult about the abuse, the victim decided to tell her sixth grade teacher because she felt she could trust her. The girlfriends interrupted the teacher’s class and asked the teacher to speak with the victim in the hallway. The victim, who was crying uncontrollably, and her friends then told the teacher of the abuse. The teacher told the victim there was “nothing she could do” because the uncle was in New Jersey. The victim pleaded with her teacher not to tell her mother, who also taught at the school. The teacher made no report of the abuse, and the victim continued to visit her aunt and uncle in New Jersey. A year later, she told a school guidance counselor about the sexual conduct of her uncle. The guidance counselor told the victim’s mother and a report was filed. The victim’s parents sued the school, seeking to recover damages for the psychological and emotional trauma the daughter suffered after she informed her teacher of the abuse because of the teacher’s failure to report it. A trial court dismissed the lawsuit, and the parents appealed.

A state appeals court ruled that the parents could sue the school as a result of the teacher’s failure to report the abuse. The court noted that teachers are mandatory reporters of child abuse under state law. The school insisted that the teacher was not required to report the abuse since the incidents in question did not constitute child abuse under the statute. The school asserted that the statute requires that the child be abused by a parent or other person “legally responsible” for his or her care, and that because the victim was not continuously or regularly in the same household as the uncle he could not be a “person legally responsible” for her care and therefore the teacher had no duty to report the abuse. The court rejected this reasoning. It agreed that under New York law child abuse is defined to include only those acts of abuse that are committed by a parent or other person responsible for a child’s care. But it pointed out that the statute defines “person responsible for a child’s care” to include “any other person responsible for the child’s care at the relevant time.” The court concluded that the uncle clearly satisfied this definition since the victim visited with her uncle in New Jersey on a regular basis during school holidays and vacations and her parents were not with her on those occasions. Further, the teacher was aware of these trips, and so she had sufficient information to conclude that reportable abuse had occurred.

Most importantly, the court concluded that the school could be sued by the victim’s parents for the molestation that occurred following the teacher’s failure to report: “We conclude that a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty even though it might ultimately be determined that the abuse was not committed or allowed to have been committed by a person legally responsible for the child.” In other words, the school’s civil liability would not be affected by the fact that the uncle was not found guilty of child abuse. As long as reasonable suspicion of reportable abuse existed, and a mandatory reporter failed to report it, civil liability arises.

The court agreed with the school that there was no “common law duty” to report the abuse. It noted that schools are “under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries [directly] related to the absence of adequate supervision.” However, in this case the acts of abuse “did not occur while [the child] was in the custody and control of school officials.” Rather, the acts of abuse “occurred in another state during school vacations” and were “well beyond the supervisory responsibility of the school.” As a result, the school had no “common law duty” to report the abuse to anyone.

It is very important for church leaders to be familiar with this case for the following reasons: First, and most significantly, the court ruled that a school could be legally responsible for the molestation of a child occurring after a teacher learns of the abuse or has reasonable suspicion that it occurred. In other words, there is a significant risk if a mandatory reporter fails to report child abuse. This is an important point for church leaders to keep in mind when evaluating whether or not to report suspected abuse. In New York, and in a number of other states (as noted in previous issues of this newsletter), mandatory reporters and their employer may be civilly liable for failing to report abuse. Second, the court gave a broad interpretation to the term “person responsible for a child’s care.” In many states, reportable child abuse must be inflicted by a parent or person responsible for a child’s care. According to this court, this definition includes a relative who a child visits on a periodic basis. Third, the court rejected the parents’ claim that the teacher had a “common law duty” to report the abuse. This is a significant conclusion since it means that school personnel who are not mandatory reporters of abuse are under no “common law duty” to report. This conclusion will be helpful to persons who are not mandatory reporters of abuse but who are sued for failing to report on the basis of a “common law duty.” Kimberly S.M. v. Bradford Central School, 649 N.Y.S.2d 588 (A.D. 1966). [Failure to Report Child Abuse]

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