MANDATORY CHILD-ABUSE REPORTING LAWS AND THE #METOO MOVEMENT: FEDERAL AND COLORADO EXAMPLES AND SIX PATHS FORWARD

Matthew Branaugh

 

Introduction

Countless scandals involving child abuse and cover-ups at respected institutions have plagued the country throughout the first two decades of the 21st century.[1] Prominent examples abound, the frequency and severity of which have shaken the public’s confidence in organizations across multiple disciplines, including education, religion, and athletics.[2] With each new headline chronicling another controversy, and corresponding calls from the public demanding accountability and change, the pressure for legislators and policymakers to act grows only more intense.[3]

Many factors have contributed to this continued and troubling trend, but one in particular stands out. Decades-old state and federal “mandatory reporter laws” require specific types of professionals to report suspected or actual cases of abuse they discover.[4] Yet leaders at many of these institutions—many of whom fall under the reporting mandate—either did not know their legal responsibilities or opted to look the other way, enabling abusers to prey on more victims.[5] This inaction has undermined a system intended to protect children and youth.

This dereliction of duty has been evident across virtually every aspect of American life, but perhaps most visibly in the religious community. For instance, widespread evidence uncovered in 2002 revealed the ways U.S. Catholic Church officials, for years, reassigned sexually abusive priests to other parishes, keeping them in contact with children, rather than reporting them.[6] Even as recently as December of 2018, some seventeen years later, investigations addressing similar cover-ups within the U.S. Catholic Church persisted nationwide.[7] By early 2019, news of scandals within other faith traditions had gained widespread public attention as well.[8]

Similar controversies have struck other types of institutions. Senior leaders with the Boy Scouts of America allowed known abusers to remain in contact with children for years.[9] USA Swimming finally banned dozens of coaches for ongoing abuses of teenagers, despite years of suspicions.[10] And the famed Penn State University football program fell from grace in 2011 when its longtime defensive coach’s ongoing acts of molestation finally came to light—as did the discovery that high-ranking university officials, including then-head coach Joe Paterno, knew or suspected the molestation for years.[11]

Another prominent, recent example involving institutional failure surfaced in January of 2018, when 156 females delivered heartbreaking courtroom testimony detailing sexual abuses perpetrated against them by former sports doctor Lawrence G. Nassar.[12] They testified about abuses he committed against them as they trained and competed for USA Gymnastics or Michigan State University.[13] Many suffered for years, some starting as young as age six,[14] even though victims and their families notified coaches and officials.[15] Nassar remained in his role for several decades—and nothing changed.[16]

The Nassar scandal, placed against the backdrop of the emerging #MeToo movement[17] (at the time gaining momentum as it sought to expose systemic and institutional inaction in response to abuse, assault, and harassment), spurred an aggressive federal response: the passage of the “Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017” (the Safe Sports Act).[18] The Safe Sports Act amended existing federal law, and among other things, attempted to further address the failures of the many leaders and officials at USA Gymnastics and Michigan State who did not report Nassar’s abuses after victims notified them.[19] The Safe Sports Act also broadened the list of individuals legally mandated to report suspected abuse.[20]

This strengthened mandatory reporting component, in particular, is a noteworthy development. As existing scandals and new ones further erode the public’s trust, state lawmakers—like their federal counterparts before them—will likely revisit their respective laws looking for ways to take action and hold institutions accountable.[21] These legislative steps may follow the Safe Sports Act’s approach, as well as those taken in previous years by state legislatures to amend their existing laws—steps that have typically involved expanding the types of professionals mandated to report and toughening the penalties these individuals face if they do not fulfill their obligations.[22]

As well-intentioned as these anticipated steps will be, however, their overall success may be minimal at best, based on history and statistical indicators.[23] This Comment will explore why anticipated changes may prove inadequate and then offer practical paths forward. Part I will review the history of abuse-reporting laws, statistical evidence regarding child abuse and the overall effectiveness of abuse-reporting laws, and current events that continue to bring these laws into the spotlight. Part II will dive deeper into the legislative approaches taken by the federal government, as well as by Colorado, which adopted the country’s first mandatory reporter law. Part III will explore analyses and critiques offered by other commentators regarding abuse-reporting laws and various concerns the laws have raised. And Part IV will provide six recommendations for improving mandatory reporter laws, proposing ways legislatures can more successfully resolve unreported child abuse in this country, all with an eye toward greater institutional accountability.

I. Background

Every state has a mandatory child-abuse reporting statute compelling certain professionals to report child abuse and neglect, with the goal of stopping such activities before more harm is done.[24] While each state uses different language and statutory construction for its respective law, similar characteristics exist throughout all of them.[25] The history and trends that spurred the creation of these laws and influenced their evolution provide important context.

A. Awakening to the Problem of “Battered Child Syndrome.”

By most accounts, child abuse was not a widely held public concern, much less a legislative or law enforcement priority, until the 1960s.[26] The publication of several influential academic studies and articles, starting with “The Battered Child Syndrome” in 1962, first recognized child abuse as a medical condition, which “stimulated an outpouring of concern and recognition among professionals and society.”[27] A conference that same year, convened by the Department of Health, Education, and Welfare’s Children’s Bureau, further explored the topic of child abuse.[28] A year later, the Children’s Bureau put forth a model reporting statute,[29] followed by ones suggested by the Council of State Governments, the American Humane Association, and the American Medical Association.[30]

 The initial model statutes contained common language in certain instances.[31] Underlying each, for instance, was a belief—based on conclusions drawn from the published academic studies—that child abuse primarily was perpetrated by parents.[32] However, the model statutes differed in other important ways.[33]  Just a few years after these initial model statutes emerged, the American Humane Association updated its position, advocating for legislation that would place “a reporting duty on all persons.”[34]

B. State Movements to Respond.

 The academic studies, combined with the release of these model statutes, prompted fast action by state legislatures nationwide. Colorado adopted the first abuse-reporting law in 1963,[35] and every other state, except Hawaii, followed suit within the next five years.[36] Nearly half of the states initially followed the Children’s Bureau’s model statute and limited the reporting duty to health care and medical professionals.[37] Eleven states also expressly required reporting by teachers or school administrators, while twelve states also named welfare or social workers.[38] Four states “made the duty to report universal by requiring disclosure by any person who possesses knowledge of a child abuse.”[39]

States began amending their laws not long after their adoption and continued in the years to follow.[40] Some states broadened the definition of mandatory reporter to include “any person.”[41] Others expanded the list of professionals who are required to file a timely report when they know or reasonably suspect abuse, including (but not limited to) school teachers, principals, and counselors; attorneys; clergy members; film developers; social workers; daycare providers; and psychologists.[42]

Meanwhile, the federal government also took action, eventually forming its own law with mandatory-reporter designations when Congress passed the Child Abuse Prevention and Treatment Act of 1974 (CAPTA).[43]

C. Mixed Results: A Statistical View.  

Research and surveys throughout the fifty-five years since abuse-reporting laws first emerged suggest a mixture of successes and failures.[44] One perceived success has been the continued increase in the number of children who receive a Child Protective Services (CPS) investigation, usually as a result of a submitted report regarding the child’s well-being.[45] California received more than 1,600 reports in the first five months after its reporting law first took effect.[46] Likewise, Illinois and New York generated hundreds of reports in the first months after their laws were adopted.[47]

As a nation, increases in investigations spurred by reports have also risen. About 60,000 annual cases were reported by 1974, skyrocketing to more than 1 million per year by 1980, and 2 million annually by the 1990s.[48] In 2016, nearly 3.5 million children received an investigation, up almost ten percent from the 3.2 million children who received one in 2012, according to data voluntarily submitted by states to the National Child Abuse and Neglect Data System (NCANDS).[49] The data showed professionals, including teachers, police officers, and social services workers—the types of professionals commonly identified as mandatory reporters by state laws—submitted sixty-five percent of the reports alleging child abuse and neglect, while the balance came from “nonprofessionals,” such as friends, neighbors, and relatives, or unclassified sources.[50]

 While the dramatic increase in reporting rates appears positive, other indicators suggest the mandatory reporter laws have not fully produced their intended effect. In the 1960s, when state abuse-reporting laws primarily named only physicians and health care professionals as mandated reporters, statistics showed many of the reports submitted were not substantiated. For instance, of California’s 1,600 initial cases submitted to state agencies, “many of the reports were not, in fact, reports of child abuse.”[51] One U.S. Department of Health and Human Services study in 1981 showed fifty-six percent of suspected cases reported nationwide were unsubstantiated.[52] Notably, and of greater concern, the department’s study revealed that sixty-eight percent “of the children identified . . . as meeting the definition of an abused or neglected child were not reported.”[53] Other research conducted by states in the late 1970s and early 1980s also highlighted the problem of unreported cases. In 1983, North Carolina estimated only one in seven cases of suspected abuse got reported, prompting its state legislature to pursue tougher legislation.[54] In an Iowa survey of mandated reporters around that same time, most respondents indicated they struggled knowing whether or not a child’s situation merited a report to authorities.[55]

Despite states’ continued modifications to mandatory reporter laws, more recent research reveals similar challenges persist today.[56] Of the 3.5 million children who received an investigation in 2016, 82.8 percent “were determined to be nonvictims of maltreatment.”[57]

The “Fourth National Incidence Study of Child Abuse and Neglect” (NIS–4), a comprehensive research report produced for Congress using data from 2005–2006, also painted a mixed picture.[58] The total number of maltreated children in the country stood at 553,000, a twenty-six percent decrease (after accounting for population changes) from the preceding NIS–3 conducted in 1993, which would suggest positive progress.[59] However, when the NIS–4 enlarged its scope from a traditional “harm standard” to a broader “endangerment standard,” and conducted supplementary studies using additional data points and information, the analysis shifted.[60]

The NIS–4 found that nearly 3 million children suffered an endangerment standard of maltreatment deserving of a report or investigation, double the number classified under the harm standard of maltreatment.[61] The report said “if all maltreated children were reported to CPS and CPS agencies followed their current screening policies, then a large majority of the maltreated children (80% or more) would receive CPS investigation. . . .[T]he implication is that mandated reporters do not report most of the uninvestigated children (two-thirds or more).”[62] Further, a supplementary survey of mandatory reporters found that twenty-four percent had never received written instructions or attended a workshop about their state’s reporting requirements.[63]

In the executive summary conclusion, the NIS–4 authors noted “(s)imilar to previous NIS findings, the NIS–4 again determined that the majority of maltreated children do not receive CPS investigation.”[64] The authors indicated a number of factors likely contributed to this continued problem, including differing approaches—depending on the type of suspected abuse involved—taken by CPS agencies, and a continued need for schools and CPS agencies to work better together to capitalize “on the unique role of school professionals as front-line observers.”[65]

While this decades-long research raises significant questions about the effectiveness of mandatory-reporter laws nationwide, scientific study of the subject at the international level argues these types of laws can make positive contributions.[66] Studying two similarly situated communities in Australia and Ireland, a group of researchers concluded the jurisdiction that possessed a mandatory reporting law fared far better with generating reports of cases later proven to be substantiated compared to the one that did not.[67] The researchers also noted that reporting laws require sufficient training, with jurisdictions needing to “invest sufficiently in the infrastructure, personnel, training and service provision required to deal with the expected higher number of reports. This investment is nevertheless worthwhile and should result in long-term returns.”[68]

D. Continued Cries for Help.

Several high-profile scandals throughout the past two decades—occurring in the midst of continued changes to abuse-reporting laws across the country—have reinforced the trends suggested by the statistics regarding underreporting.[69] Shocking reports of abusive acts, often perpetuated by the awareness and complacency of other adults and institutional leaders, have gripped the country.[70]

The Nassar scandal is the most striking recent example, not just because of the egregious nature of the former doctor’s acts, but the institutional awareness and inaction involved.[71] The fallout was nothing short of massive. The total number of victims to come forward ultimately reached nearly 350.[72] Nassar was sentenced to up to 125 years in jail.[73] The heads of Michigan State, the U.S. Olympic Committee, and USA Gymnastics each resigned.[74] And civil lawsuits emerged, with Michigan State alone agreeing to pay $500 million to settle claims brought by 332 of the alleged victims.[75]

The case also prompted the aforementioned federal legislative response, co-sponsored by Sen. Dianne Feinstein (D-CA) and Senator Charles Grassley (R-IA).[76] They aimed to amend the existing Child Abuse Victims’ Rights Act of 1990 through the Safe Sports Act.[77] It passed in January of 2018 by a 406–3 margin.[78] President Trump signed it into law two weeks later.[79]

The scandal also brought to light other institutional failures within USA Gymnastics. Additional investigative media reports revealed records showing fifty-four coaches had been accused of sexually abusing athletes over a ten-year span—many continued coaching while investigations remained open.[80]

Jessica Howard, one of the gymnasts abused by Nassar, served on the USA Gymnastics board of directors.[81] “(M)oney and medals” preoccupied the organization’s focus, she said.[82] “When a sexual abuse case came up during my time on the board, the concern was about the reputation of the coach—not the accusation of the athlete.”[83] Others relayed similar experiences: “I was disbelieved and even criticized by the [sic]some in the Gymnastics community for bringing this disturbing issue to light,” said one.[84] “Michigan State, the school I loved and trusted, had the audacity to tell me I didn’t understand the difference between sexual assault and a medical procedure,” said another.[85] Other amateur athletics organizations have been exposed for failing to report child abuse as well.[86] 

The U.S. Catholic Church’s prior shortcomings[87] again took center stage in August of 2018, when a confidential grand jury initiated by the Pennsylvania Attorney General released a redacted, 900-page report based on its two-year investigation of six of the eight Catholic dioceses in the state.[88] The grand jury identified more than 300 “predator priests” who victimized at least 1,000 boys and girls for decades—and were largely enabled “by church leaders who preferred to protect the abusers and their institution above all.”[89] The months following the latest report prompted demands nationwide for reform, with one petition signed by 6,100 Catholic theologians, educators, and lay leaders calling for all of the church’s bishops in the American conference to resign.[90] The Justice Department also opened an investigation into the Pennsylvania dioceses, sending federal grand jury subpoenas to at least seven of them.[91] Other faith traditions have wrestled with their own child-abuse scandals as well,[92] the most recent example arising in February of 2019 when an investigative report revealed 700 victims over a twenty-year period in the Southern Baptist Convention.[93]

For decades, the Boy Scouts of America (BSA) dealt with similar problems. It kept a confidential blacklist known as the “perversion files” with the intent of screening out men expelled from the organization for alleged sexual abuse.[94] But a review of the files dating between 1970 and 1991 showed more than 125 cases involving men who remained in their positions and continued to molest boys, even after the organization was notified of detailed allegations.[95] District executives involved with reviewing those files often opted not to notify authorities, including one executive who eventually became BSA’s chief executive and was credited by the organization for implementing “a requirement in 2010 that any suspicion of abuse be reported to police.”[96]

Like Michigan State, other colleges and universities have also faced scandals involving officials who did not report. The University of Southern California agreed to pay $215 million to settle a federal lawsuit filed by hundreds of women who said the school’s head gynecologist sexually abused them, many when they were younger than 18, despite numerous reports of his actions dating back to at least 2000.[97] In 2011, Gerald Sandusky, the retired defensive coordinator for Penn State University’s famed football program, was indicted on 48 counts of child abuse.[98] He was ultimately convicted on 45 of those counts.[99] The subsequent independent investigation, led by former Federal Bureau of Investigator Director Louis Freeh, prompted Freeh to make this observation:

Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky's child victims by the most senior leaders at Penn State. The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized.[100]

With seemingly constant news stories detailing the sexual abuse that permeates throughout numerous facets of our nation—athletics, government, religion, education—and increasing calls for change through movements like #MeToo, state and federal legislators began reevaluating their laws.

II. Legislative Responses

This Part will examine the statutory approach taken at the federal level, as well as the approach taken in Colorado, looking closely at the numerous modifications made throughout the past fifty-five years to try to address the continued challenges of abuse and the failures to report it.

A. Federal.

1. Child Abuse Prevention and Treatment Act of 1974. The federal government first raised child welfare as a priority with the creation of the Children’s Bureau in 1912, then through the adoption of the Social Security Act in 1935, which included a provision authorizing the bureau to work with state public welfare agencies.[101] However, it did not enact its first law specifically addressing child abuse until the passage of the Child Abuse Prevention and Treatment Act of 1974 (CAPTA).[102] The law has undergone numerous amendments since then and received its most recent reauthorization from Congress in 2010.[103]

 CAPTA provides federal funding and guidance to states on the “prevention, assessment, investigation, prosecution, and treatment activities” related to child abuse; establishes a federal definition of child abuse and neglect; and creates mechanisms to research and collect a variety of data, including abuse reports, from the states.[104] The law currently defines child abuse, at a minimum, as “(a)ny recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act, which presents an imminent risk of serious harm.”[105] The original CAPTA broke new ground by including “sexual abuse” in its definition, something many states overlooked at the time.[106] By 1976, all states incorporated sexual abuse into their statutes, “wrench(ing) sexual abuse from obscurity.”[107]

Part of CAPTA’s evolution included a shift in the guidance pertaining to abuse-reporting, a controversial change at the time. Regarding how states should address mandatory reporters, CAPTA originally recommended states use “the language ‘shall provide for the reporting of known and suspected instances of child abuse and neglect’ as a requirement for the states to qualify for federal assistance.”[108] But the federal agency responsible for the law’s implementation changed the wording “to read that states ‘must provide for the reporting of known or suspected instances of child abuse and neglect’ to qualify for federal aid.”[109] The shift from “shall” to “must” prompted at least one senator to object out of a fear that the change would unintentionally overburden a larger number of unsuspecting adults. Senator Walter Mondale (D–MN), who drafted CAPTA, wrote to the secretary overseeing the federal agency at the time and expressed worries about the “wide range of individuals,” including nonprofessionals, who would be required to report suspected cases under the changed wording.[110] Such an expansion, Mondale said, would further strap the limited funding and resources available from the federal government, and possibly increase “intrusion of the government into family life.”[111]

State grants, made possible by CAPTA, are contingent upon each state submitting and following prevention and response plans aligned with the federal definition of abuse and abuse-reporting, and the regular reporting of data to the federal government.[112] Funding has remained a constant concern, shrinking as low as $16.2 million in 1982.[113] From fiscal years 2010 to 2015, the amounts authorized were about $40 million.[114] Of the total funds doled out annually, seventy percent are allocated based on the population size of the states, and the remaining thirty percent are distributed based on “an amount that bears the same proportion to such amount appropriated as the amount of private, State or other non-Federal funds” secured by each state.[115]  

While CAPTA sets forth definitions and offers funding incentives, the responsibility for enacting and enforcing child abuse laws generally, and abuse-reporting laws specifically, still ultimately resides with the states.[116] While grants for training were made possible through CAPTA, the Government Accounting Office in 1979 “found that training of professionals to meet their reporting responsibilities was not sufficient. . . . [F]rom a national survey of professionals . . . lack of training and deficits in knowledge of reporting procedures are the main reasons for not filing complaints.”[117]

2. Victims of Child Abuse Act of 1990. Congress passed the Victims of Child Abuse Act of 1990, due in large part to the continued challenges presented by investigating 2 million annual reports of abuse.[118] The law mostly focuses on grant-making mechanisms and guidelines to strengthen investigations, child advocacy, and the training of state-level judicial personnel and practitioners.[119] However, the law also includes a child-abuse reporting requirement.[120] Professionals working on federal land or in a federally operated or contracted facility who “learns of facts that give reason to suspect that a child has suffered an incident of child abuse, including sexual abuse, shall as soon as possible make a report of the suspected abuse. . . .”[121] The list of professionals named by the law is comparatively short.[122]

The law also states all professionals mandated to report “shall receive periodic training in the obligation to report, as well as in the identification of abused and neglected children.”[123] Funding authorized from fiscal years 2014–2018 to carry out provisions of the act was $2.3 million annually, not less than eighty percent of which was to be used for grants.[124] The act also grants civil and criminal immunity for reports made in good faith.[125]

A later amendment to the law instituted fines and prison sentences of up to one year for persons who “learn of facts that give reason to suspect” abuse “and fails to make a timely report.”[126]

3. Safe Sports Act. The Safe Sports Act further amended the Victims of Child Abuse Act of 1990.[127] Spurred to action by the USA Gymnastics controversy, Senator Feinstein initiated the bill.[128] Senator Feinstein “said a patchwork of state laws on reporting suspected sex abuse made it necessary to enact a uniform national standard that would apply to amateur sports groups such as USA Gymnastics.”[129] Senator Grassley, who also sponsored the Victims of Child Abuse Act, became a sponsor and noted USA Gymnastics’ apparent policy requiring formal written complaints from victims and their families “might have allowed predators to victimize children long after gymnastics officials had reason to suspect sexual abuse.”[130] Recognizing “the average perpetrator strikes multiple times before being caught,”[131] Senator Grassley highlighted the importance “that these crimes be promptly reported and investigated.”

The Safe Sports Act makes a number of changes, including an expanded definition of a mandatory reporter to now include

an adult who is authorized, by a national governing body, a member of a national governing body, or an amateur sports organization that participates in interstate or international amateur athletic competition, to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body, a member of a national governing body, or such an amateur sports organization.[132]

The amendment also specifies making a report “as soon as possible” means “within a 24-hour period.”[133] Working in tandem with the Victims of Child Abuse Act, a mandated reporter under the Safe Sports Act who fails to fulfill his or her duty faces a fine, a prison term of up to one year, or both.[134]

Though funding support was removed after the bill was unanimously passed by the Senate,[135] the Safe Sports Act organized the United States Center for Safe Sport, an independent organization with jurisdiction over all amateur athletic organizations at the national level.[136] The center is charged with “develop(ing) training, oversight practices, policies, and procedures” for abuse prevention; accepting reports of abuse allegations; and instituting “oversight procedures” such as “consistent training” for all adults in contact with minors.[137]

B. Colorado

Colorado pioneered child-abuse reporting laws for the country, making it a helpful case study on the evolution of state abuse-reporting laws, including perceived strengths and weaknesses. Where appropriate, Colorado’s law is compared and contrasted with the laws of other states to further develop an understanding of what works and what merits improvement.

1. Background. Colorado first adopted its abuse-reporting law in 1963, thanks largely to Dr. C. Henry Kempe, who co-authored “The Battered-Child Syndrome” and also chaired the pediatrics department at the University of Colorado Medical Center.[138] Similar to the Children’s Bureau model statute, the state first limited its list of mandated reporters to “doctors and institutions.”[139] The state legislature contemplated substantive changes in the immediate years to follow.[140]

In 1987, the legislature made more modifications, shaping most of the form and structure of the law in place today.[141] Just prior to the changes made in 1987, one commentator noted Colorado’s law still listed a specific set of professionals as designated reporters whose duty would be triggered if they had “‘reasonable cause to know or suspect abuse,’” even though a growing number of other states had broadened the list of mandatory reporters to “‘any person’ having reasonable cause to believe a child has been abused.”[142] Colorado outlined “specific categories constituting abuse or neglect,” that “must threaten the health or welfare of the child,” and focused on the child’s well-being, whereas other states like Alaska placed a greater focus on whether the reporter could tell the child’s condition resulted from actions by a person responsible for the child’s welfare.[143] The maximum penalty for a failure to report was a $750 fine.[144] 

2. Current Statute. The Child Protection Act of 1987 has been amended at least thirty-one times since its adoption.[145] Like the law that preceded it, the current law maintains a list of professionals mandated to report—but that list now measures about forty-five professions total and includes familiar roles like physicians and teachers, and more recent additions like clergy members, daycare workers, and paid directors and coaches of private sports organizations or programs.[146]

These individuals must report “immediately” when there is “reasonable cause to know or suspect that a child has been subjected to abuse or neglect.”[147] The law does not define “immediately” for the purposes of an initial report.[148] No case law of precedential value defines it either.

The law focuses on the child’s condition for determining reasonable cause, rather than the source of the cause.[149] Under definitions used for the law, Colorado reinforces this broader posture by listing third parties as a potential source of the cause.[150]

Those who fail to fulfill their abuse-reporting obligations face stiffer criminal sanctions now than prior to 1987.[151] A proven willful violation is a Class 3 misdemeanor that carries a maximum punishment of a $750 fine, six months’ imprisonment, or both.[152] The state also recognizes civil liability for reporters whose failure to report is the proximate cause of injuries suffered by a victim.[153] Only seven other states do the same.[154]

A reporter can either contact “the county department, the local law enforcement agency, or … the child abuse reporting hotline,” then must follow up “promptly” with a written report.[155] To date, Colorado’s hotline system only consists of a toll-free phone number—no online submission system is available.[156]

The state encourages “permissive” reporting in which any other persons not named as mandatory reporters are still encouraged to report.[157] Colorado also offers immunity from civil or criminal liability for those who make a report later determined to be unsubstantiated, and presumes the reporter made the report in good faith “unless a court . . . determines that such person’s behavior was willful, wanton, and malicious.”[158] A reporter’s identity is kept confidential except in limited circumstances.[159]

The law also emphasizes training provided to county departments to investigate reports, relay confirmed incidents to the state department, and handle numerous administrative details—but the law does not require training of mandatory reporters, or any funding designed to assist with such training.[160] In subsequent media reports regarding shortcomings of Colorado’s child welfare system, lack of funding and training repeatedly surfaced as cited problems, whether tied to reporting, investigations, or interventions.[161] Multiple investigative articles have also noted a lack of enforcement with Colorado’s mandatory reporter law.[162] While the state receives roughly 80,000 reports each year, of which seventy-five percent come from mandated reporters,[163] only forty-six criminal cases were brought by prosecutors between 2010 and 2018 against individuals who failed to fulfill their mandated reporting duty.[164]

In 2019, the Colorado legislature addressed one aspect of the state’s mandatory reporter law, amending it to establish a three-year statute of limitations for criminal charges to be brought against mandatory reporters who fail to fulfill their duties.[165] The original bill proposed five years.[166] The law previously did not address a statute of limitations.[167] Additionally, a separate bill during the 2019 session, though not directly tied to mandatory reporting, proposed to establish a “child abuse and response evaluation network,” with the goals of educating and training additional medical and health professionals to evaluate the roughly 33,000 cases of reported child abuse that are “screened in for an assessment” each year.[168] The bill included first-year funding of at least $138,927, and second-year funding of at least $715,580.[169] Just before this Comment’s publication, the bill was passed and signed into law—and its effects remain to be seen.[170]

3. Notable Colorado Court Decisions. Colorado’s courts have rarely addressed the state’s fifty-six-year-old statute. In one 1992 case, the Colorado Supreme Court held that the Colorado Child Protection Act of 1987, including the abuse-reporting provision, did not violate the due process rights of two parents and was not unconstitutionally vague.[171] Of the handful of Colorado appellate court decisions, only a few directly address the abuse-reporting law’s validity or effect.[172] At the county level, one specific case from 1980 also bears noting. In the county case, a staff psychologist from Children’s Hospital, who faced prosecution for failing to report suspected abuse, filed a motion arguing Colorado’s law was unconstitutional because it was “vague, discriminatory and denies him due process and equal protection under the law.”[173] The three-judge panel in Denver County Court denied the motion, stating the objective standard set by the law—when a person “has reasonable cause to know or has reasonable cause to suspect” abuse—was sufficient. Actual knowledge of abuse was not “constitutionally mandated.”[174]  

At the federal level, the U.S. District Court for the District of Colorado in 2000 ruled that the alleged failure of one Colorado county’s social services department to report abuse did not give rise to a substantive due process claim for the plaintiffs who were victims of the alleged abuse.[175] This decision again avoided an outcome that would render the law unconstitutional.

4. Michigan and Pennsylvania: Comparisons and Contrasts. High-profile scandals in Michigan and Pennsylvania make both states prime points of comparison for Colorado regarding the strengths and weaknesses of each state’s respective abuse-reporting laws.

Michigan.

Like Colorado and other states, Michigan modified its child-abuse reporting law in the mid-1970s, giving the basic form and structure of the current law in place today.[176] The state has made at least fourteen amendments since then.[177] Michigan lists nearly thirty types of professionals who are mandatory reporters.[178] The duty triggers when they have “reasonable cause to suspect child abuse or neglect.”[179]

When the duty to report arises, mandatory reporters “shall make an immediate report” to the state’s centralized processing center by telephone “or, if available, through the online reporting system.”[180] “Immediate” is not defined by the law, nor is it defined by any court decision of precedential value. The state also requires the reporter to file a written report within seventy-two hours.[181] Michigan provides a way for mandatory reporters to submit a case online.[182]Michigan’s attorney general also set up a separate online submission system for actual or suspected cases of abuse involving Catholic parishes in the state.[183]

Michigan also encourages “permissive” reporting by nonmandated reporters.[184] Reports are presumed to be made in good faith, and reporters receive civil and criminal immunity, even if a report is later found unsubstantiated, unless an opposing party can show the report was not made in good faith.[185] A reporter’s identity is kept confidential, except in limited circumstances.[186]

Mandatory reporters who knowingly fail to fulfill their reporting obligations commit a misdemeanor “punishable by imprisonment for not more than 93 days or a fine of not more than $500, or both.”[187] Like Colorado, the statute also recognizes civil liability for a failure to report.[188]

The law mentions training should be provided for professionals and state departments involved with taking and investigating reports, but training for mandatory reporters is not included.[189]

In the spring of 2018, against the backdrop of the Nassar scandal at Michigan State, the state legislature contemplated new bills amending the abuse-reporting law.[190] One bill would add “paid K-12 school or college athletics coaches” to the list of mandatory reporters—although a prior version of the proposal also included volunteers.[191] The other bill proposed funding for training materials for mandatory reporters.[192] As of early 2019, both proposals remained stalled in the legislature.

Pennsylvania.

Pennsylvania reformed its abuse-reporting law significantly in 2014 following the Sandusky scandal at Penn State.[193] It expanded its definitions of “abuse” and “perpetrator”; clarified reporting processes; and added protections for reporters, which led to significantly more reports the year after changes went into effect.[194] The law now lists sixteen individuals who are mandated to report.[195] When the mandatory reporter “has reasonable cause to suspect that a child is a victim of child abuse,” he or she is required to make an oral report immediately through a toll-free telephone hotline or the state’s online submission system.[196] The law does not define “immediately,” nor does any court decision of precedential value provide a definition. The mandatory reporter also must submit a written report within forty-eight hours of making the oral report to the prescribed department or county agency unless the initial report was filed through the online system.[197]

Pennsylvania also encourages “permissive” reporting by nonmandated reporters.[198] The state presumes reports are made in good faith and offers civil and criminal immunity unless evidence shows the report was not made in good faith.[199]

Penalties in Pennsylvania are among the harshest in the nation.[200] A third-degree felony results if a mandatory reporter “willfully fails to report,” the child abuse involved constitutes a first-degree felony or higher, and the reporter has direct knowledge of the nature of the abuse.[201] The maximum sentence is seven years in prison and a $15,000 fine.[202] A reporter who commits a subsequent offense involving those elements commits a second-degree felony,[203] which carries a maximum ten-year prison sentence and a $25,000 fine.[204] In all other cases involving a failure to report, the reporter commits a second-degree misdemeanor,[205] which carries a maximum two-year prison sentence and $2,000 fine.[206]

Unlike Colorado and Michigan, Pennsylvania heavily emphasizes educating reporters. Its law requires the state to make training and information available to mandatory and permissive reporters regarding what constitutes child abuse, who must report, how the reporting process works, and potential penalties for failing to report.[207]

However, the sweeping changes instituted by Pennsylvania came with unexpected consequences. The state’s auditor general, citing the abuse-reporting law changes as one major factor, issued an alarming report in November of 2017 indicating the state’s child welfare system has been severely flooded by reports and cannot keep up.[208] 

The laws in Michigan and Pennsylvania show Colorado possesses an opportunity to strengthen its system—yet caution still must be exercised in order to prevent more unsubstantiated reports from flooding an already-strained system.

III. Outside Perspectives: Comments and Critiques of Abuse-Reporting Laws

 Numerous commentators have written about child-abuse reporting laws since their emergence in the 1960s. In many instances these analyses have concluded the laws—well-intentioned as they may seem—are not set up well to achieve their intended results. Six arguments consistently drive this conclusion.

The first argument is that the lack of resources provided with the mandatory reporting laws contribute to their ineptitude to solve the underlying problem. Monrad Paulsen, a Columbia Law professor, provided one of the earliest evaluations of the abuse-reporting law movement in 1967.[209] Paulsen noted one of the primary risks the laws ran was too few resources allocated to adequately educate, publicize, and train reporters on their obligations.[210] He quoted a New York Times editorial critiquing the state’s abuse-reporting law, stating “(n)o law can be better than its implementation, and its implementation can be no better than the resources permit.”[211] Paulsen added: “Without adequate resources to back up a reporting plan the entire effort is an exercise in futility.”[212] Others in the years to follow have echoed this sentiment.[213]

The second argument is that the general public’s lack of awareness about reporting laws contributes to their overall ineffectiveness. Publicity for the laws is scarce in most states and where publicity does exist, it is hard to find.[214] As statistical research over the decades has shown, many mandatory reporters do not know their duty exists, and few receive any training regarding how to fulfill it.[215] The current statutes in Colorado and Michigan underscore this point: training for reporters is not formally incorporated or funded in any way.[216]

The third argument for why abuse-reporting laws do not work as well as they should is the tendency for reporting laws to cause overreporting. The NIS–4 study, as well as its predecessors, revealed large numbers of unsubstantiated reports.[217] Some commentators point out unsubstantiated reports are inevitable because in some cases, human error occurs, and in other cases, the abuse cannot be proven.[218] Others, though, point out the high rate of unsubstantiated cases only further saps limited resources for “no benefit to children.”[219] As laws become more expansive but lack funding for publicity or training, the likelihood for resource-sapping errors will remain high.[220] Furthermore, as some states embrace making all adults mandatory reporters—such as Florida did in 2012[221]—the likelihood for error only further increases, with some commentators suggesting states avoid an “all adult” standard and perhaps even abolish permissive reporting for nonprofessionals.[222]

The fourth argument regarding the reasons why abuse-reporting laws do not work contends broader reform is urgently needed first.[223] Child welfare systems, as a whole, appear broken and in need of major changes that extend well beyond abuse-reporting mandates.[224] Modifying or reforming reporting laws may produce only a minimal effect since child protective services, investigatory bodies, and agencies require substantial fixes first.[225]

The fifth argument suggests the lack of broader reform, coupled with the massive increase in reported cases (many not involving imminent danger to children), indicates reporting laws are realizing their goals “at tremendous cost,” intruding upon family privacy and tapping already limited resources.[226] Narrowing the types of conditions necessary to trigger a reporting duty, and further educating the professionals mandated to act when those conditions are present, should be given “serious consideration,” one commentator argued.[227]      

And the sixth argument is that legislation will be subject to constitutional scrutiny. One commentator from the mid-1980s speculated constitutional challenges to abuse-reporting laws would eventually be brought.[228] The “use of broad, ambiguous language to define reportable abuse,” the commentator wrote, might render the laws too vague, violating a reporter’s “constitutional right to due process of law, contained in the Fifth and Fourteenth Amendments.” The Colorado Supreme Court rejected this argument several years later.[229] A Michigan appellate court also rejected this argument in 1988.[230] And in 2004, the Missouri Supreme Court also rejected this argument, ruling the state’s abuse-reporting law “is readily understandable by ordinary persons. These are words of common understanding that speak for themselves and provide fair notice of the required conduct.”[231]  

 Rep. Justin Amash (R-MI) raised additional constitutional questions about abuse reporting. He was one of three congressional members to vote against the Safe Sports Act—despite the presence of the Nassar scandal in his home state.[232] Amash said the Constitution limits Congress to criminalize only a certain few activities of which child-abuse reporting is not included.[233] And the presence of concurrent federal and state abuse-reporting laws, he said, runs the risk of having an alleged violator charged for the same crime twice, a violation of the Fifth Amendment’s Double Jeopardy Clause.[234]

IV. Analysis: Six Recommendations Regarding Paths Forward

Mandatory child-abuse reporting laws serve two important functions. First, their very existence conveys an important public policy message from the federal and state governments that child-abuse is a real problem, one that demands society’s complete attention, and one that deserves vigilant action. Second, because the victims of this abuse are among the most vulnerable in our midst, compelling adults in positions of authority and responsibility to act only makes logical sense. Mandatory reporters are often the only persons in a position to intervene. They have an opportunity to both end the suffering of a victimized child and to stop a perpetrator before he or she inflicts further harm on current or future victims. These are laudable objectives that both meet the needs of children who may not be able to help themselves and also address critical public health and safety concerns. Such a statutory requirement thus serves an important overarching purpose.

Yet, many indicators suggest these laws do not work well. Statistics reveal a number of mandatory reporters are not aware of their duties or how to fulfill them. Statistics also show the number of reports filed regarding suspected abuse continue to swell, but a significant portion of those reports end up unsubstantiated. Meanwhile, countless cases of actual maltreatment go unreported, and scandals involving institutions and leaders who fail to act continue to mount. As the #MeToo movement brings more scandals to light and remains a visible part of the national discussion about abuse and assault, these deficiencies only will grow more glaring. Public impatience for these shortcomings will likely expand. And the history of recent decades suggests lawmakers will act in an attempt to fix the problem—or at least try to appear as though they are doing something to respond.

Against this backdrop, the following six recommendations address what should—or should not—be done about abuse-reporting laws in response to these deficiencies. These recommendations are designed to offer pragmatic steps forward for legislators seeking possible solutions to gain ground on the country’s child abuse epidemic.

Notably, these recommendations must be weighed in light of the outcome to Gamble v. United States. Should the U.S. Supreme Court decide the facts of that case constitute a Double Jeopardy Clause violation, both Congress and state legislatures will need to re-assess whether their respective abuse-reporting laws overlap enough to create Double Jeopardy Clause concerns.[235]

1) Clearly define “immediately.” The Safe Sports Act smartly defines “immediately” to mean twenty-four hours, giving reporters a precise deadline regarding how quickly they must act when an actual or reasonably suspected case arises.[236] However, Colorado, Michigan, and Pennsylvania, as well as many other states, do not define “immediately” for purposes of making an initial report.[237] Such lack of clarity creates an added, unnecessary layer of ambiguity for mandatory reporters in an already complicated and stressful situation. States should modify the language of their existing laws to remove this uncertainty. 

2) Find ways to create more institutional accountability. Since their inception, and throughout their evolution, mandatory reporter laws have focused on compelling certain individual professionals to act. But institutions as employers—whether schools, health care providers, youth sports organizations, religious entities, or the like—are not directly held accountable.[238] This is surprising. Legislators would be wise to investigate ways to incorporate this accountability for institutions.

One possible model for doing this can be found in the standards set—both by statutes and the courts—for employers when determining liability for sexual harassment in the workplace. In two pivotal 1998 cases decided simultaneously by the Supreme Court, Burlington Indus. v. Ellerth and Faragher v. City of Boca Raton, the Court established an employer’s affirmative defense to liability or damages by showing, by a preponderance of the evidence, that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.”[239] Such a showing enables employers to implement policies, practices, preventive measures, and response mechanisms addressing sexual harassment. Should an allegation still arise, those employers are subject to applicable statutory or civil liability unless they raise the available affirmative defense by demonstrating the steps they took to prevent or respond to sexual harassment.

In a similar way, states could integrate employer-specific language with their mandatory abuse-reporting laws. This language would outline steps and processes required of employers who interact with children and youth, including annual training of staff members and volunteers to identify abuse and to properly report it when discovered. Employers in compliance would be able to raise affirmative defenses if a mandatory reporter failed—intentionally or otherwise—to report abuse that resulted in harm. But noncompliant employers would receive no such protections, making way for potentially sizable damages claims.

Creating this greater institutional accountability would yield four immediate benefits. One, it would prompt entities that have a direct interest in the well-being of children to take a more active role in informing, educating, and training the mandated reporters under their supervision who are responsible for helping those children. Two, it would create greater continuity, consistency, and familiarity each year in the education and training of individual reporters and the fulfillment of their responsibilities. Three, it would establish administrative trails documenting what individual reporters know about their duties should an allegation later arise. And four, it would help address the limited funding for education and training supplied by government entities.

The laws of Colorado and Michigan, in particular, include no specific funding mechanisms to ensure mandatory reporter laws are promoted, much less taught, to those who fall under them.[240] This problem was amplified at the national level when the discussion leading up to the passage of the Safe Sports Act recognized that financial support was removed.[241] The Victims of Child Abuse Act of 1990 includes a mandate for periodic training of reporters, but funding is limited as well.[242] Limited resources—as Paulsen and others predicted— hampers the effectiveness of those shouldering a legal responsibility to act when reasonable suspicion of abuse arises.[243] By adding institutional accountability to mandatory-reporter laws, employers with direct contact to children and youth would have a significant incentive to help shoulder the financial burden.

3) Resist taking a blanket approach. At least one of the model statutes from the 1960s recommended making all adults mandatory reporters.[244] After the Penn State scandal, Florida reacted by designating all adults as mandatory reporters.[245] With the #MeToo movement bringing numerous new controversies to light, including USA Gymnastics, other states may be tempted to take a similar blanket approach. But such an all-encompassing strategy may cause more harm than good.[246] As changes have been made nationwide to abuse-reporting laws throughout the past two decades, the number of reports filed has skyrocketed—but rather than reduce the occurrence of child abuse, the research shows the rapid increase has merely produced more unsubstantiated reports while other legitimate cases go unreported.[247] Instituting a blanket approach will likely compound this problem, radically expanding the number of untrained adults legally required to report while further overwhelming a system not currently positioned to respond to their reports.

Similarly, aggressive expansion of the list of individuals mandated to report would lead to more problems. Early on, many of these laws named only health care professionals, such as doctors.[248] Modifications by states over the past two to three decades now make dozens of professions mandatory reporters. Again, the resulting surge in reports has been difficult for departments and agencies to absorb.[249]

However, selective tweaking is still recommended with respect to the types of individuals defined as mandatory reporters. The Safe Sports Act incorporates both paid and volunteer coaches and directors.[250] Colorado and Pennsylvania include paid coaches and directors, but do not name volunteers.[251] Michigan names neither.[252] Given the level of interaction and influence these individuals possess today with children and youth, coaches and directors (both paid and volunteer) should be named. Relatedly, university officials with oversight of facilities used by children and youth are absent from the Safe Sports Act, as well as state laws, including Colorado.[253] These individuals should be listed as mandatory reporters given the frequency with which children and youth now regularly visit campuses for sports, camps, arts programs, and other activities.

Also missing from the list of mandated professions in the three states are the directors and leaders—paid or volunteer—of nonprofit organizations serving children and youth, such as scouting groups, children’s and youth ministries, and performing arts programs.[254] Children and youth spend vast amounts of time engaged in extracurricular activities such as these. Including adults positioned on these front lines seems only logical.

4) Toughen criminal sanctions. The most shocking high-profile scandals of recent years were the product of willful decisions by persons in positions of authority to look the other way.[255] Mandatory abuse-reporting laws should target these types of individuals in the hopes of encouraging them to think twice and come forward instead. 

The federal laws institute fines and prison sentences of up to one year for mandatory reporters who fail to make a timely report.[256] In Pennsylvania, a mandated reporter’s willful failure to report can lead to felony charges, depending on the severity of the abuse and whether the reporter previously violated the law.[257] But in Colorado and Michigan, proven willful violations—including repeat violations—are misdemeanors.[258] And in the case of Colorado, and presumably many other states, violations often are not prosecuted.[259] Instituting longer sentences, like the federal government did, and felony designations for convictions, like Pennsylvania did, puts sharper teeth into these laws.

Relatedly, given the difficulties with the lack of awareness and training among a significant portion of reporters, a more definitive line should be drawn between willful violators and those who, for one reason or another, make a good-faith error. The federal law does not distinguish intent for a violation, making even an honest mistake subject to a particularly harsh penalty (up to one year of prison).[260] At the state level, a correspondingly lighter penalty for a first-time offense involving a good-faith error, such as a small fine, would be more appropriate.[261]

5) Use online capabilities. Pennsylvania’s and Michigan’s laws specifically provide online methods for making a report and their respective websites accept online reports.[262] Colorado and the federal government make no mention of online reporting, much less make such a tool available.[263] Given the continued adoption of online technologies, and the increasing expectations from the public to conduct a variety of activities online, the federal and state governments should prioritize web-based reporting through the language of their laws and the functionality of their websites.

Furthermore, the federal and state governments should make information about abuse-reporting requirements easy to find on their websites, including visible mentions of the professions mandated to report, the deadlines involved with reporting, and the types of signs that constitute reasonable suspicion of abuse.[264] Ideally, these sites will one day incorporate online training that can be used by mandatory reporters and institutional employers incentivized to get their mandatory reporters trained.

6) Recognize the success of abuse-reporting laws depends upon larger systemic change. Addressing the numerous challenges confronting the nation’s child-welfare systems is beyond the scope and intent of this Comment. However, any commentary regarding mandatory abuse-reporting laws must include a recommendation regarding the larger systemic changes needed first.[265] The departments and agencies charged with protecting children often deal with understaffing, limited budgets, and other challenges. Improved mandatory reporter laws will likely produce minimally positive results until the broader system of child protection is improved first. More legislative efforts, like the one in Colorado in 2019 to create a child abuse and response network, will be needed.[266]

This recommendation is not meant to suggest the other recommendations are consequently rendered moot. Rather, it simply acknowledges the limitations for success that these recommended changes and improvements will achieve until the larger system receives the attention and help it needs.

Conclusion

Abuse perpetrated against children remains a serious problem in the United States. The abuse-reporting laws created to help combat the problem have not worked as effectively as they should. However, there are opportunities to make these laws work better. Simply resourcing current schemes would make an immediate difference, helping ensure their existence is not an “exercise in futility.”[267] Implementing the six recommendations offered in this Comment would make an even greater difference. The scourge of child abuse can never be fully eradicated. But further reducing the risk of its occurrence is still within reach. It requires educating and equipping those in the best position to act, and making certain these men and women, and the institutions that employ them, fully understand the ramifications they—and the most vulnerable among us—face if they do not act.

[1] See infra notes 6–11.

[2] Id.

[3] See infra notes 12–20.

[4] Thomson Reuters, Mandatory Child Abuse Reporting, in 50 State Statutory Surveys: Criminal Laws: Crimes (0030 Surveys 13, October 2018) [hereinafter 50-State Survey].

[5] See infra notes 6–20.

[6] Matt Carroll et al., Church Allowed Abuse by Priest for Years: Part 1 of 2, Boston Globe (Jan. 6, 2002), https://www.bostonglobe.com/news/special-reports/2002/01/06/church-allowed-abuse-priest-for-years/cSHfGkTIrAT25qKGvBuDNM/story.html.

[7] Kevin Johnson, 45 States Looking to Pursue Catholic Church for Documents on Abuse by Priests, Pennsylvania Attorney General Says, USA Today (Dec. 17, 2018), https://www.usatoday.com/story/news/politics/2018/12/17/josh-shapiro-more-horrors-coming-catholic-clergy-abuse-scandal/2329159002/.

[8] Robert Downen et al., Abuse of Faith, Houston Chronicle (Feb. 10, 2019), https://www.houstonchronicle.com/news/investigations/article/Southern-Baptist-sexual-abuse-spreads-as-leaders-13588038.php. The investigation found “roughly 380 Southern Baptist church leaders and volunteers have faced allegations of sexual misconduct … includ(ing) those who were convicted, credibly accused and successfully sued, and those who confessed or resigned. … Some still work in Southern Baptist churches today.”

[9] Jason Felch, Top Executives Did Not Report Suspected Scout Abuse Cases, Files Show, L.A. Times (Dec. 30, 2012), http://www.latimes.com/local/california/la-me-scouts-leaders-2-20121231-story.html.

[10] Protecting Young Victims from Sexual Abuse Act of 2017: Hearing on S. 534 Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Sen. Chuck Grassley, Chairman, Senate Judiciary Comm.) [hereinafter Grassley Statement].

[11] Erica M. Kelly, Note, The Jerry Sandusky Effect: Child Abuse Reporting Laws Should No Longer Be “Don’t Ask, Don’t Tell,” 75 U. Pitt. L. Rev. 209, 209–10 (Winter 2013).

[12] Juliet Macur, In Larry Nassar’s Case, a Single Voice Eventually Raised an Army, N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/sports/rachael-denhollander-nassar-gymnastics.html.

[13] Id.

[14] Will Hobson, At Larry Nassar Sentencing Hearing, a Parade of Horror and Catharsis, Wash. Post, (Jan. 18, 2018), https://www.washingtonpost.com/sports/olympics/at-larry-nassar-sentencing-hearing-a-parade-of-horror-and-catharsis/2018/01/18/19bed832-fc55-11e7-8f66-2df0b94bb98a_story.html?utm_term=.d43b55b84237.

[15] Victor Mather, Olympic Gymnast McKayla Maroney Says She Too Was Molested by Team Doctor, N.Y. Times (Oct. 18, 2017), https://www.nytimes.com/2017/10/18/sports/olympics/gymnast-mckayla-maroney-team-doctor-sexual-abuse.html.

[16] Id.

[17] me too., https://metoomvmt.org/ (last visited Mar. 31, 2019).

[18] S. 534 (or P.L. 115-126, Feb. 14, 2018, 132 Stat 318) (2018); Maureen Groppe, Trump Signs Law to Prevent Abuse of Athletes—a Response to USA Gymnastics Scandal, The Indianapolis Star (Feb. 14, 2018), https://www.indystar.com/story/news/politics/2018/02/14/trump-signs-law-prevent-abuse-athletes-response-usa-gymnastics-scandal/336879002/.

[19] S. 534 (or P.L. 115-126, Feb. 14, 2018, 132 Stat 318) (2018).

[20] Id.

[21] Erica M. Kelly, Note, The Jerry Sandusky Effect: Child Abuse Reporting Laws Should No Longer Be “Don’t Ask, Don’t Tell,” 75 U. Pitt. L. Rev. 209, 214–15 (Winter 2013). More than 100 bills—each geared toward amending existing mandatory abuse-reporting laws—were introduced in 30 states, including Florida, Pennsylvania, and Oregon, in the year after the Penn State scandal. Many became law.

[22] See discussion infra Section II.B.

[23] See discussion infra Section I.C.

[24] 50-State Survey, supra note 4.

[25] 50-State Survey, supra note 4.

[26] See generally Monrad G. Paulsen, Child Abuse Reporting Laws: The Shape of the Legislation, 67 Colum. L. Rev. 1 (Jan. 1967); Margaret H. Meriwether, Note, Child Abuse Reporting Laws: Time for a Change, 20 Fam. L.Q. 141 (Summer 1986).

[27] Meriwether, supra note 26, at 142.

[28] Id.

[29] Id.

[30] Paulsen, supra note 26, at 2–3.

[31] Id. at 3.

[32] Id. at 1; see infra note 56 for recent research reinforcing this perspective.

[33] Paulsen, supra note 26, at 5. The Children’s Bureau, for instance, limited the reporting requirement in its model statute to doctors, based on “the view that abused children most frequently come to public attention when a caretaker seeks medical assistance for a child.” (Paulsen, supra note 26, at 3). Meanwhile, the American Humane Association recommended a slightly broader definition of mandatory reporter to include hospital personnel, a view mostly shared by the Council of State Governments. (Paulsen, supra note 26, at 4). The American Medical Association, by contrast, recommended including a broader array of medical personnel, not just physicians, and also “any school teacher or any social worker.”

[34] Paulsen, supra note 26, at 4.

[35] Pediatrics Chairman at CU Honored, The Denver Post, Jan. 18, 1973, at 53.

[36] Paulsen, supra note 26, at 1. Hawaii adopted its own law not long after.

[37] Id. at 6.

[38] Id. at 7. The eleven states were Alabama, Alaska, California, Maryland, Montana, Nevada, New Mexico, North Carolina, Ohio, West Virginia, and Wisconsin. The twelve states were Alabama, Alaska, Georgia, Kansas, Maryland, Montana, Nevada, New Mexico, North Carolina, Ohio, West Virginia, and Wisconsin.

[39] Id. at note 26. “Nebraska (“any person who has reason to believe that severe physical injury has been wilfully inflicted”), Tennessee (“any person having knowledge of or called upon to render aid to any child ... suffering from ... brutality, abuse or neglect”), Utah (“any person having reasonable cause to believe that a minor has had physical injury as a result of ... physical abuse or neglect”). In Alabama, the reporting duty is laid upon “any person called upon to render aid or medical assistance,” a phrase which imposes a limited duty on non-professionals.”

[40] See Meriwether, supra note 26, at 142, and Paulsen, supra note 26, at 7 (California adopted its law in 1963, made an amendment in 1966, and then adopted 14 subsequent amendments within the next 20 years).

[41] Meriwether, supra note 26, at 146, citing “Education Commission of the States, Report No. 106. Trends in Child Protection Laws—1977,” at 18-21 app. (1978).

[42] See generally Meriwether, supra note 26.

[43] The Child Abuse Prevention and Treatment Act, 93 P.L. 247, 88 Stat. 4 (1974).

[44] See generally Paulsen, supra note 26 at 2–3 and accompanying text; see also infra note 56.

[45] See infra note 56.

[46] Paulsen, supra note 26, at 37–38.

[47] Id.

[48] John E.B. Myers, A Short History of Child Protection in America, 42 Fam. L. Q. 452, 456 (2008–2009).

[49] U.S. Dep’t of Health & Hum. Serv., Child. Bureau, Child Maltreatment 2016 ii (2018) [hereinafter Child Maltreatment 2016].

[50] Id. at ix–x.

[51] Paulsen, supra note 26, at 37–38.

[52] Meriwether, supra note 26, at 141.

[53] Id.

[54] Pamela O. Paisley, Prevention of Child Abuse and Neglect: A Legislative Response, The School Counselor, Vol. 34, No. 3, 226–28 (Jan. 1987).

[55] Contemporary Studies Project, Iowa Professionals and the Child Abuse Reporting Statute—A Case of Success, 65 Iowa L. Rev. 1273, 1310 (1980).

[56] A.J. Sedlak et al., Fourth National Incidence Study of Child Abuse and Neglect (NIS–4): Report to Congress, Executive Summary 5 (2010) [hereinafter NIS–4].

[57] Child Maltreatment 2016, supra note 49, at x.

[58] NIS–4, supra note 56, at 5.

[59] Id.

[60] Id. at 7.

[61] Id. at 5–6.

[62] Id. at 21.

[63] Id. at 19.

[64] Id. at 21.

[65] Id. at 22.

[66] Ben Mathews, Mandatory Reporting Laws and Identification of Child Abuse and Neglect: Consideration of Differential Maltreatment Types, and a Cross-Jurisdictional Analysis of Child Sexual Abuse Reports, Soc. Sci., 473 (Aug. 20, 2014).

[67] Id.

[68] Id. at 474.

[69] See supra notes 6–20 and accompanying text.

[70] See supra note 69.

[71] See supra note 12.

[72] Will Hobson, At Larry Nassar Sentencing Hearing, a Parade of Horror and Catharsis, Wash. Post, (Jan. 18, 2018), https://www.washingtonpost.com/sports/olympics/at-larry-nassar-sentencing-hearing-a-parade-of-horror-and-catharsis/2018/01/18/19bed832-fc55-11e7-8f66-2df0b94bb98a_story.html?utm_term=.d43b55b84237.

[73] Will Hobson, Larry Nassar Receives Final Criminal Sentence, a 40- to 125-Year Term, Wash. Post, (Feb. 5, 2018), https://www.washingtonpost.com/sports/larry-nassar-receives-final-criminal-sentence-a-40--to-125-year-term/2018/02/05/19b535de-0a83-11e8-8890-372e2047c935_story.html?utm_term=.f98adb4560ff.

[74] Will Hobson, Former Head of USA Gymnastics Pleads the Fifth on Larry Nassar Questions from Congress, Wash. Post (June 5, 2018), https://www.washingtonpost.com/news/sports/wp/2018/06/05/former-head-of-usa-gymnastics-pleads-the-fifth-on-larry-nassar-questions-from-congress/?utm_term=.17c845d37264.

[75] Will Hobson & Susan Svrluga, Settlement with Larry Nassar Victims Will Have Impact on Michigan State, Wash. Post (May 16, 2018), https://www.washingtonpost.com/sports/settlement-with-larry-nassar-victims-will-have-impact-on-michigan-state/2018/05/16/1f6eb076-5935-11e8-b656-a5f8c2a9295d_story.html?utm_term=.13fe6abd6ec1.

[76] See supra note 18.

[77] Id.

[78] Following Larry Nassar Case, Congress Passes Bill Aiming to Protect Amateur Athletes from Abuse, USA Today (Jan. 29, 2018), https://www.usatoday.com/story/sports/2018/01/29/congress-bill-aiming-protect-amateur-athletes-abuse/1077273001/.

[79] Groppe, supra note 18.

[80] Marisa Kwiatkowski et al., A Blind Eye to Sex Abuse: How USA Gymnastics Failed to Report Cases, The Indianapolis Star (Aug. 4, 2016, updated Jan. 31, 2018), https://www.indystar.com/story/news/investigations/2016/08/04/usa-gymnastics-sex-abuse-protected-coaches/85829732/.

[81] Protecting Young Victims from Sexual Abuse Act of 2017: Hearing on S. 534 Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Jessica Howard).

[82] Id.

[83] Id.

[84] Protecting Young Victims from Sexual Abuse Act of 2017: Hearing on S. 534 Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Jamie Dantzscher).

[85] Protecting Young Victims from Sexual Abuse Act of 2017: Hearing on S. 534 Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Dominique Moceanu).

[86] Grassley Statement, supra note 10. For instance, USA Swimming recently banned dozens of coaches for abusing teenagers.

[87] Matt Carroll et al., Church Allowed Abuse by Priest for Years: Part 1 of 2, Boston Globe (Jan. 6, 2002), https://www.bostonglobe.com/news/special-reports/2002/01/06/church-allowed-abuse-priest-for-years/cSHfGkTIrAT25qKGvBuDNM/story.html.

[88] 40th Statewide Investigating Grand Jury REPORT 1 Interim—Redacted 1 (Aug. 2018), https://www.courthousenews.com/wp-content/uploads/2018/08/pa-abuse-report.pdf (last visited Mar. 17, 2019).

[89] Id.

[90] Laurie Goodstein, Catholic Bishops Promising to Fix Sex Abuse Problem Face Cover-Up Accusations, N.Y. Times (Oct. 19, 2018), https://www.nytimes.com/2018/10/19/us/catholic-church-sex-abuse-scandal.html.

[91] Campbell Robertson & Elizabeth Dias, Catholic Dioceses in Pennsylvania Face Federal Inquiry Into Sexual Abuse, N.Y. Times (Oct. 18, 2018), https://www.nytimes.com/2018/10/18/us/church-sex-abuse-investigation-pennsylvania.html.

[92] Richard R. Hammar, The Top 5 Reasons Churches Went to Court in 2017, Church Law & Tax Report (Aug. 1, 2018) https://www.churchlawandtax.com/web/2018/august/top-5-reasons-churches-went-to-court-2017.html (between 2012 and 2017, a sexual abuse allegation involving a minor ranked as the top reason Protestant churches and ministries went to court five times).

[93] Robert Downen, Lise Olsen, & John Tedesco, Abuse of Faith, Houston Chronicle (Feb. 10, 2019), https://www.houstonchronicle.com/news/investigations/article/Southern-Baptist-sexual-abuse-spreads-as-leaders-13588038.php. The investigation found “roughly 380 Southern Baptist church leaders and volunteers have faced allegations of sexual misconduct … includ(ing) those who were convicted, credibly accused and successfully sued, and those who confessed or resigned. … Some still work in Southern Baptist churches today.”

[94] Jason Felch & Kim Christensen, Boy Scout Files Reveal Repeat Child Abuse by Sexual Predators, L.A. Times (Aug. 5, 2012), http://www.latimes.com/local/la-me-boyscouts-20120805-m-story.html.

[95] Id.

[96] Jason Felch, Top Executives Did Not Report Suspected Scout Abuse Cases, Files Show, L.A. Times (Dec. 30, 2012), http://www.latimes.com/local/california/la-me-scouts-leaders-2-20121231-story.html.

[97] Jennifer Medina, University of Southern California to Pay $215 Million Over Sex Abuse Scandal, N.Y. Times (Oct. 18, 2018), https://www.nytimes.com/2018/10/19/us/usc-sex-abuse-settlement-george-tyndall.html.

[98] Full Text of Louis Freeh’s Remarks on Penn State (July 12, 2012), https://6abc.com/archive/8733637/ (last visited Mar. 17, 2019).

[99] Id.

[100] Id.

[101] John E.B. Myers, A Short History of Child Protection in America, 42 Fam. L. Q. 452, 453 (2008-2009).

[102] 42 U.S.C. § 5101 et seq; 42 U.S.C. § 5116 et seq; U.S. Dep’t of Health & Hum. Serv., Child. Bureau, About CAPTA: A legislative history (2017), https://www.childwelfare.gov/pubPDFs/about.pdf (last visited Mar. 31, 2019).

[103] U.S. Dep’t of Health & Hum. Serv., Child. Bureau, About CAPTA: A legislative history (2017), https://www.childwelfare.gov/pubPDFs/about.pdf (last visited Mar. 17, 2019).

[104] Id.

[105] Child Maltreatment 2016, supra note 52, at x.

[106] Myers, supra note 101, at 461.

[107] Id.

[108] Theodore J. Stein, The Child Abuse Prevention and Treatment Act, Soc. Serv. Rev., Vol. 58, No. 2, 302, 303 (June 1984) (emphasis added).

[109] Id. (emphasis added).

[110] Id. at 303–04.

[111] Id.

[112] 42 U.S.C.A. § 5106 (West 2018).

[113] Stein, supra note 108, at 305.

[114] 42 U.S.C.A. § 5115 (West 2010).

[115] 42 U.S.C.A. § 5116(b) (West 2010).

[116] David E. Gullatt & Cathy E. Stockton, Recognizing and Reporting Suspected Child Abuse, Am. Secondary Educ., Vol. 29, No. 1, 22 (Fall 2000).

[117] Stein, supra note 108, at 305.

[118] 34 U.S.C.A. § 20301 (West 2017).

[119] Id. See also 34 U.S.C.A. § 20302–20307 (West 2017) and 34 U.S.C.A. § 20331 (West 2017).

[120] 34 U.S.C.A. § 20341 (West 2018).

[121] Id.

[122] 34 U.S.C.A. § 20341(b)(1)–(8) (West 2018). Its list includes doctors and health care workers, psychologists and mental health care professionals, social workers, teachers, school officials, school administrators, child care workers, law enforcement personnel, foster parents, and commercial film and photo processors.

[123] 34 U.S.C.A. § 20341(h) (West 2018).

[124] 34 U.S.C.A. § 20334(a)(b) (West 2017).

[125] 34 U.S.C.A. § 20341(g) (West 2018).

[126] 18 U.S.C.A. § 2258 (West 2018).

[127] S. 534 (or P.L. 115-126, Feb. 14, 2018, 132 Stat 318) (2018).

[128] Grassley Statement, supra note 10.

[129] Following Larry Nassar Case, Congress Passes Bill Aiming to Protect Amateur Athletes from Abuse, USA Today (Jan. 29, 2018), https://www.usatoday.com/story/sports/2018/01/29/congress-bill-aiming-protect-amateur-athletes-abuse/1077273001/.

[130] Grassley Statement, supra note 10.

[131] Id.

[132] 34 U.S.C.A. § 20341(2) (West 2018); 34 U.S.C.A. § 20341(9) (West 2018).

[133] S. 534 (2018); 34 U.S.C.A. § 20341(12) (West 2018).

[134] 18 U.S.C.A. § 2258 (West 2018).

[135] 164 Cong. Rec. H641 (daily ed. Jan. 29, 2018) (statement of Rep. Sheila Jackson Lee (D-TX) indicating the funding authorization ($1 million per year for five years) contained in the bill unanimously passed by the Senate was stripped out of the version considered—and ultimately passed—by the House and signed into law).

[136] 36 U.S.C.A. § 220541(a) (West 2018).

[137] 36 U.S.C.A. § 220542(a)(1) (West 2018); 36 U.S.C.A. § 220542(2)(A)(B)(E) (West 2018).

[138] See supra note 35.

[139] Paulsen, supra note 26, at 6 and 15–16.

[140] In 1969, as the Colorado legislature contemplated changes, the state law still only named physicians as mandatory reporters (see generally State Child Service Workers Conclude Training Workshop, The Denver Post,  Jan. 23, 1969, p. 18; Zoe Von Ende, Are You Abusing Your Child?, The Sunday Denver Post, Feb. 2, 1969, at 178). More changes came in 1975 (see House OKs Children’s Team Bill, The Denver Post, May 28, 1975, at 86), and by 1983, the list of mandated reporters had been expanded to include teachers, social workers, and psychologists (see Sharon Sherman, Child-Abuse Reporting Law Backed, The Denver Post, Mar. 30, 1983, at 18).

[141] Colo. Rev. Stat. Ann. § 19-1-103 (West 2018).

[142] Meriwether, supra note 26, at 145–46.

[143] Id. at 143–44.

[144] Id. at 147.

[145] Colo. Rev. Stat. Ann. § 19-3-304 (West 2017).

[146] Colo. Rev. Stat. § 19-3-304(2) (West 2017).

[147] Colo. Rev. Stat. § 19-3-304(1)(a) (West 2017).

[148] 50-State Survey, supra note 4 (thirty-two states do not statutorily define “immediately” for an initial report, including Arizona, Florida, Illinois, Michigan, New Mexico, Oklahoma, Pennsylvania, Utah, and Wyoming. However, other states do. Connecticut defines “immediately” to mean “as soon as possible but not later than 12 hours.” Nine states, including Georgia, Idaho, and Iowa, define “immediately” to mean within 24 hours. California says within 36 hours, while Texas says within 48 hours, and North Carolina says within 48 hours, depending on the profession. Kansas uses the term “promptly” and defines it as within 24 hours. Montana says “promptly” but provides no definition. Nebraska and South Carolina give no language regarding timing). 

[149] Colo. Rev. Stat. § 19-3-304(1)(a) (West 2017).

[150] Colo. Rev. Stat. § 19-1-103(108) (West 2018).

[151] Colo. Rev. Stat. § 19-3-304(a) (West 2017); supra note 139.

[152] Colo. Rev. Stat. § 19-3-304(a) (West 2017).

[153] Colo. Rev. Stat. § 19-3-304(b) (West 2017).

[154] 50-State Survey, supra note 4 (the other states are Arkansas, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island).

[155] Colo. Rev. Stat. § 19-3-307(1) (West 2017).

[156] Colorado Child Abuse and Neglect Hotline Reporting System, Colo. Dep’t of Hum. Serv., https://www.colorado.gov/pacific/cdhs/colorado-child-abuse-and-neglect-hotline-reporting-system (last visited Mar. 31, 2019). The toll-free, statewide hotline (1-844-CO-4-KIDS) became operational Jan. 1, 2015. Officials a few months later expressed concern that members of the general public, as permissive reporters, do not know they can make reports (Jennifer Brown, Child-Abuse Line is Live, The Denver Post, Apr. 7, 2015, at 1A.

[157] Colo. Rev. Stat. § 19-3-304(3) (West 2017).

[158] Colo. Rev. Stat. § 19-3-309 (West 1989).

[159] Colo. Rev. Stat. § 19-3-313.5 (West 2018).

[160] Colo. Rev. Stat. § 19-3-313.5(2) (West 2018).

[161] See generally Jennifer Brown, et al., Searching for Solutions, The Denver Post, Nov. 18, 2012, at 1A; Jordan Steffen, Audit Blasts Child Welfare, The Denver Post, Nov. 13, 2014, at 1A.

[162] See Jordan Steffen, Few are Punished for Failure to Report, The Denver Post, July 5, 2014, at 1A; Christopher M. Osher, Colorado Public Schools are Paying Millions to Settle Lawsuits When Educators Fail to Report Sex Abuse of Students, But Those Educators Avoid Legal Consequences, The Denver Post (June 26, 2018), https://www.denverpost.com/2018/06/15/how-colorado-educators-fail-to-report-sex-abuse-of-students-and-get-away-with-it/.

[163] Steffen, supra note 162.

[164] Osher, supra note 162.

[165] Senate Bill 19-049. “Statute of Limitation Failure Report Child Abuse,” https://leg.colorado.gov/bills/sb19-049. The bill was passed and signed into law by Gov. Polis on Mar. 28, 2019.

[166] Id.

[167] Colo. Rev. Stat. § 19-3-304 (West 2018).

[168] HB 19-1133 (https://leg.colorado.gov/bills/hb19-1133 --last visited Jun. 4, 2019). The bill noted only six professionals in the state were board-certified specialists in child abuse pediatrics.

[169] HB 19-1133 Fiscal Note ((https://leg.colorado.gov/bills/hb19-1133 --last visited Jun. 4, 2019).

[170] HB 19-1133 (https://leg.colorado.gov/bills/hb19-1133 --last visited Jun. 4, 2019).

[171] Watso v. Colo. Dep’t of Soc. Serv., 841 P.2d 299 (1992).

[172] In L.J. v. Carricato, 413 P.3d 1280 (2018), the court held another part of Colorado’s criminal code did not strip district attorneys of their authority to prosecute mandatory reporters who failed their duty. In People v. Phillips, 315 P.3d 136 (2012), the court held a declarant making an out-of-court statement to a mandatory reporter did not make the statement testimonial (and thus raise a conflict with the Constitution’s Confrontation Clause). In People v. Jimenez, 217 P.3d 841 (2008), the court upheld a lower court’s finding that a mental health professional’s report was proper because it fell within the scope of the state’s mandatory reporter law. In Credit Serv. Co. v. Dauwe, 134 P.3d 444 (2005), a father failed to show a psychiatrist’s report of suspected abuse against him was not made in good faith.

[173] Fred Gillies, Motion Challenging Child-Abuse Report Law Rejected, The Denver Post, Dec. 24, 1980, at 3.

[174] Id.

[175] Pierce v. Delta Cty. Dep’t of Soc. Serv., 119 F. Supp. 2d 1139 (2000).

[176] Mich. Comp. Laws Ann. § 722.623 (West 2016).

[177] Id.

[178] Mich. Comp. Laws Ann. §§ 722.623(1)(a) – 722.623(1)(b) (West 2016).

[179] Mich. Comp. Laws Ann. § 722.623(1)(a) (West 2016).

[180] Id.

[181] Mich. Comp. Laws Ann. § 722.622(1)(a) (West 2018).

[182] MI Bridges, State of Mich., https://newmibridges.michigan.gov/s/isd-partnershiplanding?language=en_US (last visited May 27, 2019).

[183] Mandated Reporters, Mich. Dep’t of Health & Hum. Serv., https://www.michigan.gov/mdhhs/0,5885,7-339-73971_7119_50648_44443---,00.html (last visited Mar. 31, 2019); Submit Catholic Church Clergy Abuse Information, Mich. Dep’t of Att’y. Gen., https://www.michigan.gov/ag/0,4534,7-359--477753--,00.html (last visited Mar. 31, 2019).

[184] Mich. Comp. Laws Ann. § 722.624 (West 1985).

[185] Mich. Comp. Laws Ann. § 722.625 (West 2005).

[186] Id.

[187] Mich. Comp. Laws Ann. § 722.633(2) (West 2002).

[188] Mich. Comp. Laws Serv. § 722.633(1) (West 2002).

[189] Mich. Comp. Laws Ann. § 722.629 (West 1989).

[190] Jonathan Oosting, Michigan Plan Requires Coaches to Report Child Abuse, The Detroit News (June 6, 2018), https://www.detroitnews.com/story/news/local/michigan/2018/06/06/michigan-coaches-mandatory-abuse-reporting-larry-nassar/676424002/.

[191] Id.

[192] Id.

[193] Child Maltreatment 2016, supra note 49, at 215.

[194] Id.

[195] 23 Pa. Stat. and Cons. Stat. Ann. § 6311(a)(1)-(16) (West 2015).

[196] 23 Pa. Stat. and Cons. Stat. Ann. § 6313(a)(1) (West 2014); Pa. Child Welfare Info. Solution, Pa. Dep’t of Hum. Serv., https://www.compass.state.pa.us/cwis/public/home (last visited Mar. 31, 2019).

[197] 23 Pa. Stat. and Cons. Stat. Ann. § 6313(a)(1)(2) (West 2014).

[198] 23 Pa. Stat. and Cons. Stat. Ann. § 6312 (West 2014).

[199] 23 Pa. Stat. and Cons. Stat. Ann. § 6318(a)(c) (West 2014).

[200] 23 Pa. Stat. and Cons. Stat. Ann. § 6319 (West 2014). See also 50-State Survey, supra note 4. The vast majority of states designate violations as misdemeanors with small fines, short jail sentences, or both. A felony designation arises in certain instances in Arizona, Connecticut, Florida, Illinois, and Texas. Delaware’s law sets a fine of not more than $10,000 for a first violation and not more than $50,000 for a subsequent violation. Louisiana says a violator whose failure to report results in death or serious harm to a child faces a fine of “not more than $3,000, imprison(ment) with or without hard labor for not more than 3 years or both” and an adult who fails to report child sexual abuse he or she witnesses shall be fined “not more than $10,000, imprisoned without hard labor for not more than 5 years or both.” Maryland fines up to $50,000, depending on the profession.

[201] 23 Pa. Stat. and Cons. Stat. Ann. § 6319(a)(1)(2) (West 2014).

[202] 101 Pa. Cons. Stat. § 15.66(5) (1998).

[203] 23 Pa. Stat. and Cons. Stat. Ann. § 6319(c) (West 2014).

[204] 101 Pa. Cons. Stat. § 15.66(4) (1998).

[205] 23 Pa. Stat. and Cons. Stat. Ann. § 6319(a)(3) (West 2014).

[206] 101 Pa. Cons. Stat. § 15.66(7) (1998).

[207] 23 Pa. Stat. and Cons. Stat. Ann. § 6383(a.2)(1)(2) (West 2015).

[208] Pa. Dep’t of the Auditor Gen., Auditor General DePasquale Says ‘State of the Child’ Special Report Shows Broken Child-Welfare System Puts Children At Risk (Sept. 14, 2017), https://www.paauditor.gov/press-releases/auditor-general-depasquale-says-state-of-the-child-special-report-shows-broken-child-welfare-system-broken-puts-children-at-risk (last visited Mar. 31, 2019). The report showed one 13-county study experienced a 36-percent jump in total reports in the two years since the law changed, and already-overburdened caseworkers experienced an unsustainable four- to six-fold increase in caseloads.

[209] Paulsen, supra note 26, at 49.

[210] Id.

[211] Id.

[212] Id.

[213] Stein, supra note 108, at 305.

[214] See generally Kelly, supra note 11.

[215] See generally NIS–4, supra note 56; Stein, supra note 108, at 307; Meriwether, supra note 26, at 154; Douglas J. Besharov, Child Abuse and Neglect Reporting and Investigation: Policy Guidelines for Decision-Making, Fam. L. Q., 1, 10 (Spring 1988); Jeannette C. Nunnelley and Teesue Fields, Anger, Dismay, Guilt, Anxiety—The Realities and Roles in Reporting Child Abuse, Young Children, Vol. 54, No. 5, 74–75 (September 1999).

[216] See supra notes 160 and 188.

[217] See generally NIS–4; Stein, supra note 108, at 307; Meriwether, supra note 26, at 154; Besharov, supra note 214, at 10.

[218] Besharov, supra note 214, at 13.

[219] See Stein, supra note 108, at 307; Meriwether, supra note 26, at 151; Besharov, supra note 214, at 2.

[220] Meriwether, supra note 26, at 164–65.

[221] Kelly, supra note 11, at 217.

[222] Robert Weisberg & Michael Wald, Confidentiality Laws and State Efforts to Protect Abused or Neglected Children: The Need for Statutory Reform, 18 Fam. L.Q. 143, 198 (1984).

[223] See generally Stein, supra note 108, at 310; Besharov, supra note 214, at 10; Mary B. Larner et al., Protecting Children from Abuse and Neglect: Analysis and Recommendations, The Future of Children, Vol. 8, No. 1, 4, 10–11 (Spring 1998).

[224] Meriwether, supra note 26, at 164–65.

[225] Larner, supra note 222, at 10–11.

[226] Stein, supra note 108, at 310.

[227] Id.

[228] Meriwether, supra note 26, at 151.

[229] Watso v. Colorado Dep’t of Social Services, 841 P.2d 299 (1992).

[230] People v. Cavaiani, 172 Mich.App. 706 (1988).

[231] State v. Brown, 140 S.W.3d 51, 54 (2004).

[232] Rep. Justin Amash (@justinamash), Facebook (Jan. 29, 2018, 5:00 PM),  https://www.facebook.com/justinamash/posts/1671086356264097 (last visited Mar. 31, 2019).

[233] Id.

[234] Id. Whether the presence of federal and state mandatory reporting laws violates the Double Jeopardy Clause remains to be seen. But a pending case before the U.S. Supreme Court on a separate matter will at least shed some light soon. In June of 2018, the Court agreed to hear Gamble v. United States, in which the petitioner, a convicted felon at the time of arrest, was prosecuted and convicted for possessing a gun under concurrent state and federal laws. The petitioner argues the prosecutions under similar state and federal laws constitutes a Double Jeopardy Clause violation. Oral arguments occurred on Dec. 6, 2018. The outcome was still pending as of this publication. At least one observer anticipated a majority of the Court will hold the concurrent federal and state laws do not violate the Double Jeopardy Clause (Amy Howe, “Argument Analysis: Majority Appears Ready to Uphold “Separate Sovereigns” Doctrine,” (Dec. 6, 2018, 2:20 PM) (https://www.scotusblog.com/2018/12/argument-analysis-majority-appears-ready-to-uphold-separate-sovereigns-doctrine/)).

[235] See supra note 234.

[236] See supra note 133.

[237] See supra notes 148, 181, and 196.

[238] See supra notes 145, 178, and 183.

[239] Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

[240] See supra notes 160 and 188.

[241] See supra note 135.

[242] See supra notes 123–124.

[243] Paulsen, supra note 26, at 49.

[244] See supra note 34.

[245] Kelly, supra note 11, at 217.

[246] See supra note 207. Pennsylvania’s auditor general also planned to study responses in Florida after its “all adult” mandatory reporter law led to a surge in reports after it took effect in 2012. 

[247] See supra notes 48, 49, 52, 53, 56, 57, 61, and 62.

[248] See supra notes 33, 34, 37, and 139.

[249] See supra notes 48, 49, 52, 53, 56, 57, 61, and 64.

[250] See supra note 132.

[251] See supra notes 146 and 194.

[252] See supra note 178.

[253] See supra notes 122, 132, 146, 178, and 194.

[254] See supra notes 146, 178, and 194.

[255] See supra notes 15, 80, 83, 87, 89–100.

[256] See supra note 126.

[257] See supra notes 199–205.

[258] See supra notes 152 and 186.

[259] See supra notes 162–164.

[260] See supra note 126.

[261] See supra notes 152, 186, and 199–205.

[262] See supra notes 184 and 197.

[263] See supra notes 121 and 155–156. Although Colorado and the federal government offer websites containing information about the mandatory reporter laws, there is no online training and no online reporting mechanism.

[264] See supra note 195. The Pennsylvania website (https://www.compass.state.pa.us/cwis/public/home) contains information and training about the abuse-reporting law alongside an online submission system (last visited Mar. 31, 2019).

[265] See supra note 222.

[266] Supra note 176.

[267] See supra note 211.