Presentation on theme: "Mandated Reporting Part 1. Mandated Reports Everyone in SC is allowed to report, but mandatory reporters can be charged if they fail to report People."— Presentation transcript:
Mandated Reports Everyone in SC is allowed to report, but mandatory reporters can be charged if they fail to report People who are not mandatory reporters cannot be charged
Who Are Mandatory Reporters in SC? Doctors Nurses Dentists Optometrists EMT’s Mental Health Allied Health Counselors Principals Assistant Principals Computer Technicians Clergy Teachers Judges Police/Law Enforcement Film Processors Substance Abuse Treatment Staff Childcare Workers Social Workers/Public Assistance Workers Undertakers Funeral Directors (and staff) Coroner (and staff) Medical Examiner (and staff) Juvenile Justice Workers (2010) Foster Parents (2010) Guardian ad Litems (2010) School Truancy/Attendance Officers (2010)
When to Report Reason to believe: – child’s physical or mental health or welfare – has been or may be adversely affected – by abuse or neglect And this information is received in your professional capacity
Privileged Information Only 2 groups can claim privileged communication 1.Attorney – Client 2.Clergy – Penitent
What is Reason to Believe? Information must be such that a reasonable person would rely upon it, including hearsay Does not require the reporter to have conclusive proof Does not require proof beyond a reasonable doubt
Who is a Child? For abuse and neglect a person is considered a child until their 18 th birthday DSS should be contacted if the perpetrator is a parent, guardian or other person responsible for the child’s welfare Law Enforcement should be contacted if the perpetrator is any other individual
Other Person Responsible for Child’s Welfare Foster parent An operator, employee, or caregiver, of a public or private residential home, institution, agency, or childcare facility An adult who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child
Other Person Responsible for a Child’s Welfare Does Not Include: A person whose only role is as a caregiver and whose contact is only incidental with a child, e.g., as a babysitter or a person who has only incidental contact but may not be a caretaker, has not assumed the role or responsibility of a parent or guardian
Making A Report Telephone or in person Local DSS office or Local Law Enforcement Office – Child’s name – Age and date of birth – Address – Present location – Names and ages of siblings – Parent’s names and addresses – Reasons for concerns
Making A Report As soon as possible Do not assume the role of DSS investigator/ or law enforcement Do not wait for proof Providing name is preferred Follow organizational procedures You are individually required to report Law reads must make a report
Confidentiality DSS and law enforcement must keep the identity of the reporter confidential May share the name of the reporter with each other to further their investigations Reporter may also be required to testify
Immunity from Liability S.C. Code Ann. § 63-7-390 A person required or permitted to report who participates in an investigation or judicial proceedings resulting from the report, acting in good faith, is immune from civil and criminal liability
Failure to Report S.C. Code Ann. § 63-7-410 A person who is required to report child abuse and neglect and who fails to do so is guilty of a misdemeanor and, upon conviction, must be fined not more than $500 or imprisoned not more than six months or both
Title IX A recipient of Federal funds is required to adopt and publish grievance procedures for prompt resolution of complaints of sexual harassment. U.S.C. has such a policy from informal mediation to a formal investigation, hearing and an appeal in more egregious cases.
If You Experience Sexual Harassment Immediately report it and DO NOT IGNORE it Let the individual know you object to the behavior Keep a record of each instance with dates, times, places, witnesses, etc. A faculty/staff member receiving such a report should consult with Office of Equal Opportunity Programs.
Concerns of Retaliation Title IX requires the school take steps to not only prevent further harassment but to prevent retaliation against the reporting student. U.S.C. has a policy stating that any retaliation against the person making the complaint, any witnesses to the complaint or the filing of the complaint is strictly forbidden. If you suffer retaliation, report this matter to the Office of Equal Opportunity Programs.
Other Issues to Address in Policy Policy must allow for a confidentiality standard in the investigation for the student filing the complaint Administrators should explain retaliation policy to complaining student and that a request for confidentiality may limit the school’s ability to respond Regardless, school must take reasonable steps to prevent harassment of other students
Behaviors Considered Sexual Harassment Unwelcome sexual advances Requests for sexual favors Language, graphic material, or physical conduct commonly understood to be of a sexual nature Demeaning sexist remarks Other verbal or physical conduct of a sexual nature
Those Behaviors Are Especially Offensive When: It is implied or clearly stated that submission to or rejection of the behavior will affect or is a term or condition of, the individual’s employment or educational status, or They create a coercive, hostile or intimidating atmosphere, or interfere with an individual’s academic or work performance.
U.S.C.’s Policy in Accordance with Title IX You can find our policy in the U.S.C. Policies and Procedures manual, EOP 1.02. A copy of this policy can also be obtained by calling the Office of Equal Opportunity Programs http://www.sc.edu/policies/eop102.html
Reporting Sexual Assaults The Sexual Assault and Violence Intervention & Prevention (SAVIP) is located on the 1 st floor of the Thomson Student Health Center (803)777-8248 § What is a sexual assault? Sexual battery in S.C. is defined in S.C. Code Section § 16-3-651 also U.S.C. Definition: – Non-consensual touching of intimate parts; penetration and/or force – Forcing an unwilling person to touch another’s intimate parts; – Can also be penetration while victim is incapacitated
If Sexual Assault Reported, What Next: Student Health Services has a protocol in place for the sexual assault survivor. Immediate staff response: Victim should be escorted to Women’s care by a nurse from the nurse’s station IF report is b/w Mon – Fri; SAVIP staff should always be notified There is an on-call schedule for non-regular hours responses
SAVIP – If assault happened w/in 120 hours Extremely important to empathize with victim Victim should not be left alone Believe the victim/survivor Let the victim/survivor be in control of the situation and he or she should make the decision whether or not to pursue reports to police, going through with the rape protocol exam, etc. More than 72 hours passed, typically no DNA
Protocol Response Call SAVIP (803) 777-8248 during regular hours Any other time use the on-call roster posted in both the GMC or WCC to contact advocate The SAVIP advocate is the one who will: – Explain the options of reporting to law enforcement – Encourage the victim to go to the hospital – Offer to stay with the victim – Encourage victim to seek counseling – File an advocate report with SAVIP
Your Responsibility As A USC Official If you have knowledge about an assault you are required to file an anonymous report with the Director of Sexual Assault & Violence Intervention & Prevention in addition to supporting the victim and referring that person to campus resources.
Jeane Cleary Act Federal act that requires an educational institution receiving federal funds to disclose crime statistics for the campus Even anonymous reports of sexual assault are counted Campus includes: – Fraternity and Sorority Life housing – Remote classrooms – Unobstructed public areas adjacent to or running through the campus
Children on a College Campus? Academic Programs Student Affairs/Recreation Health Services Admissions Human Resources Special Events/Advancement Conference Services Institutional Counsel/Office of Legal Services Gallagher Higher Education Practice, 2012
Academic Programs Music lessons Prodigy Students Under 18 freshmen High school/Bridge programs Internships Summer academic enrichment for youth Research Subjects Gallagher Higher Education Practice, 2012
Student Affairs/Recreation Pools Sporting Fields and Tracks Summer Camps Under-Aged recruits Local community service projects organized by students – Fraternity and Sorority events Gallagher Higher Education Practice, 2012
Health Services Health Care recipients – Summer camp attendees receiving medical care – Speech and hearing screenings Counseling Services Gallagher Higher Education Practice, 2012
Admissions/Human Resources Prospective Students Job shadowing programs “Bring your child to work” day “Bring your family” picnics/parties Community building events Gallagher Higher Education Practice, 2012
Special Events/Advancement Trick-or-treating Homecoming Graduation Class reunions Younger siblings staying in residence halls for visits School children visit campus for field trips Rental of facilities for conferences and sports camps Gallagher Higher Education Practice, 2012
Types of Child Abuse and Neglect Physical or mental injury Excessive corporal punishment Sexual offenses Neglect (Failure to supply food, clothing, shelter, supervision, education, medical care) Abandonment Encouraging delinquency Substantial risk of abuse or neglect
Sexual Abuse Commits or allows to be committed against the child a sexual offense defined by the laws of South Carolina Engages in acts or omissions that present a substantial risk of sexual offense as defined in the laws of South Carolina
Sexual Battery Sexual Intercourse Cunnilingus Fellatio Anal Intercourse Any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body Exception: medical treatment or diagnostic purposes.
No Physical Evidence in Most Cases As many as 85-90% of children who give a history of sexual abuse have a NORMAL or nonspecific physical exam. WHY?
Minimal facts interview Interview may be the most important aspect of investigation This type of interview can be conducted by any mandated reporter or first responder Basic who, what, and where NO DETAILS!!
Reasons for a Minimal Facts Interview Frequently, mandated reporters and first responders are not trained in forensic interviews The location/situation is not suitable for a trained interviewer to conduct a full forensic interview Interviews are the main element of the investigation that is attacked by defense attorneys (1 wrong question can taint the case) The child’s statement is often the only evidence
Jessie’s Law § 17-23-175 S.C. Code § 17-23-175 Provides for an investigative interview of a child to be admitted into evidence and is considered an exception to the hearsay rule. Passed in 2006 in response to need for child victims to have a stronger voice in the courtroom. Typically, no physical evidence of abuse, no video, no medical findings…only the word of a child.
Provisions Of Child Hearsay Law Applies to children under 12 For sex offender registry offenses only Statement made in response to investigative interview Video and audio recording preferred Child must still testify at trial
S.C. CODE Sections §16-3-655 et.al. Criminal Sexual Conduct w/ Minor First Degree Criminal Sexual Conduct w/ Minor Second Degree Criminal Sexual Conduct w/Minor Third Degree All of the above offenses require lifetime Sex Offender Registry, DNA database, and Central Registry of Abuse with DSS
S.C. Age of Consent In S.C. you are able to consent to sexual activity at the age of 16 § There is a “Romeo” clause which is detailed in S.C. Code Section § 16-3-655(C) – If a person is 18 years old or less and engages in consensual sexual activity with a minor 14 years of age or more, then there can be no prosecution of this activity under the law.
S.C. Code Sections Involving Immoral Sexual Activity w/Minors § First Degree Sexual Exploitation of a Minor § 16-15-395 § Second Degree Sexual Exploitation of a Minor § 16-15-405 § Third Degree Sexual Exploitation of a Minor § 16-15-410 Remember a minor is anyone under the age of 18 Focus of these laws is to protect children from being used as sexual objects by adults in recordings, film, pictures, any visual image showing sexual activity of a minor or intending to incite sexual gratification
What is Sexual Activity? § S.C. Code § 16-15-375 Sexual intercourse, masturbation (even simulated); touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female; Inserting any object into the genital openings
What is Sexually Explicit Nudity? § S.C. Code § 16-15-375 (a) uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or (b) covered human male genitals in a discernibly turgid state.
WHY DOES THIS MATTER? Criminal prosecution Collateral consequences: sex offender registry for life; active electronic monitoring; residence restriction; internet use restriction
Sexual Exploitation Third Degree § 16-15-410 Under S.C. law you are guilty for just possessing the photo…even if you were not the one who took it. So, a 17 year old student sends you a picture of her exposed breasts and she is wearing nothing else but a low cut pair of panties. You keep the picture and never distribute it. Violates S.C. law. You are now a felon and registered sex offender for life.
Some Legal Issues Do current child exploitation statutes adequately address youth’s use of social media? Do current state disturbing schools and bullying statutes adequately address youth’s use of social media?
Why Is This More And More Relevant Today? Cyber Bullying – Rutgers Student Suicide Sexting – Sending sexually suggestive photos and/or messages by cellular phone There are no laws in S.C. specifically penalizing the above actions What have law enforcement and prosecutors had to do?
Use The Laws Available To Them: Federal and SC child exploitation (pornography) statutes prohibit specified visual depictions of persons under 18 S.C. Second Degree Child Exploitation: Records, photographs, films, develops, duplicates, or creates digital electronic file material that contains a visual representation of a minor engaged in sexual activity Distributes, transports, exhibits, receives, sells, purchases, exchanges, solicits material.... Felony carries 2-10 years, Requires lifetime SOR, DNA database
Other Options in S.C. Law § SC Code § 16-17-490 (Contributing to the Delinquency of a minor) (0-3 years, SOR discretionary) § SC Code § 16-15-250 (Communicating obscene messages to other persons without consent) (0-3 years) § SC Code § 16-15-325. Participation in preparation of obscene material prohibited (0-1 year & $1000.00) § SC Code § 16-17-420 Disturbing Schools Prohibits any person from willfully or unnecessarily: Interfering with or disturbing in any way or in any place students or teachers of any school or college Acting in an obnoxious manner on any school or college in SC
What Is Illegal Under Current Laws? Taking a sexually explicit picture of a person under the age of 18. What is sexually explicit? “the showing of (a) uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or (b) covered human male genitals in a discernibly turgid state”
S.C. Is Considering a Sexting Statute The General Assembly is working on a “sexting” statute. Follow S.C. Legislature on-line: Bill H 3130 But, this Bill will not address it for students over 18 What is commonly understood as “sexting” is arguably addressed by federal and SC statutes and application of those laws to youth using social media raises issues of fairness and justice in this age of changing technology
IN CONCLUSION Be aware of the technology around you; Keep a keen eye on how some use it to harass or belittle a student and address it immediately Report it as a form of sexual harassment under Title IX There are extreme consequences if the signs are ignored Allow law enforcement to seize and review the pictures/evidence. You are not exempted from prosecution if you download or possess it
Children’s Law Center 1600 Hampton Street Suite 502 Columbia, SC 29208 (803) 777-1646 http://childlaw.sc.edu