Mandated Reporting and the Immunity Myth

The most recent APSAC Advisor has an excellent article about an important issue — the myth that mandated reporters are immune from liability for reporting their suspicions of child abuse. Every training I have ever attended has reassured mandated reporters that they will face no repercussions from making a report. That information is flat-out wrong — the system does not have the protections it needs for mandated reporters.

Most mandated reporter statutes, including Georgia’s law, protect only “good faith” reports. Thus, a disgruntled parent only needs to find a lawyer willing to allege that the report was not in good faith. Then lawsuits ensue, such as this one or these. The reporter likely will win in the end, but the process of defending a lawsuit will be grueling. Furthermore, many liability insurance policies do not cover these lawsuits, so a defense can be financially debilitating.

The APSAC authors identify two other areas of potential liability — complaints to professional licensing boards and retaliation from employers. It is difficult to provide more protection from recalcitrant employers because of the intricate network of laws already governing employment questions. However, mandated reporting statutes that shift responsibility to the employers likely would help. Georgia’s statute, for example, provides that employees of a child-serving institution can fulfill their mandated reporter obligations by reporting to a designated administrator. In that case, the administrator, and only the administrator, faces criminal penalties for failing to forward a valid report. The employee not only faces no criminal penalties, but cannot be blamed for going outside the chain of command to the state authorities.

Moreover, Georgia’s statue requires the administrator to forward the report verbatim. The administrator can add information (such as other concerns that by themselves do not raise suspicions of abuse), but cannot remove anything from the employee’s report. Thus, inserting the administrator in the chain of responsibility does not deprive the state authorities of any information.

People opposed to the “chain of command” reporting will point to instances such as the Jerry Sandusky case at the University of Pennsylvania. However, there is no evidence that taking employers out of the responsibility chain results in more reports or protects more children. Furthermore, it is hard to see how a statute that requires employees to go around their supervisors, but provides no job protection when they do, will encourage more reports.

Providing protections against lawsuits or licensing board complaints actually require relatively simple additions to existing law. The dilemma for legislatures is how to balance protections for reports of possible child abuse against the potential for using those reports as weapons to settle a private score. Fortunately, we have decades of law in another area wrestling with that exact conundrum.

United States law always has valued vigorous public debate, beginning with the protections of the First Amendment to the Constitution. Yet, we also value the protections against defamation during those public statements. The resulting balance that has held firm for many years has two components — first, in some situations, a defamation claim requires not just a lack of “good faith,” but affirmative proof of malice. Second, states have adopted varying degrees of protection in their anti-SLAPP laws.

Defamation law and anti-SLAPP provisions can be complex, especially in our federal system where each state has its own variation on the theme. But, in general, anti-SLAPP laws are designed to prevent frivolous lawsuits that, because of the onerous burden of litigation, effectively squelch public debates. Some states have better protection than others, but most states have some version of such a law.

Georgia, for example, requires that, for legal actions “in connection with an issue of public interest or concern,” a court can dismiss the action unless the plaintiff proves that “there is a probability” that he or she will prevail on the claim. Thus, a defendant does not have to go through an entire proceeding to be vindicated, but can ask the court for an early review of the probability of recovery.

Furthermore, Georgia law requires that when a public figure is involved, and thus the malice standard applies, then the court can limit the initial discovery solely to the question of malice. Finally, if the court dismisses the action, then the defendant can recover his or her attorneys’ fees and litigation expenses.

These provisions could provide powerful protections if applied to mandated reporters. Simply requiring proof of malice rather than the vague “good cause” would provide more protection than mandated reporters currently have. Including mandated reporters in the anti-SLAPP protections against lawsuits and extending those protections to licensing complaints would provide a powerful shield, and reassurance, for mandated reporters.

Some states would have to do more work than others. Georgia, for example, would need to add a malice standard and add anti-SLAPP protections to licensing board complaints. Other states would have to start with strengthening their anti-SLAPP protections. Pennsylvania, for example, requires everyone to be a mandated reporter, but has one of the weakest anti-SLAPP statutes in the country. I cannot follow the logic of enacting a stringent law and then giving people absolutely no protection for following the law.

If we want to protect children, and believe that the science eventually will support our leap of faith that mandated reporter laws will protect them, then making the laws more and more burdensome is not enough. We must protect people who do what the law and child protection community tell them to do. Providing those protections would not require an entirely new legislative scheme. We can simply extend to mandated reporters several protections already in the current law.