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Retaliation Toward Child Abuse Reporters
By Nancy Guardia, MSW, LCSW, and Franne Sippel, EdD

Though all states provide some form of immunity from liability for persons who in good faith report suspected child abuse or neglect, there are serious gaps in immunity protection. Sixty percent of all reports of abuse or neglect are made by a child's teacher, therapist, doctor, or another childcare provider. These are the trusted adults in a child's life who are legally required to report child abuse. Yet many reporters experience retaliation for simply performing their mandate.

Retaliation may include releasing the reporter's identity to the press and/or alleged perpetrator, defamation, harassment, civil lawsuits, criminal charges, being fired or demoted, getting reported to one's state professional board, having one's professional license sanctioned or revoked, and even losing parental custody when the mandated reporter is also the parent.

Retaliation may occur for various reasons, including the following:
• to prevent lawsuits against government agencies;
• to discredit the mandated reporter in custody disputes and in court cases regarding child abuse/neglect;
• to invalidate a child's abuse allegations against the alleged abuser;
• to obtain monetary damages;
• to protect the image and brand of an institution or person; and
• because federal oversight of immunity protections is lacking.

The results of retaliation may be devastating; the reporter may be silenced, or those who observed the reporter might be punished for performing the duty to report. The upshot may be a decrease in child abuse reporting for fear of retaliation.

Since no entity in any state investigates instances of retaliation, mandatory reporters are forced to defend themselves and their reputations, often at a huge personal, financial, and emotional expense. Other than hiring a lawyer, there is nowhere for the mandatory reporter to report retaliation or access guidance, support, or resources. This leaves mandatory reporters who are retaliated against with the devastating realization that the laws meant to protect them are meaningless.

Further, child abuse within powerful institutions and organizations such as the Catholic church, Pennsylvania State University (Penn State), New England private schools, and U.S. gymnastics, occurs in a culture of silence, where the people in the best position to identify and respond to abuse do not have the ability to make direct reports to law enforcement. Instead, they must report suspected child abuse to their superiors.

Thus, Mike McQueary's 2001 report of witnessing Jerry Sandusky assaulting a child went up Penn State's chain of command, and Penn State administrators never reported the abuse to child protection services or law enforcement. (Penn State has since eliminated this rule and a mandatory reporter may report directly to a hotline.)

After McQueary testified in 2011, these same Penn State administrators fired him and ended his coaching career. The reputations of powerful people and institutions may supersede children's safety, and those who report the abuse can end up paying the price.

Why do these tragedies continue to occur?

Current laws meant to prevent child abuse, with concomitant legal protection for reporting child abuse, are not enforced at the state or federal level.

State laws vary greatly, and there are no uniform standards regarding who is considered a mandated reporter, and how, when, and to whom a report must be made. Even the basic definition of what constitutes child abuse or neglect is not consistent from state to state.

No government entity prevents an alleged perpetrator from suing a mandated reporter in civil court. All an adult needs is a lawyer willing to take the case.
No state provides a complaint process for investigating instances of retaliation against mandated reporters. No one in state government holds institutions and other employers accountable when they discipline or fire an employee for making a report to child protective services or law enforcement.

State licensing boards can sanction or revoke a professional's license based solely on a complaint from an alleged child abuser.

In addition, some states fail to protect the identity of mandated reporters from violent offenders.

Recognizing the loopholes in reporting immunity, the Secretary of Health and Human Services (HHS) made recommendations to Congress for strengthening immunity in child maltreatment cases.

The 2013 HHS report included results from a survey of 544 medical professionals about their experience cooperating or assisting with the filing of a mandatory report or providing consultation services to health care providers, investigators, child welfare agencies or law enforcement, and any resulting litigations.

The HHS study found that 11% of doctors who worked on child abuse/neglect cases were subsequently sued by the alleged abusers. The report did not include a statistical analysis of nonmedical professionals, but cited a number of court cases in which educators, social workers, and psychologists also experienced legal retribution for doing child protection work.

Since the 2011 Penn State scandal, dozens of state legislatures have enacted laws to increase the number of individuals required to act as mandated reporters, to increase training, and to raise the penalties for those who fail to report. But, as children's advocates note in three separate Amicus Briefs (Schott v. Wenk, Jones et al v. Wang, and Piro v. McKeever et al), without clarification and enforcement of immunity from liability for good faith mandated reporting, these laws are grossly inadequate.

The HHS report concludes, "Virtually every aspect of investigations into child abuse or neglect cases calls for independent professional judgments and decision-making that could be legally protected, as long as those actions are taken in good faith. … By providing such protections, professionals who work on these important cases could carry on their work with less fear of liability" for providing assistance to vulnerable children.

Solving this problem means we must first acknowledge that current unenforced laws compel mandated professionals to choose between their reputation and livelihood, and the best interests of a child. "Chain of command" reporting as we saw in the Penn State scandal is ineffective, places mandatory reporters at risk of retaliation, and must be eliminated in all settings. Finally, federal legislation is needed to enforce and expand protection for frontline professionals who do report child sexual abuse.

Retaliation against mandated reporters may be silencing the very adults who are in the best position to stop child predators and protect children. Children deserve adults who can speak for them without fear of reprisal.

— Nancy Guardia, MSW, LCSW, practiced as a clinical social worker in Massachusetts for more than 20 years, providing psychotherapy to individuals and families. She has expertise treating trauma survivors and working with men convicted of domestic violence. She is currently a licensed social worker in New York State and advocates for a national law on child protection.

— Franne Sippel, EdD, is a licensed psychologist in private practice. She has worked in the field of mental health since 1989. Much of her experience has been working with sexually abused children and adolescents.