Almost eight years ago, I wrote about how California’s Child Abuse and Neglect Reporting Act was naive and discriminatory. By applying one set of child abuse reporting mandates to consensual heterosexual intercourse, and a very different, stricter set of reporting mandates to other forms of consensual sexual activity, the law plainly discriminated against LGBT adolescents in same-sex relationships. It also failed to address typical adolescent sexual development, making intercourse non-reportable in many instances where other activities adolescents would engage in during the run-up to intercourse were mandated reports.
That law has finally changed.
Thanks to the sheer endurance of Assemblymember Cristina Garcia, as of January 1, 2021 California’s child abuse reporting standards surrounding consensual sexual activity involving minors have removed the discriminatory elements. In their place is finally a simple and clear standard.
(Content note: As you might expect, this post necessarily includes discussion of specific sexual behaviors.)
The old rules
The old rules applied two rules to consensual, heterosexual intercourse:
- The 14th birthday rule. If one partner is 14 or older, and the other partner is under 14, the therapist must report.
- The 21/16 rule. This rule is sometimes colloquially known as the “drinking and driving” rule: If one partner is old enough to drink (21 or older), the other partner had better be old enough to drive. If that other partner is under 16, it’s a mandated report.
But those rules applied only to heterosexual intercourse. Oral sex, anal sex, and object penetration (objects in this usage can refer to other body parts, like fingers) were always a mandated report if a minor was involved, regardless of the age combination of the partners, even if the activity was consensual and the minors were of similar ages.
The new rules
The new rules apply the 21/16 rule across the board. They apply it to intercourse as well as the other noted forms of consensual sexual activity. (The 14th birthday rule is still in place, but applies only to intercourse.) Of course, any form of activity involving a minor that is not fully consensual is always (and has been) a mandated report, regardless of the partner’s age.
(There’s more information on this and other 2021 changes in California law in my 2021 California Legislative Update course on SimplePractice Learning. It’s one hour of on-demand video, and covers a number of other legal changes worth knowing. Full course details at that link.)
The long history of known discrimination in California child abuse reporting
The legislature has known for a long time that this piece of CANRA was problematic. A legislative task force was assigned to work on the problem in 2002 — almost 20 years ago, and in response to known problems in the law — and proposed a specific fix in 2004. But while many of the task force’s other recommendations were adopted, this element was unchanged.
In February 2013, I gave a presentation to the BBS about the problems that the uneven standard created: Some therapists warned their clients against sharing information about their sexual activity. Others tried speaking in code with their clients. Still others simply violated the reporting law, accepting the risk that comes with doing so.
As I wrote then, the BBS did a smart thing: They kicked the issue to their legal counsel, who responded with a four-page opinion giving therapists more flexibility in determining whether to report. But the language in the statute stood, leaving therapists in the awkward position of not wanting to become the test case that would determine whether that legal opinion was valid.
By this time, Assemblymember Garcia and her team had already started trying to solve the problem through legislation: Her first effort was in 2011. Now, after almost 10 years of effort, she’s gotten across the finish line. Progress is slow, but it’s real. And California’s adolescents and their therapists will all be better off as a result.