California’s child abuse reporting act is naive and discriminatory

California law defines normal, consensual, adolescent heterosexual behavior — and all same-sex sexual behavior — as child abuse. The law is discriminatory. It harms the therapeutic relationship. It needs to be changed.
                                                                                                                                                                                                                                                                                                           

California Capitol-fromSWUnder California’s existing standards for child sexual abuse, if minors are having consensual sexual intercourse, their ages determine whether a therapist needs to report it as abuse to the local child protective agency. The math goes something like this(1):

  • One partner 13 or younger: If the other partner is also 13 or younger and both children are of similar maturity, report only if there is evidence of intimidation, coercion, bribery, or other exploitation. If the other partner is 14 or older, report.
  • One partner age 14 or 15: If the other partner is under 14, report. If the other partner is 14 to 20 years old, do not report unless there is evidence of exploitation as described above. If the other partner is 21 or older, report.
  • One partner age 16 or 17: If the other partner is under 14, report. If the other partner is 14 or older, do not report unless there is evidence of exploitation as described above.

That’s all fine and good, right? It is complex, sure, but it reasonably takes into account the ages of the partners, and the nature of their relationship (truly consensual versus exploitive). So far, that seems okay.

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The problem is that the above guide only applies to heterosexual, vaginal intercourse.

Under the same law — officially the Child Abuse and Neglect Reporting Act, or CANRA — oral sex, anal sex, and object penetration (including fingers or any other part of the body) are always considered child abuse if either partner is under 18 years old, even when the activity was consensual and there is no evidence of coercion or exploitation of either partner. Similarity or difference in the ages of the partners does not matter.

This results in problems for three groups of adolescents in therapy: Normally-developing heterosexuals, normally-developing gays and lesbians, and religious adolescents seeking to preserve a specific notion of virginity. (Yes, those three groups cover just about everybody.) Let’s look at each.

  • For normally-developing heterosexual teens, it is common to engage in oral sex before progressing to intercourse. Most of those who have had sex before age 18 have also had oral sex(2), and a 2006 review of national data showed that at almost a quarter of teenagers who had not had vaginal intercourse had engaged in oral sex. This sets up a backward reporting standard, where sex itself may not be considered abuse depending on the ages of the adolescents, but behavior that occurs earlier in development or as foreplay to intercourse is considered abuse.

  • For normally-developing gays and lesbians, any sexual activity before reaching adulthood is classified as abuse in the eyes of the law. Remember, oral sex, anal sex, and object penetration are always considered abuse if either partner is under 18. If we have finally reached the point where consensual sex between gay or lesbian adults can no longer be criminalized, it seems a natural extension to treat consensual sexual activity among gay and lesbian teens on a par with consensual sexual activity among straight teens. If we say consensual, heterosexual sex between minors that meets specific criteria (not exploitive, and weighing the minors’ ages) is not abusive, shouldn’t that same treatment be given to similar consensual, homosexual behavior under the same conditions?

  • Religious teens get caught in this mess too, as was pointed out by Dr. Judy Johnson, a Licensed Educational Psychologist who serves on California’s Board of Behavioral Sciences. It is not unusual for religious, heterosexual teens to engage in oral or anal sex instead of vaginal intercourse. These teens often specifically cite their religious beliefs as a reason for delaying intercourse. At an April committee meeting for the BBS, Dr. Johnson noted that these teenagers often say they are seeking to preserve their virginity. So, even in a consensual relationship, a teenager preserving their virginity on their own terms means engaging in what the state would consider child abuse.

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Therapists are caught in a terribly awkward place by the law. When working with adolescents who are experiencing normal development, the therapist has several options, all of them problematic:

  1. Direct the client not to share important sexual experiences. This usually starts with educating the client on the law’s limits to confidentiality, and may involve frequent reminders to the client about what cannot be discussed in therapy. This keeps the therapist from having to report, and thus keeps them compliant with the law, but it also closes potential conversation about a key area of adolescent growth and social development. Teenagers often want to discuss their relationships in the safe context of therapy precisely because they trust the therapist to have such conversation in private and without judgment. Stopping this conversation means that teenagers cannot have honest conversations with their therapists about sexual feelings and behaviors, including the risks and consequences of their actions. For teenagers who already distrust adults, this only further fuels that distrust. Finally, as should be obvious, directing teens not to talk about sexual experiences means directing them not to talk about experiences of real abuse that should be reported.

  2. Educate the client about what must be reported, and then allow them to use coded language. I have known some therapists who felt better using this as a middle-ground option, to at least give their adolescent clients some leeway to discuss sex. However, it (by design) leaves the waters of what is being discussed muddy on both sides, and leads to awkward, stilted conversations about sexual behavior. It also doesn’t really protect the therapist; regardless of what specific words the client is using, if the therapist reasonably believes the client is communicating that a reportable act took place, the therapist is legally obligated to report it.

  3. Choose not to follow the reporting law, accepting the liability that comes with that decision. A therapist who knowingly fails to report what the state considers child abuse can face up to six months in jail. However, taking on this risk allows for the most open and honest discussion of a client’s sexual behavior, and comfortable communication about sexual activity actually delays risky sexual behavior.

In practice, none of these options strikes an effective balance between protecting minors from actual abuse and allowing for an open and safe therapeutic environment. Therapists who want to provide appropriate clinical care to teenagers, which should include openly addressing sexual behaviors and the client’s thoughts and feelings about them, simply cannot do so under the current law. Few therapists today would disagree with the notion that truly abusive behavior should be reported, but requiring therapists to label behavior that is developmentally normal as “abuse” does far more harm than good.

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In 2010, Gerry Grossman and a group of colleagues pushed for clarifications to the law. While they were unsuccessful, their efforts did yield a number of stories from practicing therapists about the damage CANRA does in its current form. One example (emphasis mine):

Because of this antiquated reporting law, I warn my adolescent clients not to talk to me about these things, as I am required by law to report it. As one of my grad students asked, “You mean, you have to tell a teen not to talk about something they most likely need to talk to someone about?” I sadly must explain, yes.

While I’m no lawyer, the fact that the law is discriminatory on its face would seem to make it unlikely to withstand a legal challenge. If I were the state of California, I certainly would not want to be defending the existing law in court. But why should the state wait to be sued by a 17-year-old reported as a child abuser for having consensual oral sex with his or her 17-year-old, same-sex partner? It would be far preferable to resolve the issue through legislation, but so far there has not been enough political will to make the needed changes. Because an amendment to make the law fair would necessarily reduce the mandated reporter’s obligations, it would look like a weakening of the child abuse reporting law — and in the wake of the Jerry Sandusky scandal at Penn State, lawmakers have reflexively moved in the opposite direction. An analysis from the California Assembly Appropriations Committee lists no less than seven bills in the state legislature this year that would expand mandated reporting and stiffen penalties for failure to report.

The Board of Behavioral Sciences has expressed interest into at least examining the issue. I brought this to them at their April [page 27] and July Policy and Advocacy Committee meetings, and they have agreed to place it on a future agenda for discussion. What’s really needed, though, is a lawmaker with the nerve to stand up and say, “The current law is wrong, it discriminates against gay and lesbian youth, and it makes it harder to provide a safe therapeutic environment for normal, healthy adolescents. Let’s make the law do what we intended for it to do in the first place: protect vulnerable people from harm. Let’s stop requiring therapists to label normal teenagers as child abusers.”

References

1. Atkins, C. L. (2007). Reporting consensual activity between minors: The confusion unraveled. The Therapist, 19(1), 32-35.
2. Halpern, C. T., & Haydon, A. A. (2012). Sexual timetables for oral-genital, vaginal, and anal intercourse: sociodemographic comparisons in a nationally representative sample of adolescents. American Journal Of Public Health, 102(6), 1541-0048.

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As I said, I’m not a lawyer. The above information should not be construed as legal advice when determining whether a child abuse report is required. Consult with a supervisor and/or an attorney about your specific situation.

What are your thoughts about the law and how to best fix it? Post a comment below, email me at ben[at]bencaldwell[dot]com, or post a message to my Twitter feed.

Teen texting study an example of a researcher misleading the media

A new study connects the texting habits of teenagers with drug use and other risky behavior. Contrary to media reports, the study did not show texting to cause the teens’ risk-taking.

Teenagers who send more than 120 text messages a day are more likely than their peers to engage in a variety of risky behaviors, including sexual activity, smoking, drinking, and drug use. That much we can agree on. It was the key finding of a Case Western Reserve University School of Medicine study presented this week.

Media coverage was predictably breathless:

But there is a big problem with each of the stories linked above. As compelling as these stories are, texting did not cause poor health or risky behaviors in this study. More precisely, the study did not show a cause-effect relationship. It found correlations — associations between certain behaviors that tend to rise and fall together. It did not say what causes what.

If we know that one behavior (texting, in this case) is more common among people who also do another behavior (let’s use drinking), then we can say the two behaviors are correlated. But that leaves at least three very different possibilities when it comes to cause and effect:

  1. Texting causes drinking.
  2. Drinking causes texting.
  3. Some other thing (lack of parental supervision, maybe?) causes both drinking and texting.

A correlational study (like this one) does not tell us which of those three possibilities is most likely (the third strikes me as by far the most plausible). And reporters understand that conclusions about correlation are not especially enticing news stories. “This one thing is related to this other thing, but we do not really know what causes either one of them” makes for a lousy article.

So reporters sometimes go beyond what a study actually shows, and pull a cause-effect relationship out of thin air. In essence, they pick their favorite out of the three possibilities listed above, and run with it. They do this in spite of a complete lack of data supporting their conclusion over the other cause-effect possibilities.

That seems to be what happened here. What is unusual in this case is the degree to which the study’s lead author actively promoted the made-up conclusion.

Even though the press release about the teen-texting study largely uses the right terms in describing the results (labeling behaviors as being “associated with” each other), Scott Frank, the lead author of the study, was remarkably cavalier in determining a cause-effect relationship his study did not demonstrate. He is quoted in that same press release as saying

“When left unchecked, texting and other widely popular methods of staying connected can have dangerous health effects on teenagers.”

The medical school where the study was conducted is also encouraging this unsupported conclusion. The link to this study from the Case Western School of Medicine home page currently reads “Hyper-texting and Hyper-Networking Pose New Health Risks for Teens.”

Frank’s promotion of a conclusion his own data does not support prompted an unusually direct rebuke from John Grohol, the CEO of PsychCentral, whose own site had reported on the study earlier. Grohol wrote that Frank’s conclusions about texting having negative health effects are (emphasis Grohol’s)

all pure crap. You could just as easily write the following headlines:

Teens Who Smoke, Drink Also Text a Lot
Outgoing Teens Like to Do Things Outgoing Teens Like to Do
Teens Who Enjoy Sex Like to Text Too!

Scott Frank, MD, MS should be ashamed of himself.

I’m with Grohol on this. For Frank to say that texting can have negative health effects is, as Grohol put it, “sloppy at best, and unethical at worst.” Frank is promoting a conclusion his study simply does not support. And some media outlets appear to be all too happy to run a story confirming parents’ worst fears about teenagers and technology, even when the story and the data do not match.

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In deference to my journalist friends, it must be noted that the examples of poor media coverage above are far outweighed, in both quantity and quality, by the many stories covering this study that ignored Frank’s quotes and reported his results accurately. Search “teenagers texting drinking” on Google’s news site and you will find far more headlines using phrases like “linked to” or “associated with” than you will find “causes.” Kudos to those writers (of both the stories and the headlines, since they are often not the same person) who understand the difference.