California mandated child abuse reporters would no longer need to discriminate against gay or lesbian youth. But the legal opinion is just that: An opinion.A legal opinion announced on Thursday by the California Board of Behavioral Sciences appears to go partway to resolving the problem of discriminatory reporting of child abuse. The opinion, prepared at BBS request by legal counsel for the Department of Consumer Affairs, essentially says that oral sex, anal sex, and object penetration should be treated the same as vaginal intercourse when considering abuse reporting. If two minors of similar ages (as defined by the law; see the age combination descriptions in this earlier post) engage in consensual acts without evidence of coercion or other signs of abuse, those acts are not reportable. BBS Executive Director Kim Madsen announced at Thursday’s Policy and Advocacy Committee meeting that she would make the full legal opinion public. While the opinion does not carry the weight of law, it should be helpful for therapists seeking to understand when the BBS expects child abuse reports to be made, and when the therapist can rely on their own judgment as to what is abusive. # # # Your comments are welcomed. You can post them in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
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.
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. # # # 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.