California law has changed dramatically for mandated reporters of suspected elder or dependent adult abuse. The good news: The changes only impact some instances of abuse. The bad news: The law is a needlessly complex mess.
While the California legislative process often works quite well — witness the passage of SB1172 — a pair of other bills that got far less attention this year will also impact the practices of MFTs, LCSWs, and LPCCs (and all psychotherapists) in the state.
California’s requirements for mandated reporting of elder and dependent adult abuse have changed significantly. These changes have already taken effect, because one of the bills putting the changes into place was marked as emergency legislation. The new law replaces what had been a single standard for when and to whom reports are sent with five different standards based on the specifics of the situation — specifics that, under the law, mandated reporters are not required to investigate.
“Wait, what?” is a fully appropriate response here.
Assembly Bill 40 began in 2011 as a response to an information-sharing problem. When elder or dependent adult abuse takes place in a long-term care facility (such as a nursing home), mandated reporters could report to either law enforcement or the county ombudsperson (a sort of resident advocate for those in long-term care). However, there were problems with information-sharing between ombudspersons and law enforcement, so AB40 initially would have required mandated reporters to send their written reports of suspected abuse to both.
It was a dumb and expensive way to solve the information-sharing problem, forcing therapists to take the time to make duplicate reports rather than just fixing the information flow between ombudspersons and law enforcement. Some of California’s mental health professionals jumped in to oppose the measure.
But it moved forward anyway, with the support of ombudspersons and law enforcement organizations. AB40 was amended many times through its journey through the legislature, and many of the same changes were proposed in Senate Bill 1051. Where the process ended is this:
As of today (because SB1051 was marked emergency legislation, it took effect September 27, 2012, immediately upon the Governor’s signature), mandated telephone reports of suspected elder or dependent adult abuse in California must be made “immediately or as soon as practicably possible” in some cases, “immediately, and no later than within two hours” in others, and within 24 hours in others. Written reports must be sent to various combinations of law enforcement, adult protective services, county ombudspersons, and facilities’ licensing agencies — requiring triplicate reporting in some instances. Filing reports via Internet appears to be allowed in some instances and not others. And the acceptable time frames for written reports will now vary as well, from 2 hours to two working days. These combinations are based on:
Whether the abuse took place in a long-term care facility
Whether the abuse was physical abuse
Whether the abuse resulted in serious bodily injury
Whether the abuse was caused by a resident with a physician’s diagnosis of dementia
For the problems that existed with the old standard, at least mandated reporters could be reasonably expected to know who they needed to report to, and when. The new standards are simply too complex to be held in memory, and will likely result in many reports being sent to the wrong places at the wrong times.
It’s bad law.
But it is currently the law of California. So mandated reporters will need to be able to determine where their reports should go and when.
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.
Under 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.
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.
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:
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.
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.
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.”
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.