Ohio v. Clark (No.13-1352): Duty of teachers to report suspected abuse

9 Mar

Most people do not want people, especially children, abused. One means of early intervention is mandatory reporting of suspected abuse by certain groups like teachers or medical personnel. Accessing Safety lists the pros and cons of mandatory reporting:

Pros
Supporters of mandatory reporting believe that mandatory reporting can enhance victim/survivor safety by:
• linking people with services that will provide information and referrals to improve their living situations,
• getting victim/survivors away from abusers and perpetrators;
• reporting violence, abuse, and sexual assault to increase the number of cases reaching authorities and being documented, thereby increasing an understanding of the prevalence of such violence and its incidence; and
• offering an opportunity to provide training on issues of violence to professionals and persons who are mandatory reporters.
Cons
Some feel that mandatory reporting may create more harm than good. They believe that risks and consequences of mandatory reporting can include:
• retaliation by abuser/perpetrator/stalker,
• broken trust and confidentiality,
• damage to an individuals’ right to self-determination, an issue that is of particular concern when working with people with disabilities, and
• damaging the relationship between the victim/survivor and service provider, and, ultimately, leading to victims/survivors not seeking help or not returning to services…. http://www.accessingsafety.org/index.php?page=137

The U.S. Supreme Court heard arguments in Ohio v. Clark (No.13-1352).

Mark Walsh reported in the Education Week article, Supreme Court to Hear Case on Abuse Reporting: Mandatory-Reporting Laws Complicate Teachers’ Role:

The U.S. Supreme Court next week takes up a case involving an important but uneasy duty of teachers: reporting suspected abuse or neglect of their students to the appropriate authorities.
The criminal appeal of an Ohio man asks whether teachers’ obligation as “mandatory reporters” of suspected child abuse—something required of them, along with various other professionals, in all 50 states—makes them adjuncts of law enforcement when it comes to prosecuting such cases.
The case of Ohio v. Clark (No.13-1352) also examines whether a child’s statements to a teacher about abuse trigger the Sixth Amendment right of the accused “to be confronted with the witnesses against him.” That typically means such witnesses must testify in open court, where the defendant’s lawyers may cross-examine them.

Darius Clark, a 27-year-old Cleveland man, argues that his rights under the “confrontation clause” were violated when he was convicted of felony assault and endangering children based in significant part on the trial testimony of two Head Start teachers. They recounted information from a child alleging physical abuse by Mr. Clark, who was the boyfriend of the child’s mother.
The 3-year-old boy, identified as L.P., was considered by authorities to be too young and unreliable a witness to testify in court, a common situation in child-abuse cases.

“This case could have implications anywhere there are mandatory-reporting laws, which is everywhere,” said Jason Walta, a senior attorney in the general counsel’s office of the National Education Association. The NEA has filed a joint friend-of-the-court brief with the American Federation of Teachers and the National School Boards Association on the side of the state.
Eric E. Murphy, the state solicitor of Ohio, will argue before the justices on March 2 that a mandatory duty to report suspected child abuse does not, as Ohio’s highest court held, turn teachers into agents of the police.

“The teachers in this case were acting more in a teacher-care capacity, not as the police,” he said in an interview….

Reporting Abuse and Neglect: One State’s Guidelines

A case in the U.S. Supreme Court involves a teacher’s duty to report suspected child abuse and neglect. A booklet from the Ohio Department of Job and Family Services serves as a reference for educators on the legal definitions and indicators of abuse and neglect, as well as reporting procedures. Both sides of the Supreme Court case point to one or more of the procedures as bolstering their case.

Among Ohio’s reporting procedures:
• Any school employee who has reason to believe that a child is being, or has been, abused or neglected shall immediately make an oral report of that suspicion to the local public children’s services agency. The report should include, among other information, the following:
– The identity of the caretaker or guardian of the alleged child victim.
– When and where the alleged abuse or neglect occurred, the type, extent, and duration of the alleged abuse or neglect, and the child’s current condition.
– The identity and current whereabouts of the alleged perpetrator, the relationship of the alleged perpetrator to the child victim, and the access he may have to the child. (Note: This is a key phrase pointed to by the criminal defendant to suggest teachers are serving as agents of law enforcement.)
• Immediately after making the report, the school employee shall notify the school principal that a report has been made.
• The oral report shall be followed up with a written report within five working days. That report could include additional helpful information from school records, such as the name of the family physician or other reports the school has made regarding the child.
• The booklet says that “since it is the responsibility of the [children’s service agency] to investigate alleged child abuse and neglect, school personnel shall not pressure the child to divulge information regarding specific circumstances or the identity of the alleged perpetrator.” (Note: This is a key phrase pointed to by the state to say that teachers are not being asked to serve as agents of law enforcement.)
Source: Ohio Department of Job and Family Services, Education Week. http://www.edweek.org/ew/articles/2015/02/25/supreme-court-to-hear-case-on-abuse.html#

Here is the summary of the case http://www.scotusblog.com/case-files/cases/ohio-v-clark/

Joan Meier, Professor of Clinical Law, George Washington University Law School wrote in Ohio v. Clark: Do Children’s Statements Have to Be Live Testimony:

Ohio v. Clark thus is the first case both to address children’s statements, and statements made to non-government personnel. First, because the primary purpose test requires an “objective” analysis of whether the circumstances indicated that the statements were made for “testimonial” reasons, or to seek help in an “ongoing emergency,” children’s statements are necessarily a different kettle of fish from adults’ statements. Many courts have wrestled with whether the intent of the speaker, the listener, or both must be factored into the analysis. But unlike with adults, we cannot infer children’s awareness or intent to report to law enforcement, so the objective determination of “purpose” must be made without that input…. http://www.huffingtonpost.com/joan-meier/ohio-v-clark-do-childrens_b_6057662.html
Education groups filed amicus briefs arguing the Ohio Supreme Court decision should be overturned.
The National School Boards Association reported in Legal Clips:
The National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA) have joined the National Education Association (NEA) and the American Federation of Teachers (AFT) in an amicus brief in Clark v. Ohio, No. 13-1352, urging the U.S. Supreme Court to reverse the Ohio Supreme Court’s holding:
(1) that teachers are acting as agents of law enforcement when questioning a minor student regarding suspected child abuse pursuant to Ohio’s mandatory reporting law for purposes of the Sixth Amendment’s Confrontation Clause; and
(2) that out-of-court statements to a teacher in response to the teacher’s concern about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause….
First, it argues that the Ohio Supreme Court adopted an expansive reading of the Confrontation Clause that would deputize millions of school employees (including teachers, counselors, and administrators), doctors, social workers, and even ordinary citizens as agents of law enforcement, and would render the U.S. Supreme Court’s well-established “primary purpose,” test largely meaningless. –
Second, amici contend that mandatory reporting statutes do not deputize teachers as agents of law enforcement. The brief states: “The argument that statements to mandatory reporters of child abuse are testimonial under the Confrontation Clause has been raised in a number of cases, and both federal and state courts have consistently rejected it….”
Third, the brief argues: “Even if school personnel were treated as agents of law enforcement (or if the Court were to broaden the audience to whom testimonial statements can be made), within the unique context of school settings it is clear that in virtually all situations, their inquiries into a child’s injuries are non-testimonial because those inquiries are made for the primary purpose of protecting children and not primarily to advance a future prosecution….” Fourth, amici assert that by deeming teachers and other school personnel as law enforcement when engaged in their mandatory reporter duties could also have far-reaching consequences that would undermine the welfare of students and the educational process.
Finally, the brief contends “even assuming that statements made to teachers or school personnel could be testimonial in some circumstances this case can be resolved on narrow grounds because the statements at issue here were non-testimonial for at least three additional reasons….” http://legalclips.nsba.org/2014/11/25/sua-sponte-nsba-and-osba-join-nea-and-aft-in-amicus-brief-urging-u-s-supreme-court-to-reverse-ohio-supreme-courts-holding-that-teachers-are-agents-of-law-enforcement-for-purposes-of-the-sixth-amen/#sthash.vZz5Zfg4.dpuf

The Supreme Court could uphold the Ohio Supreme Court’s decision or decide the case more narrowly.

Resources:

Mandatory Reporters of Child Abuse and Neglect https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/manda/?hasBeenRedirected=1

Mandatory Reporting of Child Abuse and Neglect 2013 Introduced State Legislation http://www.ncsl.org/research/human-services/redirect-mandatory-rprtg-of-child-abuse-and-neglect-2013.aspx

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