Saturday, September 05, 2009
Children’s safety threatened by schools’ failure to report abuse as the law requires
by Larry Geller
While I was away shopping at the KCC Farmers Market, Ian Lind posted a great criticism of our two dailys’ coverage of the Kamehameha Schools sexual abuse incident. Check it out.
Ian correctly identified the state law that defines school employees as mandatory reporters: HRS 350.
§350-1.1 Reports. (a) Notwithstanding any other state law concerning confidentiality to the contrary, the following persons who, in their professional or official capacity, have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, shall immediately report the matter orally to the department or to the police department:
(2) Employees or officers of any public or private school;
Under this statute, even the janitor in a public school is a mandatory reporter. "Department" means the department of human services.
Psychologists and social workers are trained on the responsibilities of mandatory reporting, but it seems that school officials not only may not be aware of the law, but could face retaliation if they do report.
The problem extends right to the top:
The law also provides immunity to people who file "good faith" reports of suspected child abuse cases, including allegations of sexual assault, O'Brien said.
"If a child came to school badly beaten with obvious bruises, then, of course, we would expect the school to report the matter," O'Brien said.
The same thing should hold true if a child reports being sexually assaulted, he said.
Failure to comply with the reporting requirement is a petty misdemeanor.
State schools superintendent Patricia Hamamoto said the reporting requirement is spelled out in Chapter 19 of the Department of Education's administrative rules, which have the effect of law.
"If we suspect something is criminal, we shall report it to the police," Hamamoto said. "We shall inform the police. It means mandatory reporting. For the department, if anyone knows of any potentially criminal activity, there must be a mandatory report to police."
If she is on campus and a student reports he got beat up, "I have to pick up the phone and call the police, call the parents," Hamamoto said. [Honolulu Advertiser, Kamehameha Schools obligated to report alleged sex assault to police, Hawaii attorney says, 9/5/2009]
Sorry, Ms. Hamamoto, that’s not right. Check out HRS 350.
Kam schools are no better. From the same article:
Ann Botticelli, vice president for community relations and communications for the school, said Wednesday that school officials did not contact police after the girl reported the incident. The school relies on parents to file criminal complaints on behalf of their children, Botticelli said at the time.
Sorry Ms. Botticelli, that’s not right. Check out HRS 350.
Perhaps public and private school employees and officials would know the law if it were ever enforced. Trying to find even a single incidence of a school employee dragged before a judge for violation of this statute has been a long-term frustration for me over the years.
If the statute were enforced (and it’s only a petty misdemeanor), perhaps these abuses would be reported and the children protected. The mandatory reporting law is the “front line” of protection for children—adults are supposed to report the abuse they witness. If someone knew they would be reported for abuse or for assaulting a student, perhaps they would think twice about doing it. Makes sense, right?
There are documented consequences for children when DOE employees do not report. I have personal experience of speaking to parents and hearing their testimony to the Board of Education from the time when I was an advocate for special needs children.
Special ed student kept in cage, mother kept in the dark
Here’s a case where DOE employees failed to report abuse. From a September 8, 2000 story in the Honolulu Advertiser:
… Meanwhile, department staff members are also investigating another allegation of abuse of special education children after a Maui woman told the board that staff at the autism center at Kalama Intermediate had put her son in a cage….
[The mother] said she was also told her son’s bathroom privileges would be stopped because he didn’t have an educational assistant.
She said there had been an investigation, but department staff would not tell her the outcome and that the special education teacher involved was back working at the center.
The parent testified that she found her son in the cage when she came to pick him up. The District Superintendent was aware of the incidents reported, yet as far as I could tell at the time, was never prosecuted for failing to report the abuse as required under HRS 350. Had it been reported, police would have ended the abuse and of course the parent would have been notified. She would also have had access to reports on the incident instead of being denied them.
Just incidentally, note that the alleged perpetrator was reported to be back working with children.
Soap, dog biscuits and pencil abuse goes unreported
This next incident also made the news—a special education teacher allegedly washed out the mouth of one student with soap, fed another dog biscuits, and pushed a pencil point into the mouth of another. None of the students could speak and complain about their treatment, but other school employees were capable of speech. Remember, now, as you read this snip from Board of Education minutes, that DOE employees are mandatory reporters under the law:
VI. Requests and Petitions from the Public, Including Input on Board Action Items
Several family members of students in special education classes gave testimonies of complaints and concerns with regard to the physical and mental mistreatment of the students in class and the lack of accountability in the special education programs. Allegations of misconduct against a particular teacher regarding specific incidents were brought to the Board’s attention. The fear of retaliation and job security were cited as reasons for the concerns not being reported by other employees (See Attachments). The Superintendent was directed to investigate and take immediate action in response to the concerns.
Mr. Larry Geller requested that those who have come forward to speak be protected against the threat of retaliation or job security and urged the Board and the Department to give serious consideration to the issue of retribution. [Minutes of the Board of Education, July 20, 2000]
In fact, everyone present at that BOE hearing who worked for the DOE was a mandatory reporter, yet no report was filed even as they heard the testimony. It was as though HRS 350 did not exist.
Parents learned afterwards that the alleged perpetrator was simply moved to another school, and in fact, promoted.
Now, shouldn’t the state Attorney General have investigated whether any violations of HRS 350 took place? In fact, a deputy AG wrote to the parents of one of the students, who was eight years old at the time and remember, could not speak,
“Your complaint to the Board of Education that [a teacher] fed dog biscuits to your son, was referred to us by the Department of Education for further investigation. The DOE would like to talk to your son as part of the investigation.”[Honolulu Weekly, 8/23/2000]
The letter went on to ask if the student would prepare a signed written statement. Had the AG spoken with school employees, the AG would have known that the student didn’t write, either. Had the AG spoken to other employees he would have learned that they didn’t report the incidents, perhaps through fear of retaliation, but regardless, they did not report. Probably the AG did speak to them as the case unfolded, but I could find no prosecutions under HRS 350.
Report and you might be fired
Are the fears of retaliation justified? I have documentation on one case in which a part-time special education teacher at Pearl Harbor Kai Elementary School stated as part of her whistleblower complaint that she reported abuse of a student to authorities to school officials and was reassigned and later terminated by the DOE. (Civil No. 00-1-1184-04). We understood, as this incident unfolded, that the alleged perpetrator continued with the DOE in another classroom.
So again, the alleged perpetrator stays on. An employee who reported the abuse as required by HRS 350 is terminated. The whistleblower suit was settled, and the terms are not public. It took the complainant a long time to find an attorney willing to take her case. Presumably, the damages were small because a part-time DOE teacher’s salary is small. Because of the difficulty in finding attorneys to take up these cases, it is easy for DOE to retaliate, which must be a powerful disincentive to report. Strengthening the whistleblower protection statute may also help protect the children.
So, has anyone ever been prosecuted in the DOE for failure to comply with HRS 350? I shouldn’t make assumptions. So today I am faxing a request to Peter Carlisle, Honolulu Prosecuting Attorney, and to Mark Bennett, state Attorney General, asking to view records of prosecutions of school officials under HRS 350 since the year 2000. I’ll let you know what comes of it. Stay tuned.
I think there are a number of problems that a number of people in positions of authority ought to be responsible for. But first, we should be clear: Chapter 350, HRS defines "child abuse or neglect" as used in the section you cited as "'Child abuse or neglect' means the acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed."
The problem is that the peers of the girl who raped her are not "any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care." This chapter is not applicable to the case at hand. I think Hamamoto's "knee-jerk" reaction to apply this law to 12 year old children is the same sort of reactive-emotional impulse that has courts trying 12 year old children as adults.
...which leads me to my second point. A number of recent opinions over the last two years by the Haw. S. Ct. has indicated that short of murder, it is more or less impossible for parents to commit child abuse against their children. That has a chilling effect on police, prosecutors and educators from reporting what clearly is abuse because of convictions against parents are reversed. If the S.Ct. is willing to reverse convictions for what would be felony assault if committed against an adult stranger, no one will report anything, when they are actually required to.
You may of course be correct. I lack a legal education. But schools are specifically included in the statute. The report must be made if a child exhibits evidence of abuse, and the reporter need not make any judgement about who might have done it. That's key. If you see abuse, report it, let the authorities evaluate. The reporter is not the one to determine things like the relationship of a perpetrator (who may be unknown to the reporter).
Example: child shows up in school with bruises that look like abuse.
Larry. I don't disagree with you about what ought to be. But the statute simply doesn't say what you want it to. Read the definition of child abuse for purposes of the reporting statute are in Section 350-1 which says ""Child abuse or neglect" means the acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed."
its "acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care". Those 2 12 year old boys are not "otherwise responsible" for the care of the girl they raped. So for purposes of the statute, there is no duty to report under Chapter 350. I am not disagreeing with you that it should be otherwise, or the school has a moral duty to report if not otherwise prohibited by law.
I pointed this out because what you argue ought to be the law, and at the moment its not. The judgment call about the person who abused is a significant loophole in the law.
Thanks for covering this Larry. The law exists in all 50 states: it is required to report suspected child abuse, regardless of the potential perpetrator. There are both federal and state requirements, and of course, common sense. According to her bio, Ms. Botticelli used to work at Child and Family Services. I hope the public outrage and discussion lead to some serious changes in how things are done.
More info here: http://www.childwelfare.gov/pubs/usermanuals/educator/educatord.cfm
Roxanne, the link you provided confirms exactly what I said earlier as to the federal statute:
"Any recent act or failure to act on the part of a parent or caretaker that results in death, serious physical or emotional harm, sexual abuse, or exploitation;"
The childwelfare.gov website goes so far as to underline parent or caretaker. Ch. 350, HRS and P.L. 108-36 is about parent and caretaker abuse, not peer to peer violence or other inappropriate acts.
Instead of hoping that public outrage and discussion lead to some serious changes in how things are done, why don't you help us to make that change happen?