2013 Texas Legislative Update: Administrators of Institutions of Higher Education Liable for Failure to Report Child Abuse – A Response to the Penn State Sandusky Scandal that Could Punish Innocent Texas Students

http://www.foreclosurelistings.com/list/TX/TRAVIS/AUSTIN/resources/

Texas Rep. Dawnna Dukes (D-Austin) has filed HB 443 in response to the Sandusky child sexual abuse scandal at Penn State, in case something similar happens at a Texas university.  HB 443 creates a civil penalty of $1 million on the school if an administrator at an institute of higher education fails to report an incident of physical or mental abuse or neglect of a child on the institution’s property or at an event sponsored by the institution.

Texas Family Code Section 261.101 already requires that any person “having cause to believe a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately” report what they know to the appropriate authorities, generally any state or local law enforcement agency or the Department of Family and Protective Services (DFPS), per Tex. Fam. Code Section 261.103.  In addition, under Tex. Fam. Code Sec. 261.109 failure to report child abuse is punishable by a Class A misdemeanor or a state jail felony if the child had mental retardation lived in a state living center or ICF-IID (formerly ICF-MR) and the person knew the child suffered serious bodily injury.

HB 443 does not create personal liability or new criminal responsibility for administrators of institutions of higher education that fail to report child abuse or neglect.  However, HB 443 does not limit the failure to report child abuse law so administrators in a Sandusky-like cover up could still face Class A misdemeanor charges, just like everyone else.  For example, in Texas, Jerry Sandusky’s wife, Dottie, could be charged for failure to report the abuse if she knew about what her husband was doing and did not act.  Considering the Sanduskys’ own adopted son, Matt Sandusky, has come out saying he too was abused, it is difficult to believe Mrs. Sandusky was completely unaware, although it is possible.

In essence, HB 443 would create a civil liability that would make administrators in the same shoes as Penn State’s Graham Spanier, University President; Gary Schultz, Senior Vice President for Finance and Business (oversaw Penn State police); and Tim Curley, Athletic Director think twice about covering up child abuse on their campuses.  This liability would not be affected by the failure to report of the Joe Paternos, Head Football Coach; Mike McQuearys, former Graduate Assistant turned Assistant Coach; or Jim Calhouns, janitor, of Texas universities.

At this time, HB 443 has been referred to the House Committee on Higher Education.  It is a long way from becoming a law.  Although this law would provide sufficient incentive for administrators to not cover up child abuse on campuses, the $1 million fine would, realistically, be passed on to innocent students.  Students who have nothing to do with the child abuse could see their tuition bills increase or some campus services decrease in order to pay the fine.  In many ways, this fine is like the current Penn State football team paying a $60 million fine and having a 4 year post-season bowl games ban based on the crimes of past generations they had nothing to do with.

For this reason, I am doubtful the deterrent benefit of HB 443 will outweigh the unnecessary punishment of innocent students if applied to Texas universities.  Unfortunately, a bill creating personal liability for administrators who failed to act when abuse happened on their campuses would never pass.  Such a law would definitely create a reason to report every child abuse incident on campuses in a timely manner.

It’s Time for a Federal Mandatory Reporter Law

http://abcnews.go.com/Health/jerry-sandusky-penn-state-scandal-pedophiles-groom-victims/story?id=14896987

The Penn State sexual abuse case has been all over the news. Americans are disgusted with the moral apathy exhibited by the administrators and coaches who covered up abuse allegations. Their failure to report likely caused scores of additional children to be subjected to an alleged sexual offender.

Instead of looking backward, placing blame, and pointing a finger, one U.S. Senator has taken the initiative to make sure this cover-up never happens again in America. Senator Robert Casey, a Pennsylvania Democrat, filed the Speak Up to Protect Every Abused Kid (Speak Up) Act of 2011. The bill requires states to pass mandatory reporter laws (i.e., if you witness child abuse, no matter whom you are, you must report it to the authorities or face criminal charges). If states fail to comply, they risk losing federal money under the Child Abuse Prevention and Treatment Act (CAPTA). There’s more information from Senator Casey’s office here.

If this law was in effect when Penn State Assistant Coach Mike McQueary allegedly witnessed Jerry Sandusky abusing a child in the team’s locker room showers, there would be no question where he should have gone next–directly to the police. It makes little sense that a crime so heinous, that involves children, can be subject to reporting up an unreliable bureaucratic chain of command. There are too many links in the chain that may prevent reporting, as demonstrated at Penn State. Nevertheless, Mike McQueary could and should have went directly to the police. This new law would make him criminally liable for what he, in hindsight, knew he should have done.

Thankfully, Texas already has a mandatory reporter law on the books. Texas Family Code 261.101(a) provides: “A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.”

According to Senator Casey’s press release, the bill would also:

  • Provide support to states to carry out educational campaigns and training to inform individuals about what constitutes child abuse and neglect, and promote greater responsibility;
  • Promotes new approaches and techniques to improve reporting; and
  • Evaluate states’ progress on mandatory reporting.

The bill is picking up steam. Senator Robert Menendez has filed a similar bill, the Child Abuse Reporting Enforcement (CARE) Act, that would make failure to report abuse a felony. Hopefully, Congress acts soon.