The Dr. Larry Nassar sexual abuse scandal presents yet another teaching moment on how institutions should (and should not) respond to sexual abuse allegations.
The Nassar story is both horrific and achingly familiar. We have heard versions of this saga with the Catholic Church, Penn State and others. A person in a position of power, who has gained ready access to vulnerable children and young adults, uses that position to commit countless acts of sexual abuse. Meanwhile, the institution that put him in that position looks the other way. That the Nassar scandal involves victims who were Olympic medal winners has increased the publicity surrounding it, but doesn’t change the basic dynamic.
In Nassar’s case, there were over 150 victims (mostly young gymnasts), and three large institutions – Michigan State University, U.S.A. Gymnastics and the United States Olympic Committee – that were in positions to stop the abuse, but failed to do so. Some victims have alleged that they (or their parents) reported Nassar’s abuse more than 20 years ago, but nothing was done. Nassar’s employers apparently chose to accept his story that what he was doing to these young athletes was not sexual abuse, but rather a cutting-edge medical procedure
California’s Mandatory Reporter Law
Like every other state, California requires “mandatory reporters” to report child abuse and neglect. See Penal Code §§ 11164-11174.31. Mandatory reporters include a wide array of individuals who are in a position to protect children, such as teachers, coaches and administrators among many others. Penal Code § 11165.7. A mandatory reporter must submit a report when he or she has knowledge or a reasonable suspicion of abuse or neglect. “Reasonable suspicion” means
that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient.
Penal Code § 11166(a).
The question is not whether the mandatory reporter believes an allegation of abuse, but whether a reasonable person in the mandatory reporter’s position would believe that there is at least a suspicion of abuse. It should go without saying that when a child sincerely states that he or she has been touched inappropriately, a reasonable suspicion of abuse exists and a report should be made.
A mandatory reporter who fails to report known or suspected abuse or neglect can be prosecuted criminally and held liable in a civil lawsuit. Conversely, however, reporters are shielded from criminal and civil liability when they do submit a report. Penal Code §11172(a).
Report, Don’t “Investigate”
It is critically important to understand that when it comes to the reporting of child abuse, there is no presumption of innocence, and the mandatory reporter should not attempt to act as judge and jury. This is where people often go off track. They get a report of alleged abuse against a respected member of their organization, and they feel the need to investigate, to get the alleged perpetrator’s “side of the story.” There is a hesitancy to report the alleged abuse to outside agencies, out of fear of causing the alleged perpetrator to suffer embarrassment or damage to his reputation. The mandatory reporter, caught between two competing stories, and having an inherent conflict of interest due to his or her relationship with the alleged perpetrator and the fact that exposing the abuse might cause the institution that they both work for to face liability, all too often chooses to do nothing. This is, needless to say, absolutely the wrong approach.
The reporter’s job is to report the alleged abuse and allow the experts – law enforcement and child protective services – to do the investigating. Meanwhile, the report must be treated as confidential. Penal Code §11167.5. It is understood that this process will result in some false accusations getting reported to police and CPS and investigated. Some innocent people will have to endure some amount of inconvenience and distress. However, lawmakers have clearly decided (correctly so) that this is the price to pay for protecting children.
It is true that some of Nassar’s victims were over the age of 18 when Nassar abused them, and therefore the child abuse reporting statutes would not apply to them. However, the same principle does apply – sexual assault is a criminal matter that should be investigated by trained professionals, not handled internally by an administrator with a conflict of interest.
The scores of women who have come forward to recount how Nassar harmed them have shown remarkable courage, and their statements have done a world of good in showing young people that it’s OK to talk about such things. But the protection of children should not depend upon children. Adults can and must be the first line of defense. The mechanism for providing such protection is already in place. People simply need to use it.