Last updated on 2020-02-03
In yesterday’s bad headlines, KELO-TV slugs Bob Mercer’s report on the narrow defeat of House Bill 1230, Rep. Erin Healy’s bill to add clergy to the list of mandatory reporters, with, “Clergy Members Shouldn’t Be Required to Report Child Abuse in South Dakota, House Decides.”
But clergy are required to report child abuse in South Dakota.
Required by God and Scripture.
Required by conscience.
Required by SDCL 22-11-12.
Just not required to report the undefinable and hard-to-enforce “reasonable cause to suspect” in our dubious and arguably redundant mandatory reporting law.
To her credit, the well-intentioned Rep. Healy offered an amendment to remove church staff from HB 1230. Requiring custodians, organists, and other church workers with no training in medicine, psychology, or other fields useful in diagnosing physical and behavioral symptoms of child abuse and neglect made HB 1230 unacceptable. But even with Healy’s helpful amendment, HB 1230 is better off dead.
In the 33–34 vote, Rep. Healy’s ten Democratic colleagues stuck with her and the bill. The nays were all Republican, including mostly honyockers and extremists like Goodwin, Greenfield, Haugaard, Latterell, Livermont, Pischke, Weis, and Wiese. Unfortunately, in this case, the Democrats were wrong, and the extremist Republicans were right. HB 1230 and the mandatory reporting statute are bad and redundant law.
“Reasonable cause to suspect” was already part of the statute. If we’re going to argue that the language is undefinable and hard to enforce, maybe we need to redefine the mandatory reporting law.
Cory knows which side of the bed he sleeps on.
I would also argue that the language *should* be vague. No harm can come from reporting suspicion. We should ALWAYS be looking out for kids when we suspect abuse.
Exactly, Erin. No janitor, bookkeeper or choir master will be indicted because they didn’t recognize child abuse. Nor, indicted because they thought it wasn’t a big deal. It’s the recognizers who are told to “Shut up. The minister will deal with it.” who need to be obligated to overrule their boss and do what Spike Lee advises.
How else is one to stop the peophilia in the Catholic Church? We’ve all ‘suspected’ there has not done enough to stop it, and the child sexual abuse keeps happening. When it comes to suspected it turns to ‘probable’ when there is a history of it.
I disagree with you on this one, Cory.
Well said, Jenny. Allowing the Catholic Church to self police has gone far enough.
Professionals in SD (in the high potential category for child abuse) are given way too much respect before they’ve earned it. Just because they have a title that “should” be above suspicion is why young, future child abusers and offenders gravitate to that profession. I’m talking about preachers, teachers and cops. Regulating and requiring them and their employees to maintain high standards is not an insult. Those that question these regulations and requirements are to be viewed with a skeptical eye by all aware of it. A proper professional welcomes inspection. Employees know what’s going on and often justify silence with the excuse used by the German populace in WWII. “I couldn’t say anything or I’d get in trouble.”
The objection that the bill imposed a duty on church personnel:
seems misplaced. Nothing in current law seems to impose such training requirements on the current list of mandatory reporters. While some may have such training, many others are unlikely to have it.
And even if the bill appears to be redundant to the misprison of felony statutes, that doesn’t necessarily make it “bad law.” A redundant statute simply provides an alternative path to the same goal. Someone can be charged for his conduct under more than statute, but will be limited to being convicted under only one if the elements of each statutory offense are identical or overlap, and therefore are indeed redundant.
HB 1230, however, likely wouldn’t qualify as redundant to the misprison statute. The different language in HB 1230 establishes new, additional, elements of proof not required in the misprison statute, namely the status or employment of the accused and the nature of the underlying felony. And the amended statute seems to serve a completely different purpose than the general misprison statute, namely, protecting children in specific settings rather than generally requring the reporting of crimes. Generally this would mean that it creates a new, additional, offense to the misprison statute,which arguably means that an individual clergyman could be convicted and sentenced for the commission of two crimes for failing to report felonious child abuse: (1) a misprison offense without regard to his employment or the nature of the underlying felony; and (2) a failure to report offense based on his employment and the nature of the underlying felony.
Likewise, as Erin points out, since “reasonable cause to suspect” is already part of the original statute, this language is totally unrelated to the proposed amendment.
As I pointed out in another thread, there may be other legal problems with the statute, but the inclusion of untrained reporters, the existing standard, and redundancy are not a valid basis to reject the proposed amendment. While these concerns may evidence a need to amend the existing statute, they have little relevance, if any, to the wisdom of HB 1230.
The claim of statutory redundancy as an excuse for partisan politics in Pierre is getting overused.
I agree with Bear that training isn’t required, but I think training should be prioritized.
Training gives people a better basis and more confidence when they are confronted with a situation. Any clergy should have this training. Paid staff at a church should also have this training. You can do the training in an hour or two. The training is not to be able to put together a case against anyone. It is simply to recognize the signs of physical or sexual abuse, and what to do if you spot them. Most people aren’t going to witness and incident, they are going to have to recognize signs or behavior. I’m sure there are training modules on-line. Some police departments might have someone available to provide training. Ministerial associations should insist on and even provide for this training.
I support the law. I’m pretty sure social services offices provide training in recognizing signs of abuse for free.
Thank you for the comment, Erin. I would agree: if we have a bad law with a bad standard, we should clarify that bad standard before we make anyone else subject to it.
But *no* harm can come from reporting suspicion? If all I have is a vague suspicion that a legislator is having an extramarital affair, and I report that here on the blog, would there really be no harm done?
We can disagree, but I’m still waiting for the explanation of why the misprision of felony statute isn’t sufficient to achieve the goals we share of protecting children and stopping child abuse.
BCB, adding more untrained individuals to the mandatory reporter list shows the growing problem with the statute. We started with physicians, folks qualified to report with a real evidentiary basis. We’ve expanded it to folks who don’t rise to that bar. The statute is problematic. Problems inherent in the statute, though not unique to the amendment, are still reason not to amend the statute to snare more people in its scope.
Analogy: if I have imposed a regressive tax on food, you should oppose a bill proposing to add clothing to the scope of that tax.
Cory, reporting suspicions to Child Protection is not at all akin to writing a blog post about suspicions of an affair. Child Protection would not make any of it public. They’d investigate, including talking to the alleged perp. Nothing goes public unless the state’s attorney feels he has a prosecutable case. Your analogy fails.
The fact that Republicans misuse an argument, Porter, does not mean that the argument is invalid in all cases.
Misprison of felony is generic. I’m willing to bet few people are aware of that particular law and even fewer make the connection between that and witnessing or suspecting child abuse. The “minding my own business” culture is strong.
I can attest that there is a great deal of difference between thinking that child abuse is bad and knowing that I am required by law to report. There’s a huge gap between the two.
BCB suggested requiring all adults to be mandated reporters. I’m in favor of that too. It would be difficult to enforce or prosecute because most people don’t know the signs to look for, but getting the awareness to the front of folks’ thoughts is a positive step.
That it’s not done in all cases shouldn’t distract from the cases it is done in and how often it’s used to punish Democrats just for being Democrats. In this instance you’re using it wrongly to defend your position.
I don’t need training in arson if I believe the neighbor’s kid is starting fires in the neighborhood. I report it and let the police investigate or choose not to investigate. A crime is a crime and child abuse is a crime. If a clergy tells a church worker to keep quiet, the worker needs the protection of a mandatory reporting statute.
But Debbo, in being generic, doesn’t the misprision of felony statute apply to all situations, and do so better than this dubious mandatory reporter law?
I really am curious what legal function the mandatory reporter law serves that is not done by the misprision of felony statute.
I stick by my comment on reporting vague suspicions. I tell someone else my vague suspicion, and actions take place that can hurt the innocent and the reporter who acts without real evidence, just hearsay.
Cory, I answered your question in my last comment.
Cory, given your views on hearsay, what sort of non-hearsay evidence do you suggest should trigger the reporting requirements of suspected child abuse under the misprison statutes?
That’s a very good question, Bear. What standards exist for the current law to define “having knowledge, which is not privileged, of the commission of a felony”?
Surely “knowledge” includes directly witnessing the commission of the crime. Walk into the office, catch the priest in flagrante delicto with the altar boy—the law says, call the cops.
What else equals “knowledge”?
Debbo, my apologies if I misunderstand you: did you mean to say that the mandatary reporter law serves merely to raise awareness? If that’s the case, can’t we raise just as much awareness by telling people about the misprision law… or, to avoid blowing their minds with fancy vocabulary, just having the Attorney General do PSAs saying, “Child abuse is wrong. It’s also a felony. If you know about child abuse, call the cops. You owe it to the child and the law”?
Cory, here are a couple examples of hearsay statements that normally would not be admissible in a criminal or civil trial.
A nun approaches a supervising cardinal and tells the cardinal that three children have told her a particualr priest has been sexually abusing them. In a trial the cardinal is normally prohibited from repeating either statements by the nun or the children, and the nun herself is prohibited from repeating any of the three children’s statements. In each case the prohibited statements of the cardinal and nun repeating the children’s allegations are defined by statute as hearsay and deemed unreliable because they simply repeat another person’s statements made out of court and not under oath. They are inadmissible when offered to prove the truth of the matter asserted, namely child abuse.
https://criminal.findlaw.com/criminal-procedure/hearsay-evidence.html
Since both statements constitute inadmissible hearsay should either the cardinal or nun be obligated to report the statements to authorities in your view? And since they are hearsay, should authorities be permitted to investigate based on such statements?
If hearsay is excluded as a basis or standard for “having knowledge, which is not privileged, of the commission of a felony,” then reporting would necessarily drop substantially. Under current law, however, hearsay is normally considered sufficiently reliable to trigger an investigation, as I tried to point out in an earlier post at
https://dakotafreepress.com/2019/02/23/hb-1230-adding-clergy-and-church-staff-to-mandatory-reporters-problematic/#comment-129399
Cory, it’s not only awareness. It’s the fact that me, meaning my profession, is explicitly written into law.
As a clergywoman, I had unencumbered access to children almost daily and parents who happily entrusted them to me. A welder does not. Some professions/trades/jobs need to be singled out.