Wednesday, January 6, 2010

Mandated Reporting - Why needed?



Guest Post in response to comments on  Jewish Calculus of suffering see also Sex offenders II and  Rav Silman's Teshuva

Dear Rabbi Eidensohn,


Thank you for your response, I value your engagement on this. Regarding your contention that "there is no legal issue here", I need to respectfully disagree. The fact that the family did not want to press charges at the time is immaterial to the question of mandatory reporting. The 'duty to report' is an independent obligation of certain professions (and in some places, on every citizen), usually at minimum teachers, health professionals, and clergy, to report to Children's' Aid (or Child Welfare, again: the names will vary) any instance where through their professional work they become aware of a child having been abused, and/or where there is a potential continuing risk to any child's welfare (whether sexual or physical abuse---in some places also emotional abuse--or neglect). A generic summary can be seen here: http://en.wikipedia.org/wiki/Mandated_reporter Usually there is no time limit for this obligation from the time of the incident. Failure to report often carries a penalty of jail time, in Israel I seem to recall it's 6 months. I encourage you, with or without reference to the case under discussion, to phone your local Children's Aid and find out what your legal obligations are in your jurisdiction.

It is precisely because of our natural tendency to "assume" that "someone" else must surely have determined that the assailants are no longer a threat that mandatory reporting laws have become so common. Experience has shown that we can never assume that someone else has taken care of it---usually they are assuming the same thing. Believe me, I know the kind of hassles that can be involved in taking the step of reporting something like this because I've done it a number of times. We are all meshuchadim when it comes to deciding whether someone else 'must have' taken care of it, so the secular law---wisely, in my opinion---takes this decision out of our hands (assuming we choose to follow it).

Having worked as a psychologist in educational and clinical settings since 1996, I've had more cases like this than I'd care to remember; more than I would have expected to have. I see from your website that you are someone who is not afraid to speak out on matters of importance to the Jewish community. So please let me share this with you and your readers: The fact is that if the "rape" as you've called it was never brought to legal attention, it is highly unlikely that a satisfactory assessment was ever made as to whether these men pose a continuing risk. In fact, a teenager who "rapes"---your word---a 10 year-old child is a disturbed individual who we can safely assume does pose a continuing risk. If the case never went to a legal process the reasonable working assumption must be that these men are out there and abusing to this very day. That is pikuach nefesh, as your case example neatly illustrates. Some pedophiles---in the frum world as well---have gone on abusing with impunity for decades because people preferred to assume that someone else must have reported it.

That is why I suggest we need to resist the understandable tendency to prematurely "take away" the legal issues and the concern for future danger to others, to turn to "...the profound"---yet in important ways much easier---"...question of how to give meaning to this event."

Please consider the following: Whenever we hear such a story---even "by the way"---we should ask questions to determine whether the assailant was reported to authorities equipped to assess and monitor future risk. The day that Beis Din is able and willing to take on that role will be a great day---that has not yet come in my experience. The victim should be encouraged to name their abusers---they themselves can generally choose to remain anonymous---and this information should be passed on to those with the training and resources to protect future victims, as a matter of pikuach nefesh.

Respectfully and with blessing,

Yaacov Lefcoe, MA (Psych)

13 comments:

  1. Thank you for this very timely and much needed post!!!

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  2. The mandated reporter law backfires when it discourages people from approaching a counselor out of fear that they'll be making a bigger deal out of their issue than they intended. Approaching someone for counseling is a major emotional step for people and to go with the knowledge that there are legal and criminal issues that will need to be addressed makes it so much more difficult to make those first steps.

    I think it also discourages counselors from taking on cases of abuse, knowing that those cases will require a heavier burden on their resources than others. I have seen how counselors will refer patients to other counselors because they'd prefer not to get involved in the hassle of the legal and criminal issues.

    Maybe others with more experience have a solution for these problems, but that has been my observation and it seems to me that the system is faulty at its core.

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  3. Sam has raised a very important issue about mandatory reporting and client confidentiality, saying that such laws may cause victims to avoid seeking professional help, out of fear that they would not have control over how information about them and their experiences is used or released.

    So here's the scoop on this: The client needs to go to the therapist and say: "There are some things that I might want to talk about here, but I'm worried you might report them to the authorities. It has to do with x, y, z (child abuse, sexual abuse, abuse by a professional, self-harm, child neglect etc.). I want you to explain to me my confidentiality rights, and exactly under what circumstances you would be required to report things without my agreement."

    In truth the therapist should have explained the limits of confidentiality at the beginning anyway, but you can always ask, and ask lots of questions.

    You should expect and demand a clear and full accounting of what confidentiality means and entails, as well as a clear listing of what situations would trigger--by law--release of your records, even without your consent. In Ontario for example it's roughly: risk or serious harm to self or others (e.g. suicide risk, or murderous plan); a child at risk, or order of a court (which can be fought at times).

    In jurisdictions I've worked in a duty to report will not be triggered unless the client names the perpetrator. You can check this with the therapist. That means that you could calmly discuss the matter as long as you wish, without ever triggering a duty to report on your therapist, by simply refusing to name your assailant. You may eventually decide that for your sake, the sake of justice, or to protect future victims, that you do wish to make an anonymous complaint. Or, you might file charges (which would not be anonymous).

    In any event, as long as you work with a member of a regulated profession (psychologist, social worker, etc), AND you know what the rules are, so you CAN and WILL be able to maintain control of the release of your information by careful planning about what you say.

    Yaacov Lefcoe, MA (Psych)
    Rosh Pinna

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  4. Soon to be MSW agreeing with original posterJanuary 6, 2010 at 11:07 AM

    I have to respectfully disagree with Sam. There needs to be some sort of boundries set. The mandated reporting may cause some not to come forward for help, that's the individuals choice to make. The positives outweigh the negatives and there has to be rules. No system will please everybody.

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  5. As regards Sam's comments about some therapists seeking to avoid cases of abuse:

    1) Obviously very often we do not know that the case is about abuse until the client has come for awhile, built up trust, and then it emerges. We all need to be prepared for that, it comes with the territory. If you're getting overwhelmed, cut back on your work, make referrals to others (preferably before seeing the client), do something else for awhile.

    2) The need for highly professional, consistent, supportive peer and mentoring supervision is vital. Do not scrimp on paying for supervision.

    3)Some cases that raise complicated legal, communal issues and demands are best handled in the context of an interdisciplinary team in some kind of institution, which can often provide better "built-in" therapist support and supervision, as well as political cover when needed (e.g. when a prominent rabbi's son has been named in a mandatory report, etc.)

    Yaacov Lefcoe, MA (Psych)
    Rosh Pinna

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  6. Thank you Rav Eidensohn, for posting this brief essay.

    Yaacov Lefcoe is absolutely right, on every count. As someone 'in the business', I take great comfort in his forthrightness. All too often, clarity and directness are lacking when the discussion turns to mental health issues in the frum community. Rav/Dr Avrohim Twersky deserves a medal for his steadfastness in addressing the issues when no one else even acknowledged there were issues the community had to face.

    I would only add one thing: reporting is often categorized as a kind of mesirah. Nothing however could be further from the truth. As long as the abuser is allowed to go free, he remains a threat to the entire community. His/her (and yes, there are women abusers) continued exposure to the entire community poses a great threat.

    One could argue that not reporting an offender sets up a 'lifnai eevair' that imperils a community.

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  7. JWB says:

    It is clear that not only are mandated reporting laws necessary to protect our children, more is also needed.

    An example I often refer to (Excerpt):
    Grappling with Sexual Abuse in the Orthodox Community - No Longer Taboo
    For years, the Orthodox community has hidden it. Now, a confluence of factors is making their sexual abuse problem come out of the closet.
    By Julie Wiener
    Jewish Telegraphic Agency - 2001
    ...
    At its convention this year, the Rabbinical Council of America, which represents 1,100 mainstream Orthodox rabbis, held an open and detailed discussion about sexual abuse led by Dr. Susan Shulman, a pediatrician who served on the O.U.'s commission investigating the Lanner scandal and lectures frequently about sexual abuse.
    ...
    In her RCA speech, Shulman told of an anonymous rabbi who impregnated a student while he was principal of a school for Jewish girls with learning disabilities. When he was fired, he moved to another community where he is "still a prominent rabbi."
    ...



    How our leadership can choose to not expose and publicize this monster's name is beyond me. How such a person can be allowed to still remain a "prominent rabbi" is outrageous.

    There is much that must change.

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  8. With respect to the following situation, posted above by Anonymous-JWB:

    "In her RCA speech, Shulman told of an anonymous rabbi who impregnated a student while he was principal of a school for Jewish girls with learning disabilities. When he was fired, he moved to another community where he is 'still a prominent rabbi.'"

    So here you have the classic scenario where several people have apparently broken mandatory reporting laws, enabling the continued "career" of a sexual abuser.

    I am a psychologist not a lawyer. My working understanding (based on presentations and policy directives [chozrei mancal] given to the Municipal Psychology Service where I worked several years back) is this: Every single person on the staff of that first school that knew about the girl having been sexually abused--that's everyone from the janitor to the secretary, to the guidance counselor to the teachers and principal--was obligated to VERIFY that a report was indeed made to Childrens' Aid (Pekidat Saad), and in case of any doubt, to REPORT it themselves. Failure to do so could result in 6 months jail time, aside from any civil liability.

    Re civil liability: If that teacher, "rabbi" whatever again sexually abuses a child, so that child, or their parents, can sue anyone on the staff who failed to insure that a report was made.

    Maybe what we need are a few good solid multi-million dollar damages suits against teachers, counselors, principals, schools and yes even secretaries and janitors, who fail to report sexual abuse of minors.

    You work in education? Call Childrens' Aid and ask: what is my obligation in this jurisdiction? KNOW YOUR OBLIGATIONS and carry them out scrupulously. This in itself could save many, many innocent souls from great suffering and confusion, and at times even terrible despair and suicide.

    Yaacov Lefcoe, MA (Psych)
    Rosh Pinna

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  9. Contrary to Israeli law and that which applies to public schools - yeshivos are not covered by mandatory reporting laws.

    It is still possible to sue a yeshiva for failing to protect a child - but apparently it is not against the law to fail to report abuse.

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  10. The yeshivas and shuls do not even have to do the normally required background checks on their employees.

    This is part of the reason why they have become a virtual paradise for molesters.

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  11. JWB says:

    >This is part of the reason why
    >they have become a virtual
    >paradise for molesters.

    That and the continuing failure of our community to stand and do what is necessary to rid ourselves of evil. We must change.

    Excerpt
    Time To Bring Back The Communal Cold Shoulder
    By Rabbi Philip Lefkowitz
    Posted Dec 30 2009
    http://www.jewishpress.com/pageroute.do/41998/

    ...
    Today that type of communal behavior no longer is acceptable. Those who violate communal standards, even those who commit crimes - including violent crimes - are welcomed back into the community with open arms.

    When I served in the rabbinate in the UK, I witnessed this phenomenon taken to new heights or, more to the point, new depths. A primary school "rebbe," after serving time in prison for involvement with child pornography, returned home only to once again sit in his prized seat in the shul he had formerly attended. His fellow worshippers warmly welcomed him back into the fold.

    I believe there is a place in society for the communal cold shoulder. It sends a message that certain behaviors will not be tolerated by the community at large and will have consequences in the life of the perpetrator. Society is not required to embrace people's foibles and improprieties - and certainly not their unlawful deeds. One way it can express its distaste is by not interacting with an individual who has transgressed community standards or broken the law.
    ...

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  12. Re: Daas Torah said: "yeshivos not covered by mandatory reporting laws":

    With respect to which jurisdiction are you speaking? Because in many places *every citizen* has a duty to report. This US gov site provides a summary of reporting laws for all US states:
    http://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.processSearch

    It does appear that yeshiva settings would be included in some places. E.g., just glancing at the "A"s in the list of 50 states: Arizona has a clause covering: "Any other person who has responsibility for the care and treatment of minors." That would see to imply that if you teach gemara in an unregistered yeshiva in Arizona, and those minors are in your care for say 4 hours a week, so at first blush it would appear that you are indeed subject to mandatory reporting laws. No different than daycare workers etc. No? Maybe there's a lawyer or Children's Aid social worker out there who can help us with this?

    In the two jurisdictions I've worked in: Ontario and Israel, the laws apply to members of particular professions, except I learned that in Israel at least in a school, all staff are included. So in any event a social worker, school counselor, psychologist etc are all covered regardless of setting.

    I am not a lawyer and am not giving a legal opinion. I encourage each person to investigate their obligations where they live and work.

    Also: Even if you are not obligated to report does not mean that you can't or shouldn't.

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  13. I certainly agree, mandatory reporting laws do vary from state-to-state. There is also a widespread, inaccurate perception that religious schools are exempt. Depending upon the state, sometimes they are, sometimes they aren't.

    The penalty for noncompliance with the mandatory reporting laws also varies. In some states, nonreporting actually constitutes a criminal misdemeanor. In other states, nonreporting has civil consequences only.

    Criminal prosecution does happen once in a while. In Massachusetts, an exclusive private high school pled guilty to a misdemeanor, and paid a fine, for failing to report student-to-student sexual abuse. Currently, in Missouri, several Amish religious men were just criminally indicted for failure to comply with the mandated reporting laws there.

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