Did Maine's mandatory reporting law require professionals to report all underage sexual activity that could constitute a crime, even consensual conduct between near-age minors with no sign of harm?
Subject
Whether Maine's mandatory reporting law, 22 M.R.S.A. § 4011-A, required mandated reporters to report sexual conduct by minors that could fit the definition of a crime, even where the reporter had no reason to suspect a threat to a child's health or welfare.
Currency note
This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Plain-English summary
Maine's mandatory reporting law required listed professionals (healthcare providers, teachers, law enforcement, clergy, and many others) to report suspected child abuse and neglect to the Department of Health and Human Services, and in some cases to the local district attorney. DHHS Commissioner Brenda Harvey asked whether that obligation extended to all underage sexual conduct that could fit the definition of a crime under Maine's Criminal Code, including consensual conduct between minors close in age. Chief Deputy Attorney General Linda M. Pistner concluded it did not.
The law turned on the phrase "abuse and neglect," defined in 22 M.R.S.A. § 4002(1) as "a threat to a child's health or welfare" by, among other things, "sexual abuse or exploitation." The opinion read that definition as putting the threat-of-harm element at the heart of the reporting obligation. A mandated reporter who became aware of conduct that fit the technical definition of a sex crime but who had no reasonable cause to suspect harm to the child was not, on the AG's reading, legally required to file a report.
The opinion stayed deliberately narrow. It addressed cases where (1) no coercion or violence was involved, (2) no mental disability or appreciable power differential existed between partners, (3) both partners were minors at least twelve years old, and (4) the age difference was less than three years. Outside those parameters (including age differences greater than three years, coercion, or any indication of harm), the analysis would be different and a report would more clearly be required.
Three out-of-state authorities did most of the analytical work. In Aid For Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), a federal district court held that Kansas's similar reporting law did not require reporting all illegal underage sexual activity in the absence of suspected injury. The California Court of Appeals had reached the same conclusion in Planned Parenthood Affiliates of California v. Van De Kamp, 226 Cal. Rptr. 361 (1986). The Connecticut Attorney General had reached the same result in a 2002 opinion. The AG concluded a Maine court would likely line up with those authorities.
The opinion also flagged the practical problem with a different reading. Most mandated reporters are not lawyers and are not equipped to identify the precise scope of Maine's many sex crime statutes. Tying reporting duty to the technical edge of criminal liability would put non-lawyer professionals in an impossible position, and exposing them to a civil violation under 22 M.R.S.A. § 4009 if they got the criminal-law analysis wrong was not what the Legislature intended.
Finally, the opinion connected the reading to Maine's medical-emancipation statutes (22 M.R.S.A. §§ 1503, 1597-A, 1823, 1711-C(12), and others), which let minors consent to and keep confidential treatment for sexually transmitted infections, contraception, and abortion. A reporting law that forced disclosure of any sexual activity by a minor would conflict with the Legislature's separate decision to give minors confidential access to those services.
Common questions
Q: Did the AG say no underage sexual activity ever has to be reported?
No. The opinion said the opposite is also true: in the vast majority of cases, sexual conduct by an adult or with a much older partner against a younger child is plainly a threat to the child's health and welfare and must be reported. The opinion was narrow. It addressed the edge case of consensual conduct between near-age minors with no other warning signs.
Q: What was the legal test the AG settled on?
The mandated reporter has to make a judgment, on the totality of the circumstances and using their professional expertise where applicable, whether there is "reasonable cause to suspect" that the child has been or is likely to be abused or neglected, meaning a threat to the child's health or welfare. If there is, a report is required. If there is not, a report is not legally compelled, even if the underlying conduct fits a sex-crime definition.
Q: Did the opinion change the rule for other kinds of suspected child abuse?
No. The opinion was about a specific interpretive question regarding sexual conduct between near-age minors. The general framework of the mandatory reporting law (reasonable-cause-to-suspect a threat to health or welfare, plus the criminal-civil-violation backstop in § 4009) remained as the statute had set it.
Q: Did the opinion say the Department of Health and Human Services must investigate every report?
No. Whether DHHS opens a child-protection investigation in response to any given report was treated as part of the Department's enforcement discretion. The opinion said DHHS was not required to open an investigation merely because the reported conduct could constitute a crime. Each report had to be evaluated against the standard of whether a child has been or is likely to be abused or neglected.
Background and statutory framework
Maine first enacted a mandatory reporting law in 1965, focused on physician-observed abuse by parents or caretakers. The law was rewritten in 1975 as emergency legislation to keep Maine eligible for federal child-protection funding under what became the Child Abuse Prevention and Treatment Act (CAPTA), and again in 1979 with the recodification of the child protection laws. In 1985, the Legislature reintroduced a reporting-to-district-attorney requirement, parallel to reporting to DHHS, that became 22 M.R.S.A. § 4011-A(2).
The current law (as of 2008) required twenty-nine categories of mandated reporters to report to the Department when they had reasonable cause to suspect that a child had been or was likely to be abused or neglected. Reports to district attorneys were required when the suspected abuse was by a person not responsible for the child. A "knowing failure" to report was a civil violation subject to up to a $500 forfeiture under 22 M.R.S.A. § 4009.
CAPTA sets the federal floor. To remain eligible for CAPTA funds, Maine's statutory definitions of abuse and neglect have to be "the same in substance" as the federal definitions. CAPTA's regulatory definition of "sexual abuse" expressly includes activities "under circumstances which indicate that the child's health or welfare is harmed or threatened with harm." That harm-or-threat anchor reinforces the reading the AG gave to the Maine statute.
Citations
Statutes (Maine):
- 22 M.R.S.A. § 4002 (definitions, abuse and neglect)
- 22 M.R.S.A. § 4009 (penalty for knowing failure to report)
- 22 M.R.S.A. § 4011-A (mandatory reporting)
- 22 M.R.S.A. § 4014 (immunity for good-faith reports)
- 17-A M.R.S.A. § 251 (sexual act, defined)
- 17-A M.R.S.A. § 253 (gross sexual assault)
- 17-A M.R.S.A. § 254 (sexual abuse of minors)
- 17-A M.R.S.A. § 255-A (unlawful sexual contact)
- 22 M.R.S.A. § 1503 (minor consent to medical services)
- 22 M.R.S.A. § 1597-A (minor consent to abortion)
- 22 M.R.S.A. § 1711-C(12) (minor control of medical records when minor consented to care)
Federal:
- 42 U.S.C. § 5106g(2) (CAPTA, definition of child abuse and neglect)
- 45 C.F.R. § 1340.2(d)(1) (CAPTA regulations, sexual abuse)
Cases:
- Aid For Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), Kansas law not read to require reporting absent suspected injury
- Planned Parenthood Affiliates of California v. Van De Kamp, 226 Cal. Rptr. 361 (1986), California law same conclusion; constitutional privacy concern
- State v. Hurd, 400 N.W.2d 42 (Wis. Ct. App. 1986), "reasonable cause to suspect" not unconstitutionally vague
- State v. Edward C., 531 A.2d 672 (Me. 1987): plain-meaning rule for criminal statutes
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2008/ag_20080315.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
G. STEVEN ROWE
ATTORNEY GENERAL
March 15, 2008
Commissioner Brenda Harvey
Department of Health and Human Services
221 State Street
11 State House Station
Augusta, ME 04333-0011
Dear Commissioner Harvey:
By letter dated November 1, 2007, you have requested an opinion concerning the interpretation of 22 M.R.S.A. § 4011-A, referred to generally (and herein) as the mandatory reporting law. Specifically, you ask whether the obligation imposed by that statute to report abuse and neglect to the Department of Health and Human Services ("Department") should be read "to include all defined crimes of sexual act or contact involving children under age 14, so as to require the Department both to report such cases to the District Attorneys and to require the Department to accept such cases for our own child welfare investigations?"
SUMMARY OF CONCLUSIONS
This is a complex issue, but also a narrow and specific one. The effective operation of the mandatory reporting law and the prosecution of sex crimes perpetrated against children are critical tools for the protection of children. The mandatory reporting law clearly requires the reporting to the Department of "abuse and neglect," which is defined to mean "a threat to a child's health or welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these … by a person responsible for the child." 22 M.R.S.A. § 4002(1). The mandatory reporting law also requires mandatory reporters to report to the appropriate district attorney instances of abuse and neglect, as defined above, when committed by a person who is not responsible for a child; the district attorney has discretion to prosecute in appropriate cases. The behaviors that must be reported under this statute include conduct that may also constitute a crime under the Maine Criminal Code and which may be a juvenile crime under the Maine Juvenile Code.
We have found no Maine case addressing the question that you have posed. The courts in other jurisdictions that have ruled on this issue have carefully limited the scope of their opinions to very precise parameters. We adopt this same approach, in order to avoid an overbroad interpretation of our conclusions that might operate to undermine the proper reporting of child abuse and neglect to the Department and to the district attorneys. As a result, references to sexual conduct by minors in this opinion mean activities where: 1) no coercion or violence was involved; 2) no mental disability or other appreciable power differential existed between partners; and 3) the parties are both minors who are at least twelve and the age difference between them is less than three years. It is also important to note that we are addressing the question of whether the mandatory reporting law requires a report to be made, as distinguished from whether it permits one. The law encourages reporting by providing that a mandated reporter is immune from liability for making a report in good faith. 22 M.R.S.A. § 4014.
The narrow legal question we address in this opinion is whether a mandated reporter is required to report sexual conduct by a minor that may constitute a crime involving a sexual act or contact even where the mandated reporter does not know or have reason to suspect that the conduct presents a threat to a child's health or welfare. Critical to our analysis is the fact that a knowing failure to comply with the mandatory reporting law is subject to prosecution for a civil violation. 22 M.R.S.A. § 4009. Because the mandatory reporting law does not clearly put reporters on notice that they must report to the district attorney actions by a person not responsible for a child solely because those actions may constitute a crime, we do not believe it likely that a court would reach the conclusion that failure to make such a report under these narrow circumstances constitutes a knowing failure and therefore a civil violation.
The mandatory reporting law is ambiguous in its application to this specific issue. However, we believe that a court construing its language would conclude that a mandated reporter is not legally required to make a report unless the reporter has reasonable cause to suspect a threat to a child's health or welfare. In many cases, sexual conduct by minors may satisfy this standard, and reports should be made in those situations. A report to the Department may also be appropriate in these cases if the reporter has reasonable cause to suspect that a person responsible for the child has failed to protect the child from abuse and neglect. However, if a mandated reporter reasonably concludes, based on the totality of the circumstances and exercising the reporter's professional expertise where applicable, that sexual conduct between minors does not threaten the health or welfare of the children involved, we do not believe that a court would conclude that a report is legally required.
This question is not addressed in the Department's rules or policies, or in the explanatory materials it provides concerning the mandatory reporting law. Based on our discussions with your staff and our review of your statutes, rules and policies, we have not found any guidance on the Department's view of same or near age sexual activities by minors. It is our opinion, in responding to your second question, that whether the Department opens an investigation in any given matter is within the Department's enforcement discretion. Since we have concluded that there is no clear requirement that all behaviors that may constitute crimes fall within the abuse and neglect definition under the Act, we do not believe that you are compelled to open an investigation solely because such behaviors may be crimes. As with any other report, the Department must use its judgment to determine whether a child has been or is likely to be abused or neglected.
The Department may wish to clarify its rules and policies on mandatory reports to address how same or near age sexual activities will be addressed in its enforcement of the child protection laws. In addition, the Legislature may wish to consider clarifying the mandatory reporting law on the issue of the reporting of activities that may constitute crimes. Legal issues discussed in the analysis that follows may be relevant to a statutory clarification, such as the interface of the mandatory reporting law with existing statutes providing minors with certain rights to reproductive health services without parental notification. There are, of course, a number of policy issues that are relevant to this question, as to which we express no opinion herein.
Before beginning our legal analysis of the questions you have asked, we set out the relevant child protection and criminal law provisions that inform our discussion.
BACKGROUND
I. The Mandatory Reporting Law
Your questions focus on the provisions that require reporting of suspected cases of child abuse and neglect. Title 22, M.R.S.A., § 4011-A(1) requires twenty-nine specific categories of adult individuals to "immediately report or cause a report to be made to the department when the person knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected …."
Persons required to report (collectively referred to as "mandated reporters") include (among others) the following when acting in a professional capacity: a variety of health care providers (physicians, nurses, dentists, mental health professionals, etc.), school personnel (teachers, guidance counselors, school officials), law enforcement personnel, and clergy. Department employees who are social workers are mandated reporters. 22 M.R.S.A. § 4011-A(15). Persons with full, intermittent or occasional responsibility for the care or custody of a child, and persons who serve in an administrative capacity or position of trust in a church or religious institution, are also mandated reporters. 22 M.R.S.A. § 4011-A(1)(B)&(C).
Mandated reporters are also required to report to the district attorney's office, as follows:
- Required report to district attorney. When, while acting in a professional capacity, any person required to report under this section knows or has reasonable cause to suspect that a child has been abused or neglected by a person not responsible for the child, the person immediately shall report or cause a report to be made to the appropriate district attorney's office.
22 M.R.S.A. § 4011-A(2).
There are two differences between these two reporting requirements: 1) Reports to the district attorneys are required only where the abuse or neglect is perpetrated by a person not responsible for the child; and 2) reports to the district attorneys are required only where a mandated reporter knows or has reason to suspect that a child has been abused or neglected, while reports to the Department are required when there is reasonable cause to suspect that a child has been or is likely to be abused or neglected. A knowing failure to make a report required under either provision is a civil violation for which a forfeiture of not more than $500 may be adjudged under the general penalty provision of the Act. 22 M.R.S.A. § 4009.
II. Criminal Sex Offenses
Before looking at the question of whether all criminal sexual offenses are required to be reported, we offer the following information about the relevant criminal statutes to provide context. The term "abuse and neglect" as used in the mandatory reporting law is defined to include "a threat to a child's health or welfare by … sexual abuse and exploitation …." 22 M.R.S.A. § 4002(1). "Sexual abuse and exploitation" could potentially include all the crimes in Chapters 11 (Sexual Assaults) and 12 (Sexual Exploitation of Minors) of the Maine Criminal Code, Title 17-A. Certain other Criminal Code sections could also fall within these general terms, such as § 556 (incest), § 852(1)(B) (aggravated promotion of prostitution) and § 855 (patronizing prostitution of a minor).
If the person engaging in the proscribed conduct is also a minor, certain of these crimes either have no application or only limited application because the age of the actor is made an element of the crime. In some instances the actor must be an adult. See e.g., § 254 (sexual abuse of minors), § 256 (visual sexual aggression against a child), § 258 (sexual misconduct with a child under 14), and § 556 (incest) as examples where the actor must be an adult. In other instances the minor must be of a certain age. See § 255-A(1)(E)-(F-1) (certain unlawful sexual contact crimes; actor must be at least 3 years older than child under 14 in the case of (E) & (F) or under 12 in the case of (E-1) and (F-1)); § 259 (solicitation of a child by computer to commit a prohibited act; actor must be at least 16 or 3 years older than expressed age of the other person); § 260(1)(C) (certain unlawful sexual touching crimes; actor must be at least 5 years older than child under 14) as examples where a crime has only limited application.
By limiting the offense to situations where the actor is a specified number of years older than the minor other person, these statutes avoid criminalizing certain sexual behaviors between age or near age mates. For a few crimes, the age of the actor is not so limited. See, e.g., § 253(1)(B) & (C) (certain gross sexual assault crimes); §§ 282-284 (sexual exploitation of a minor, dissemination of sexually explicit material, and possession of sexually explicit material); and § 855 (patronizing prostitution of a minor).
In those situations where the age of the actor is not an element of the crime or the age element of the actor is satisfied, the minor actor is not automatically subject to prosecution under the Criminal Code. Under 17-A M.R.S.A. § 10-A(1), these minor actors are subject to adjudication under the Maine Juvenile Code. See 15 M.R.S.A. § 3103(1)(A). Only if bound over pursuant to 15 M.R.S.A. § 3101(4) is a juvenile subject to being prosecuted as an adult for these crimes. See 17-A M.R.S.A. § 10-A(1).
Your letter makes specific reference to the crime of gross sexual assault. The governing statute makes criminal a number of behaviors involving a "sexual act." Relevant to this inquiry is the prohibition against engaging in a sexual act with another person, not the actor's spouse, who has not in fact attained the age of 14 years. 17-A M.R.S.A. § 253(1)(B). Maine's Law Court has held that it is not a defense to gross sexual assault that the defendant was under the age of 14. State v. Edward C., 531 A.2d 672 (Me. 1987); State v. Danny A., 536 A.2d 1136, 1136 (Me. 1988).
DISCUSSION
I. The Language of the Mandatory Reporting Law
Our legal analysis begins with the language of the mandatory reporting statute, and the definition of the term "abuse and neglect" as incorporated into that statute. In determining the meaning of a statute, a court must look first to its plain language. Connolly v. Connolly, 2006 ME 17, ¶ 6, 892 A.2d 465. A court examines the plain meaning of the language in the statute, seeking to give effect to legislative intent. Guardianship of Zachary Z., 677 A.2d 550, 552 (Me. 1996). "Unless the statute reveals a contrary intent, the words 'must be given their plain, common and ordinary meaning.'" State v. Edward C., 531 A.2d at 673.
A. "Abuse and neglect." Key to determining when a report is required to either the Department or the district attorney is an understanding of what constitutes "abuse or neglect." The phrase "abuse or neglect" is not defined in the reporting statute itself. However, it is defined for purposes of the Child and Family Services and Child Protection Act, 22 M.R.S.A. §§ 4001-4099-C ("the Act"), of which the mandatory reporting law is a part.
"Abuse or neglect" means a threat to a child's health or welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these or failure to ensure compliance with school attendance requirements under Title 20-A, section 3272, subsection 2, paragraph B or section 5051-A, subsection 1, paragraph C, by a person responsible for the child.
22 M.R.S.A. § 4002(1).
The definition of abuse and neglect in § 4002(1) is expressly made applicable to actions of "a person responsible for the child." This raises a question as to how this definition informs the determination of which cases are required to be reported to the district attorneys under subsection 2 of the mandatory reporting law, which is limited to actions of any person not responsible for the child. The introductory language of § 4002 (the definitions section for the Act as a whole) states that its definitions apply to terms "[a]s used in this chapter, unless the context indicates otherwise …." Certainly the express terms of subsection 2, "by a person not responsible for the child," supersede that part of the abuse and neglect definition that specifies actions by persons who are responsible for a child. However, the remainder of the definition is not inconsistent with the requirements of subsection 2, nor does subsection 2 contain any language specifying different criteria for those situations that must be reported to the district attorney.
The definition of abuse and neglect focuses on "a threat to a child's health or welfare" from one or more of the harms listed, including sexual abuse or exploitation. In the vast majority of cases, conduct that falls within the definition of a crime that can be characterized as sexual abuse or exploitation where the victim is a child will also be a threat to a child's health or welfare, and there will be no ambiguity concerning the need to report. A more difficult interpretive issue arises, however, if the reporter is aware of conduct that falls within the scope of a crime but does not give the reporter reason to suspect that there is a threat to the health or welfare of a child.
Under one possible interpretation of the mandatory reporting law, if the reporter becomes aware of conduct by a person not responsible for a child that fits the definition of a crime, that conduct should be reported to the appropriate district attorney solely because it is a crime. A district attorney's office has authority to prosecute crimes and juvenile offenses, as well as certain specific types of civil violations. 30-A M.R.S.A. §§ 282 & 283. It might therefore be inferred from the fact that some reports are directed to the district attorneys, that what is to be reported is behavior that the reporter has reason to suspect is abuse or neglect that is a crime. If one accepts the inference that the nature of mandated reports to district attorneys is determined by the primary function of those offices, i.e., the prosecution of crimes, there is still a significant ambiguity in the reporting requirement: whether behavior that might constitute a crime is sufficient to trigger the requirement, or whether the behavior that constitutes the crime must also constitute a threat to a child's health and welfare. Under this reading of the mandatory reporting law, the required threat to the health or welfare of a child is either irrelevant or presumed from the fact that the behavior in question is a crime.
If the law is read to limit reporting to the district attorneys to possible crimes, the only part of the definition of "abuse and neglect" that is given effect is the phrase "sexual abuse and exploitation." While a bright line may be convenient, this interpretation of the mandatory reporting law is inconsistent with the general rules of statutory construction, both by reading words (e.g., "constituting a crime") into and reading other words (e.g., "threat to health and welfare") out of the language enacted by the Legislature. Moreover, such an interpretation results in different definitions of abuse and neglect for reports to the district attorneys and those made to the Department, in the absence of any language in the definition of abuse and neglect signaling the difference. Depending on such an inference as the basis for compelling a report, when failure to make the report is a civil violation subject to penalty, does not give clear guidance to mandated reporters of the scope of their duty.
Moreover, a significant practical problem results if mandatory reporters are required to infer an obligation to report sexual conduct that may constitute a crime. With the exception of law enforcement officials, mandatory reporters are generally not going to be lawyers or trained in the criminal law. These lay persons are unlikely to be familiar with the many sex crimes in Maine law (described above in Background, Section II). Under a more workable interpretation of the reporting to district attorneys, if reports are based on a threat to a child's health and welfare, the district attorneys can review them for possible crimes, whether sex crimes or other criminal offenses.
Maine's mandatory reporting law does not define reportable events with reference to provisions in the Maine Criminal Code. Neither does the definition of "abuse and neglect," which is central to the interpretation of the mandatory reporting statute, contain such a reference. There is, therefore, no clear notice to reporters that they are expected to report crimes, and which ones. Several state statutes do expressly define reportable behaviors to include those that constitute crimes. Examples are: North Dakota, N.D. Cent. Code §§ 50-25.1-02 & 50-25.1-03 (2007); Wyoming, Wyo. Stat. Ann. §§ 14-3-202(a)(ii) & 14-3-205 (2007); and California and Kansas, whose statutes are cited in the cases discussed below.
We have found no Maine case addressing the interpretation of the mandatory reporting law or its application to underage sexual activities. However, in Aid For Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), a federal district court concluded that the Kansas mandated reporting statute should not be read to require the reporting of behaviors that may constitute crimes in the absence of possible harm to the children involved. The Kansas mandatory reporting statute in effect at that time, K.S.A. § 38-1522, contained language parallel to that of Maine's statute and required reporting whenever (inter alia) the reporter had "reason to suspect that a child has been injured as a result of … sexual abuse." K.S.A. § 38-1522(a). However, Kansas law further defined "sexual abuse" as "any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated." K.S.A. § 38-1502(c). Chapter 21 contains the Kansas penal code, which criminalizes a range of sexual activities with children under the age of 16 years. "Based on the very language of the provisions, sexual activity of minors younger than sixteen is illegal, regardless of whether the activity is voluntary or the sexual activity involves an age-mate." Aid for Women at 1098.
The Kansas Attorney General issued an opinion that concluded that the state mandated reporting statute required the reporting of all incidents of sexual activity involving persons younger than 16 years old, including consensual sexual activity between near-age partners. The U.S. District Court for Kansas found, after a testimonial trial, that the mandated reporting statute did not make all underage sexual activity inherently injurious and required healthcare professionals and others who had an obligation to report, to report only if they had reason to suspect injury that resulted from illegal sexual activity.
If "injury" is the equivalent of "sexual abuse" as the Attorney General contends, then the requirement of an "injury" in the reporting statute is rendered meaningless. The statutory language does not require reporting of all illegal sexual activity of minors; it requires reporting of such sexual activity if there is "reason to suspect injury." Therefore, the statute requires reporting of illegal sexual activity that causes injury, not all illegal sexual activity.
Id. at 1102 (citations omitted).
In 2002 the Connecticut Attorney General issued an opinion in which he reached a similar result. 2002 Conn. AG Lexis 33. Conn. Gen. Stats. § 17a-101a provides: "Any reporter … who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years … has been abused or neglected, as defined in section 46b-120(4), … shall report or cause a report to be made …." Conn. Gen. Stats. § 46b-120 defines abuse as: "in a condition which is the result of maltreatment such as, but not limited to … sexual molestation or exploitation." The Attorney General noted that the statute did not further define "sexual molestation or exploitation." The Attorney General further noted that neither the mandatory reporting law nor the definition of abuse and neglect makes reference to Conn. Gen. Stats. § 53a-71, which establishes the crime commonly referred to as statutory rape.
Had the legislature intended the definition of "abused" for purposes of the reporting statute to include the definition of statutory rape under the criminal statutes, it could have said so explicitly. Indeed, it would have been expected to say so specifically, as a matter of statutory construction.
The California Court of Appeals in Planned Parenthood Affiliates of California v. Van De Kamp, Attorney General, 181 Cal. App. 3d 245, 226 Cal. Rptr. 361 (1986), held that implementation of the Attorney General's opinion that required the reporting of all sexual activity of minors under 14 years of age would have resulted in the reporting of voluntary behavior, a result both inconsistent with the intent of the Legislature and in violation of the California Constitution's privacy guarantees.
We must decide whether the law requires a professional, who has no knowledge or suspicion of actual abuse, to nevertheless report a minor as a child abuse victim solely because the minor is under the age of 14 and has indicated that he or she engages in voluntary, consensual, sexual activity with another minor of similar age. We hold the reporting law imposes no such requirement.
226 Cal. Rptr. at 363.
B. "Reasonable cause to suspect." Under the terms of § 4011-A(1)&(2), the obligation to report arises when a mandated reporter "knows or has reasonable cause to suspect" that a child has been or (under subsection 1) is likely to be abused or neglected. This "reasonable cause" standard is not further defined in the law, and we have found no case construing it in the context of the issue we address in this opinion. However, this same language in the Wisconsin mandatory reporting law was upheld when challenged for vagueness, and its meaning discussed as follows:
[The statute]'s use of the phrase "reasonable cause to suspect" fairly notifies a person of ordinary intelligence that if there is a reasonable basis to suspect that child abuse has occurred, that person must make a report to the appropriate agency. Whether a person possesses a reasonable suspicion that child abuse has occurred is not subject to misunderstanding. This requirement examines the totality of the facts and circumstances actually known to, and as viewed from the standpoint of, that person … Thus, the test becomes whether a prudent person would have had reasonable cause to suspect child abuse if presented with the same totality of circumstances as that acquired and viewed by the defendant. Under this statute, conviction is only permitted when, under the totality of the circumstances presented to the defendant, a prudent person would have had reasonable cause to suspect child abuse.
State v. Hurd, 400 N.W.2d 42, 45-46 (Wis. Ct. App. 1986) (citations omitted), cited with approval in State v. Denis L.R., 699 N.W.2d 154, 164 (Wis. 2005).
This language in Maine's mandatory reporting law reflects the relevance of all the circumstances in making the judgment of whether abuse or neglect has occurred or is likely to occur. Licensed health care professionals who must report may also be required by their licensing authorities to utilize their expertise and apply standards of care within their respective professions in making this judgment. For these reasons, the most logical interpretation of "reason to suspect" yields a flexible standard that takes into account the totality of the circumstances, including the expertise of the observer.
II. The Department's Decision to Open an Investigation
Finally, you have also asked whether you are required to open a child protection investigation in the event that you receive a report that indicates that a minor may be engaging in sexual conduct with a same or similar age partner that falls within the definition of a crime but as to which there is no indication that the health or welfare of a minor is threatened. As Commissioner, you have the primary jurisdiction to interpret the statutes you administer. York Mut. Ins. Co. v. Superintendent of Ins., 485 A.2d 239 (Me. 1984). Additionally, you have the responsibility for enforcing the child protection laws within the Department's budget for this program, requiring the allocation of these resources in the manner you find most effective.
For these reasons, we believe that reports of underage sexual conduct that may be crimes should be treated the same as any other report in deciding whether to open an investigation. For example, investigation of such a report may be appropriate to determine whether a parent is protecting a child from abuse. However, we do not believe that a court would conclude that you are not automatically required to open an investigation in these matters solely because the conduct may constitute a crime.
Sincerely,
Linda M. Pistner
Chief Deputy Attorney General