Does a hospital licensing inspector who finds out from a chart that a 14-year-old was pregnant have to report it as child abuse?

Plain-English summary

The State Health Commissioner asked the AG a question that affected the inspection workflow at every Virginia-licensed hospital. The Virginia Department of Health (VDH) sends licensing inspectors (often nurses) into hospitals to review records and operations. Sometimes those inspectors come across the chart of a 14-year-old who is pregnant or received pregnancy-related services. Pregnancy in a 14-year-old necessarily means the underlying sex act violated § 18.2-63 (carnal knowledge of a child 13-15). Did the inspector, in her professional capacity, have to report this as suspected child abuse under § 63.2-1509?

The AG broke the answer into two pieces, but the headline was no, with one important condition.

The definition of "abused or neglected child" requires a parent or caretaker abuser. Section 63.2-1509 requires mandated reporters to call DSS or the abuse hotline whenever they have reason to suspect that a child is an "abused or neglected child." But that term is defined by § 63.2-100. Subsection (4) of the definition covers "[a]ny child less than 18 years of age ... [w]hose parents or other person responsible for his care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law." The plain text limits the definition to acts committed (or allowed) by a parent or caretaker, not by any third party. The Virginia Court of Appeals in Moore v. Brown (May 2014) had reached the same reading: § 63.2-100(4) "requires that the suspect be either a parent of the abused child or some other person responsible for his care." "Other person responsible" means an adult who "by law, social custom, express or implied acquiescence, collective consensus, agreement, or any other legally recognizable basis has an obligation to look after the well-being of a child left in his care."

So the chart of a pregnant 14-year-old, without more information, does not on its own trigger the mandatory report. If the chart shows a parent or caretaker committed or allowed the act (a father, stepfather, mother's boyfriend, school employee with authority), then there is reason to suspect "abuse or neglect" under § 63.2-100 and the report is required.

Two prior AG opinions overruled. The 2001 "Robertson Opinion" (issued to the Staunton Commonwealth's Attorney) and the 2003 "Marshall Opinion" (issued to Delegate Marshall) had reached the opposite conclusion: that the mandatory reporter must report any time a child is the victim of a sexual act in violation of § 18.2-63 or § 18.2-61, regardless of who committed it. Both opinions had relied on § 63.2-1508, which says nothing in that section "shall relieve any person specified in § 63.2-1509 from making reports required in that section, regardless of the identity of the person suspected to have caused such abuse or neglect."

The 2014 AG read § 63.2-1508 differently. Section 63.2-1508 governs what makes a report a "valid" report for DSS investigation. It requires that the alleged abuser be the child's parent or caretaker. The "regardless of identity" language at the end of § 63.2-1508 is best read as removing one specific obstacle (a reporter knowing the identity of the abuser is not required to make the report). It does not expand the substantive definition of "abused or neglected child" in § 63.2-100. To read it as expanding the definition produces an inharmonious result: § 63.2-1508 says DSS only investigates parent/caretaker cases, yet would also expand § 63.2-1509 to require reporting of cases DSS will not investigate. Applying Prillaman v. Commonwealth's in pari materia rule, the AG concluded the better reading keeps both sections aligned. The 2001 and 2003 opinions were "hereby overruled."

No separate duty to report to law enforcement. Virginia has no statute that requires VDH licensing inspectors to report crimes generally to law enforcement. So even if the chart shows a § 18.2-63 violation by someone outside the parent/caretaker category, the inspector has no statutory duty to call the police.

Currency note

This opinion was issued in 2014. 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.

The mandatory child abuse reporting statutes (§§ 63.2-100, 63.2-1508, 63.2-1509, 63.2-1500) have been amended multiple times since 2014. Mandated-reporter categories have expanded. The definition of "abused or neglected child" has been amended in particulars. Moore v. Brown's reading of "other person responsible" remains influential but has been reapplied and refined in later cases. Anyone applying this to a present-day situation should pull the current text and consult counsel; the structural rule (mandated reporting under § 63.2-1509 keys to whether the perpetrator is a parent or caretaker) is the durable point but the citation-level details require verification.

Common questions

Who is a mandated reporter under § 63.2-1509?
Health care professionals (including nurses), teachers, social workers, mental health professionals, law enforcement, and others listed in the statute. VDH inspectors who are licensed nurses are treated as acting in their nursing capacity when inspecting, so they are mandated reporters.

What is the consequence of failing to report?
Section 63.2-1509(D) (current version) imposes civil penalties on mandated reporters who fail to make required reports. Failure can also be considered in professional licensing proceedings.

What about reporting a § 18.2-63 violation by a non-caretaker?
The mandated-reporter statute does not require it (per this opinion). The reporter can still call law enforcement voluntarily, and depending on the facts may be ethically obligated to do so under professional standards. The opinion answered the legal-duty question, not the ethical-obligation question.

What if the chart shows pregnancy but doesn't identify the partner?
That fact alone, the AG concluded, is not enough to trigger mandatory reporting. The reporter would need information suggesting parent/caretaker involvement.

Are teachers in the same position?
Yes, under this opinion's framework. The Robertson Opinion (overruled) had specifically been about teachers. After 2014, teachers are also bound by the parent/caretaker-perpetrator limit on mandatory reporting under § 63.2-1509.

What if the patient told the hospital staff who the partner was?
That would change the analysis. If the staff has reason to know the perpetrator is a parent or caretaker, the report is required. If the staff knows the perpetrator is a third party (a same-age boyfriend, for example), the mandatory report under § 63.2-1509 is not required.

Does this apply to OB/GYN doctors and nurses providing the actual care?
Yes. The same § 63.2-1509 framework applies to all mandated reporters. A treating clinician who learns of a § 18.2-63 violation by a parent or caretaker must report; one who learns of a § 18.2-63 violation by someone outside the parent/caretaker category does not have a § 63.2-1509 reporting duty.

Does this affect minor consent rules for medical care?
The opinion does not address minor consent to medical care, which is governed by separate statutes (Title 54.1, Title 32.1 for various services). The mandatory-reporting analysis is distinct from the consent-to-treatment analysis.

Background and statutory framework

• Va. Code § 32.1-126: VDH hospital licensing authority and inspection program.
• Va. Code § 63.2-100: definitions for child welfare statutes, including "abused or neglected child" in subsection (4).
• Va. Code § 63.2-1500: declared policy supporting mandatory reporting.
• Va. Code § 63.2-1508: requirements for a valid report and DSS investigation duty; addressed to alleged parent/caretaker abusers.
• Va. Code § 63.2-1509: mandatory reporting statute for specified professionals.
• Va. Code § 18.2-63: carnal knowledge of a child 13 or older but under 15 (Class 4 felony).

The interpretive moves:
- The plain text of § 63.2-100(4) limits the "abused or neglected child" definition to parent/caretaker acts.
- Moore v. Brown (Va. Ct. App. 2014) confirmed this reading.
- § 63.2-1508's "regardless of identity" language addresses one logistical detail (knowing the abuser's name), not the substantive scope of "abuse or neglect."
- Reading § 63.2-1508 to expand § 63.2-1509 would produce an inharmonious result (reports required of cases DSS will not investigate).
- The 2001 Robertson and 2003 Marshall opinions are overruled.

Citations

• Va. Code § 32.1-126
• Va. Code § 63.2-100
• Va. Code § 63.2-1500
• Va. Code § 63.2-1508
• Va. Code § 63.2-1509
• Va. Code § 18.2-63
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Moore v. Brown, 2014 Va. App. LEXIS 181 (Va. Ct. App. May 20, 2014)
• 1977-78 Op. Va. Att'y Gen. 351
• 1989 Op. Va. Att'y Gen. 354
• 2001 Op. Va. Att'y Gen. 94 (overruled)
• 2003 Op. Va. Att'y Gen. 185 (overruled)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-021_Levine.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 12, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Marissa J. Levine, MD, MPH, FAAFP
State Health Commissioner
Virginia Department of Health
Post Office Box 2448
Richmond, Virginia 23218

Dear Commissioner Levine:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether a hospital licensing inspector who is a nurse is required to make a report of suspected child abuse or neglect under Virginia Code § 63.2-1509 upon reviewing the medical record of a fourteen-year-old girl who was pregnant and received services, such as prenatal or abortion services, at the hospital. You further ask whether a hospital licensing inspector is required to make a report to law enforcement given that it is a crime to have carnal knowledge of a child between the ages of thirteen and fifteen under Virginia Code § 18.2-63.

Response

It is my opinion that a Virginia Department of Health ("VDH") licensing inspector who is a nurse and who, during the course of a hospital inspection, learns from the review of a medical record that a fourteen-year-old girl received services related to her pregnancy is not required to make a report of child abuse and neglect pursuant to Virginia Code § 63.2-1509 unless there is reason to suspect that a parent or other person responsible for the child's care committed, or allowed to be committed, the unlawful sexual act upon the child. It is also my opinion that the VDH licensing inspector is not required to make a report to law enforcement of the crime of carnal knowledge of a child between the ages of thirteen and fifteen.

Background

You relate that VDH performs inspections of hospitals that it licenses pursuant to Virginia Code § 32.1-126 and that such inspections typically include a review of medical records of patients treated at the hospital that is the subject of the inspection. You also state that many of the VDH licensing inspectors are nurses licensed by the Board of Nursing and are considered to be acting within their professional nursing capacity when performing inspections of hospitals. As such, you relate that they are considered to be mandated reporters of suspected child abuse and neglect under Virginia Code § 63.2-1509.

Applicable Law and Discussion

Virginia Code § 63.2-1500 sets forth the general policy of the Commonwealth regarding the reporting of suspected child abuse and neglect. Specifically, § 63.2-1500 states:

The General Assembly declares that it is the policy of this Commonwealth to require reports of suspected child abuse and neglect for the purpose of identifying children who are being abused or neglected, of assuring that protective services will be made available to an abused or neglected child in order to protect such a child and his siblings and to prevent further abuse or neglect, and of preserving the family life of the parents and children, where possible, by enhancing parental capacity for adequate child care.[1]

This policy underscores the importance of the duty placed upon certain professionals to report suspected child abuse and neglect in accordance with Virginia law.

Virginia Code § 63.2-1509 requires "certain persons, who in their professional or official capacity, have reason to suspect that a child is an abused or neglected child" to report the matter immediately to the local department of social services or to the toll-free child abuse and neglect hotline of the Department of Social Services.[2] Nurses employed in the nursing profession are mandated reporters under the statute.[3] Because the nurses employed as VDH licensing inspectors are considered to be acting within their professional nursing capacities when performing hospital inspections, they must comply with § 63.2-1509 and make a report to DSS if they suspect that a child is an "abused or neglected child."

An "abused or neglected child" is defined as "any child less than 18 years of age ... [w]hose parents or other person responsible for his care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law ...."[4] Virginia Code § 18.2-63 provides that "if any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony."[5] Clearly, with respect to a fourteen-year-old who is pregnant, a sexual act upon a child was committed in violation of § 18.2-63. This fact alone, without additional information or evidence, is not sufficient to create a reason to suspect that the child is an "abused or neglected child" within the meaning of § 63.2-100. Under the statutory definition of an "abused or neglected child," there must also be some evidence or information that the unlawful sexual act was committed or allowed to be committed by the child's parents or other person responsible for the child's care.[6] Thus, whether or not a VDH licensing inspector who is a nurse has a duty to report under § 63.2-1509 would depend on what information the inspector obtained during the course of the inspection.

In an official Opinion to Delegate Robert G. Marshall issued in 2003 (the "Marshall Opinion"), this Office determined that medical personnel have a duty under § 63.2-1509 (mandatory reporting of child abuse) to report statutory rape when a child victim reveals such incidence to them in conversation.[7] In contrast, you state that VDH licensing inspectors obtain information solely from their reviews of medical records and do not have any interaction or engagement with the patients treated by the facility that is the subject of the inspection. If the only information in the medical record reviewed by a VDH licensing inspector is that a hospital treated a pregnant fourteen-year-old, without any information as to how the child became pregnant, and there is no other basis upon which the licensing inspector could have reason to suspect that the child's parents or other person responsible for the care of the child committed or allowed to be committed the sexual act, then there is no duty to report under § 63.2-1509. On the other hand, if the medical record showed, for example, that the child's father committed the sexual act, then the VDH nurse licensing inspector is required to make a report in accordance with § 63.2-1509. The mere knowledge that a child between thirteen and fifteen is or was pregnant is, without more evidence, insufficient to trigger the reporting responsibility of § 63.2-1509.

A 2001 official opinion of this Office issued to Staunton Commonwealth's Attorney Raymond Robertson (the "Robertson Opinion") concluded that teachers who learn that a sexual act was committed upon a child that would constitute a violation of § 18.2-63 had a duty to report under then-Virginia Code § 63.1-248.3 (recodified in 2002 to § 63.2-1509), regardless of whether the teacher had reason to suspect that the child's parents, or other person responsible for the care of the child, committed or allowed to be committed, the sexual act.[8] This opinion relied on then-Virginia Code § 63.1-248.2 (now recodified at § 63.2-1508), which states: "Nothing in this section shall relieve any person specified in § 63.1-248.3 from making reports required in that section, regardless of the identity of the person suspected to have caused such abuse or neglect." This language was enacted by the General Assembly in 1990, presumably in response to a 1989 Opinion of this Office determining that the responsibility of the local department of social services in child abuse and neglect matters is limited to the investigation of alleged acts committed by a parent or other person responsible for the care of a child.[9]

The Robertson Opinion concluded that the General Assembly's 1990 amendment of § 63.1-248.2 (now § 63.2-1508), after the issuance of the 1989 Opinion indicated a legislative intent that the definition of "abused or neglected child" not be limited to acts committed by a parent or other person responsible for his care.[10] The Marshall Opinion followed this same line of reasoning and concluded that medical personnel who learn that a sexual act was committed upon a child that would constitute a violation of § 18.2-61 or § 18.2-63 have a duty to report under § 63.2-1509, regardless of whether the medical personnel had reason to suspect that the child's parent, or other person responsible for his care, committed or allowed to be committed, the sexual act.[11] Both Opinions, however, are inconsistent with long-standing rules of statutory construction and interpretation.

Section 63.2-1508 specifies what constitutes a valid report of child abuse or neglect that requires the local department of social services to conduct an investigation.[12] One required element is that the alleged abuser is the alleged victim child's parent or other caretaker. This is consistent with the definition of "abused or neglected child" contained in § 63.2-100.[13] Section 63.2-1508 ends by stating that nothing in the section shall relieve a person obligated to report suspected child abuse or neglect from making a report required by § 63.2-1509, regardless of the identity of the abuser.

"The general rule is that statutes may be considered as in pari materia when they relate to ... the same subject .... Statutes that have the same general or common purpose or are parts of the same general plan are also ordinarily considered as in pari materia."[14] In Prillaman v. Commonwealth, the Supreme Court of Virginia stated that:

"Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system, or a single and complete statutory arrangement. Such statutes are considered as if they constituted but one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can reasonably be done. Indeed, as a general rule, where legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, and they should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in the absence of words specifically indicating the contrary, that the legislature did not intend to innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act."[15]

Section 63.2-1508 states that its terms do not relieve a person obligated to report child abuse or neglect from making a report as required by § 63.2-1509 regardless of the identity of the alleged abuser.[16] Section 63.2-1509 only requires reports when there is a reason to suspect that a child is an "abused or neglected child."[17] By statutory definition, "an abused or neglected child" is one who has been subject to a sexual act in violation of the law that was committed or allowed to be committed by the child's parent or other person responsible for his care.[18] To construe § 63.2-1508 as expanding the reporting requirements of § 63.2-1509, thereby expanding the definition of "an abused or neglected child," results in an inharmonious interpretation in which both statutes could not stand.[19] Such an interpretation is even more absurd given that § 63.2-1508 only requires the local department of social services to investigate reports where the alleged abuser is a parent or other person responsible for the child's care.[20] To the extent that the referenced official opinions issued in 2001 and 2003 (the Robertson Opinion and the Marshall Opinion) require reporting of suspected child abuse or neglect regardless of whether the alleged abuser is a parent or other person responsible for the child's care, they contradict longstanding rules of statutory construction and are hereby overruled.

You next ask whether a VDH licensing inspector who reviews the medical record of a pregnant fourteen-year-old is required to make a report to law enforcement in the absence of a duty to report under § 63.2-1509. There is no law that requires a VDH licensing inspector to report a crime discovered during the inspection of a hospital.

Conclusion

Accordingly, it is my opinion that a VDH licensing inspector who is a nurse and who, during the course of a hospital inspection, learns from the review of a medical record that a fourteen-year-old girl received services related to her pregnancy is not required to make a report of child abuse and neglect pursuant to Virginia Code § 63.2-1509 unless there is reason to suspect that a parent or other person responsible for the child's care committed, or allowed to be committed, the unlawful sexual act upon the child. It is also my opinion that the VDH licensing inspector is not required to make a report to law enforcement of the crime of carnal knowledge of a child between the ages of thirteen and fifteen.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] 2002 Va. Acts ch. 747, at 1108, 1197 (quoting § 63.2-1500, not set out in Virginia Code).

[2] VA. CODE ANN. § 63.2-1509 (Supp. 2014).

[3] Id.

[4] Section 63.2-100 (Supp. 2014).

[5] VA. CODE ANN. § 18.2-63 (2014).

[6] See § 63.2-100(4). See also Moore v. Brown, 2014 Va. App. LEXIS 181 (Va. Ct. App. May 20, 2014) (finding that § 63.2-100(4) requires that the suspect be either a parent of the abused child or some other person responsible for his care). In Moore, the Virginia Court of Appeals also interpreted "other person responsible for his care" to mean an adult who "by law, social custom, express or implied acquiescence, collective consensus, agreement, or any other legally recognizable basis has an obligation to look after the well-being of a child left in his care. Simply being an adult residing in the same home as a child does not make one responsible for every child in the home." Moore, 2014 Va. App. LEXIS 181, at *8.

[7] 2003 Op. Va. Att'y Gen. 185, 187.

[8] 2001 Op. Va. Att'y Gen. 94.

[9] 1989 Op. Va. Att'y Gen. 354, 356.

[10] 2001 Op. Va. Att'y Gen. at 96.

[11] 2003 Op. Va. Att'y Gen. at 188.

[12] Section 63.2-1508 (2012).

[13] Section 63.2-100.

[14] Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957) (quoting 50 Am. Jur., Statutes, § 349, at 345-47).

[15] Id.

[16] Section 63.2-1508 (emphasis added).

[17] Section 63.2-1509.

[18] Section 63.2-100 (emphasis added).

[19] See also 1977-78 Op. Va. Att'y Gen. 351, 353 (concluding that where two statutes are in apparent conflict, they should be construed, if reasonably possible, in such manner that both may stand together).

[20] Section 63.2-1508.