Right or Wrong
by Kathryn S. Krase, Ph.D., J.D., MSW
When deciding whether to make a report, or not, mandated reporters often wonder, “What if I’m wrong?” “Can I be sued?” “Can I lose my license?”
After a mandated reporter logs his/her suspicions with child protective services (CPS), CPS conducts an investigation. At the end of that investigation, CPS makes a determination whether to substantiate the allegations. If the report is substantiated, there is nothing for the reporter to be worried about, because CPS confirmed the reported suspicions. If the report is unsubstantiated, there are no repercussions to the reporter, as long as the report meets certain basic requirements—thanks to legal protection in the form of immunity. This article will outline immunity and how a reporter secures its benefits.
Where Does Immunity Come From?
In 1974, the United States Congress passed the Child Abuse Prevention and Treatment Act of 1974 (CAPTA), and President Richard Nixon signed it into law. This sweeping legislation required all states to add provisions to their laws that protect reporters from legal retaliation for making a report. This legal protection is called immunity. Without immunity, a reporter could be sued if the report was not substantiated after investigation. Immunity provisions were included in the law to encourage reports to be made, even when the reporter is unsure of whether abuse or neglect has occurred (Kalichman, 1999).
How Do You Know If You’re Covered by Immunity?
In most states, reporters are protected by immunity as long as the report was made in “good faith.” Making a report in good faith means that the reporter believed that the information she or he was providing to CPS was true, to the best of his or her knowledge. The reporter does not have to be sure that the information is true. The reporter should not investigate his/her suspicions before making the report. As long as the reporter believes that the child in question may be the victim of abuse or neglect, a resulting report will be considered made in good faith.
In a few states, including California, the mandated reporter benefits from absolute immunity. (See Child Welfare Information Gateway at https://www.childwelfare.gov/ for specific information about your state.) Absolute immunity means that the mandated reporter is protected from legal retaliation regardless of whether or not the report is made in good faith. In these states, however, absolute immunity is not provided for non-mandated reporters.
So I’m Covered by Immunity. What Does That Mean?
Unfortunately, legal immunity does not mean that the mandated reporter cannot or will not be sued for making the report, although such lawsuits are very rare. However, mandated reporters will successfully defend themselves by asserting immunity. In some states, such as California, there are provisions in which mandated reporters can be reimbursed for expenses made to defend themselves in such suits.
To assert the legal defense of immunity, the report must have been made in good faith. In more than 15 states (and the District of Columbia), there is a “presumption of good faith” for reports made by all persons, not just mandated reporters. This means that the person suing the reporter has to show that the report was not made in good faith. This is a difficult burden to meet. A presumption is a legal advantage for the reporter. The reporter does not have to defend him/herself unless the accuser has convinced the court the report was not made in good faith. In that case, the reporter will then have the opportunity to provide evidence to support him/herself.
Reporters are protected by immunity as long as they made the report in good faith. However, related behaviors outside the reporting of the suspected child abuse or neglect are not protected through immunity. For example, if a reporter makes a report to CPS, and then writes about the case on Facebook or Twitter (which in itself brings up ethical concerns regarding confidentiality), and the allegations are found to be untrue, the reporter may be liable for any damage to the person’s reputation caused.
What If I Was Wrong… On Purpose? (False Reports)
You are protected from legal repercussions when making a report in good faith. However, reporters who make reports in “bad faith” can be punished. The law provides civil and/or criminal liability for knowingly filing a false report. The reporter must have “willfully” or “intentionally” made a false report of child abuse or neglect to CPS. This means that the reporter knew that the report was false or knew that it was likely that the report was false.
Cases of false reporting by mandated reporters are few and far between. False reports are more often experienced in non-mandated reports. Disgruntled neighbors and ex-lovers might make a report to CPS seeking to disrupt and intentionally injure a family. A reporter who makes a false report is subject to criminal and civil action.
False reporting is usually classified as a low level misdemeanor, which is a crime. In some states, filing a false child abuse report is a higher-level crime—a felony. People who make false reports can be subject to fines ranging from $100 to $5,000 or sentences from 90 days to five years in jail or prison. Reporters who are found to have filed multiple false reports may be subject to even harsher penalties (See Child Welfare Information Gateway for information on your particular state).
Besides criminal penalties for making a false report, reporters can also be subject to civil liability in the form of compensatory and/or punitive damages. Compensatory damages are meant to pay for any actual losses the family incurs as a result of the false report. Losses are not limited to the financial kind, but the damage award will generally be in the form of money. Compensatory damages can include damage to reputation, disruption caused by the investigative process, and even assault and battery for unwarranted physical examinations of children in response to a false report (Lau, Krase, & Morse, 2009). In addition to compensatory damages, punitive damages may be awarded for a false report. Punitive damages “punish” bad behavior, and usually involve a large monetary award, above and beyond the actual damages caused by the report.
Child Abuse Prevention and Treatment Act, Public Law 93-247.
Kalichman, S. C. (1999). Mandated reporting of suspected child abuse: Ethics, law & policy. Washington: American Psychological Association.
Lau, K., Krase, K., & Morse, R. H. (2009). Mandated reporting of child abuse and neglect: A practical guide for social workers. New York: Springer.
Child Welfare Information Gateway (http://www.childwelfare.gov)
A service of the Children’s Bureau, Administration on Children and Families, United States Department of Health and Human Services. The Child Welfare Information Gateway connects child welfare and related professionals to information and resources to help protect children and strengthen families.
Kathryn S. Krase, Ph.D., J.D., MSW, is an assistant professor of social work at Long Island University in Brooklyn, NY. She earned her Ph.D. in social work, her Juris Doctor, and her Master of Social Work from Fordham University. She has written and presented extensively on mandated reporting of suspected child abuse and neglect. She previously served as Associate Director of Fordham University’s Interdisciplinary Center for Family and Child, as well as Clinical Social Work Supervisor for the Family Defense Clinic at New York University Law School.