Spring 2018: Volume 74, Number 1
By Stephen Feldman, J.D. Ph.D. Legal Consult
AT LAST, AN ANSWER….
….to the question: what happens when an old friend rushes up to you, and blurts out an admission that he has sexually abused the little girl next door?
Since you are a mandated reporter of child sexual abuse, do you have to report him to CPS? Or, to put it another way, since he is not your client, and you are not in your professional role, are you, nevertheless, still obligated to make the report?
The Washington State Supreme Court on April 19, 2018 answered the question in the negative: you do not have to report it.
The case is The State of Washington v. Tanya Desiree James-Buhl. In that case, Ms. James-Buhl, a teacher and a mandated reporter, was charged with failing to comply with the statute (RCW 26.44.030(1)(a)) that requires certain listed professionals to report child abuse when they have reasonable cause to believe that a child has suffered abuse or neglect.
The facts were these: Ms. James-Buhl lived with her three daughters and their stepfather. Her daughters were not her students, nor had they ever been. One of the daughters told her pastor that their stepfather had sexually abused her, and the pastor referred the matter to CPS.
In the course of the investigation, it was discovered that all three daughters had told their mother about the abuse as early as January 2015. The state then charged Ms. James-Buhl with three counts of failure to comply with the mandatory reporting law.
The court stated the question as follows: Does the statute apply to teachers when their own children, who are not their students, report abuse by another family member perpetrated within the home? (Note we are not talking about the part of the statute dealing with a case of “severe abuse” (RCW 26.44.030(1)(d)) which requires a report by any adult who has reasonable cause to believe that a child who resides with them has suffered severe abuse).
It answered the question as follows: “The reporting duty for professionals named in the statute…creates a legally enforceable duty to report child abuse when there is some connection between the individual’s professional identity and the criminal offense.” It continued, “The plain language of (subsection (a) of the statute) does not create an unlimited and unqualified duty to report child abuse because the statute refers to people by means of their occupation, not simply adults or persons.” That is the difference between subsection (a), which lists occupations, and subsection (d), which refers to any adult in the residence in the case of a “severe” abuse.
The court further stated, “James-Buhl was not required to make a mandatory report in this case because she did not have a teacher/professional relationship with her daughters.”
It seems we can now rest assured that when we are not in our professional roles we are relieved of our mandatory reporting duties. That is the final holding of the case, and it is consistent with a statement in our Ethics Code, which says, in the Introduction and Applicability section, “The Ethics Code applies only to psychologists’ activities that are part of their scientific, educational, or professional roles as psychologists.” (Emphasis added.)
It is nice to know that at last our state law and our APA Ethics Code both agree that when we are off duty, we can take off our professional hat and be relieved of this particular responsibility.
It might be possible to raise questions about what might happen when a friend says to you, “Say Doc, I have this problem. Can I talk to you for a minute about it?” And then he blurts out how he has been sexual with a girl of 15 years of age.
Is he talking to you in your professional role? Has he creating a sufficient doctor-patient relationship to reestablish the mandatory reporting requirement because in saying, “Hey, Doc…” he has invoked your professionally licensed role? I’m afraid the James-Buhl case doesn’t give us a perfectly clear answer to that situation. But it might be wise to respond with, “Before you say anything let’s be clear that we are just talking as friends, and not in a treatment capacity. You are not consulting me in my professional role.”
In truth, I doubt that a case would turn on the phrase, “Hey Doc…” as a sufficient basis to bring about a different result from the James-Buhl case, but just to be sure it might be best to disavow your professional status before you allow your friend to unburden himself.
If you have any questions about this case, you may call Steve Feldman, JD, Ph.D, directly at 206-621-7007, or ask for one of his colleagues at Feldman Law Consultants. They are Fran Schopick, MSW, JD, Rich Brothers, JD, or Eric Dickman, JD.