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Recently the Needs of Children Committee of the Young Lawyers Division worked with the Child Abuse Prevention Center of Utah to update their informational pamphlets. These pamphlets
describe the legal definition of child abuse, how to spot possible abuse, and when and how to report suspected abuse. The pamphlets, one produced for the general public and three others
produced for educators, child care providers and clergy, may be obtained from the Child Abuse Prevention Center of Utah's Salt Lake City office.
As our committee was researching
and updating the abuse reporting statutes, our eyes were opened to the dilemma Utah's stringent reporting requirements may create for practitioners as confidants and advisors to our
clients. This article will first describe Utah's child abuse reporting requirements, exceptions to that requirement and the criminal sanctions for failure to report actual or suspected
abuse. We will then address the ethical issues presented by the reporting requirements followed by a detailed discussion of how to detect possible child abuse. It is our hope that this
article will inform the legal community and aid it in the prevention of future and ongoing child abuse, without compromising the ethical standards of attorneys.
The Abuse Reporting Statute
Utah Code subsection 62A-4a-403 addresses child abuse reporting requirements. With one very narrow exception, any person, including medical professionals, who
"has reason to believe that a child has been subjected to or who observes a child being subjected to incest, molestation, sexual exploitation, sexual abuse, physical abuse, or
neglect or who observes a child being subjected to conditions or circumstances which would reasonably result in sexual abuse, physical abuse, or neglect shall immediately notify the
nearest peace office, law enforcement agency, or [the Division of Child and Family Services]."1
Any person, official or agency required to report a case of suspected child abuse, including suspected fetal alcohol syndrome or fetal drug dependency, who willfully fails to do so is
guilty of a class B misdemeanor.2 A criminal action for failure to report must be commenced within four years from the date of knowledge of the offense and the willful failure to report.
Good faith reports of abuse will remain confidential and the investigating agencies must ensure the anonymity of the person or persons making the report.3 Also, any person making a report of abuse is immune from any liability, civil or criminal, that may otherwise result from reporting abuse information.4 It is significant to note, however, that to remain immune from liability, the report must be made to a law enforcement officer or investigating agency listed above.5
The only exception to the reporting requirement is for clergypersons or priests acting only under certain circumstances.6 To be exempt from the Abuse Reporting Statute, the priest or clergyperson must learn of the abuse through a confession. This confession must be made to the priest or clergyperson within his or her professional capacity and in the course of discipline enjoined by his or her church. Further, this confession must be made to the priest or clergyperson by the perpetrator. Abuse learned of from someone other than the perpetrator must be reported. To be exempt from the reporting requirement, the confession made to the priest or clergyperson must also be of the sort that must be maintained confidential pursuant to canon law or church doctrine.7
The Ethical Dilemma
Pursuant to Rule 1.6(a) of the Utah Rules of Professional Conduct, "A lawyer shall not reveal information relating to representation of a
clientÉunless the client consents after consultation."
How does the legal practitioner go about dealing with the dilemma of having to reconcile his or her ethical
responsibilities under Rule 1.6(a) and his or her legal duties under the Abuse Reporting Statute? In going about this dilemma, there is recourse one can take. In due course, Rule 1.6(a)
goes on to list exceptions in which an attorney can reveal information without violating a duty of confidentiality. That is to say, Rule 1.6(b) states, "A lawyer may reveal such
information to the extent the lawyer believes necessary: (1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or
substantial bodily harm, or substantial injury to the financial interest or property of another; (2) To rectify the consequences of a client's criminal or fraudulent act in the commission
of which the lawyer's services had been used; (3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a
criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or (4) To comply with the Rules of Professional Conduct or other law."
An attorney can fulfill his or her legal obligation under the Abuse Reporting Statute without violating Rule 1.6(a) of the Professional Rules of Conduct by applying either exceptions
(b)(1) or (b)(4) of Rule 1.6(b). To be sure, if in the course of representing a client, an attorney discovers that he or she reasonably believes in good faith that a child may be abuse,
he or she can report this to prevent the client from committing a criminal act that the attorney believes is likely to result in the death or substantial bodily harm of another.
Alternatively, Rule 1.6(b) allows the legal practitioner to comply with the law, or specifically, to comply and act as necessary pursuant to the Abuse Reporting Statute.
Summarily,
Rule 1.6 permits an attorney to report suspected child abuse while the Abuse Reporting Statute requires an attorney to report this suspected child abuse. Accordingly, how should an
attorney go about his or her legal practice to most effectively maintain the ethical integrity of the professional and legal obligations without compromising client representation? A good
rule of thumb is for an attorney to disclose to a client at the onset of the attorney-client relationship that due to legal and ethical obligations, he or she may not be able to keep all
information confidential. That is to say, the attorney should explain to the client the Abuse Reporting Statute as it applies to the attorney and also the consequences to those found to
be in violation of the statute. "A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law."8 "A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation."9 "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client's situation."10 Furthermore, if the case is to proceed to the trial stage, "A lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client."11
Lastly, if there is still a scintilla of doubt as to whether there is a conflict between Rule 1.6(a) and the Abuse Reporting Statute, one should always comply with the
statute before the ethical rules.
Potential Signs of Child Abuse
Both for purposes of preventing child abuse and in order to fulfill their statutory duty to report
suspected abuse, it is imperative that attorneys be able to recognize the signs of possible child abuse.
While it seems that recognizing child abuse should merely be a matter of
exercising one's common sense, experts on the subject now say that individuals involved in child abuse do not necessarily behave the way in which the layperson might expect. For instance,
children who are being abused do not necessarily, or even usually, run to the nearest adult to report the abuse. In fact, in situations when the person abusing the child is a parent or
other authority figure, the child often shies away from reporting the abuse or even actively lies on behalf of his or her abuser to protect him or her. This is because the child
experiences conflicting emotions as he or she loves the parent or other abuser, is dependent upon him or her for survival, and does not wish to see the adult get into trouble, leaving the
child helpless.
The reluctance with which some victims report child abuse demonstrates the difference between how the common sense of the layperson predicts a child abuse victim
will behave and reality. An abused child might naturally be distrustful of adults, as the person abusing him or her is likely an adult. The child also might feel a great deal of shame
about suffering abuse and not wish to draw attention to a situation because he or she incorrectly perceives the abuse as resulting from his or her fault. Experts now tell us that abusive
persons wield enormous psychological power over their victims, often in measures far greater than the physical harm which they inflict. In fact, some abuse of children or other
individuals does not involve physical or sexual abuse but psychological or emotional abuse where, by threats, intimidation, isolation or lack of attention, the victim is made to feel that
he or she is worthless, no good, or cannot survive or even perform the smallest task without the "help" of the abuser.
Child abuse is perpetrated by members of every
racial, religious and socio-economic group. Both men and women abuse children. One cannot ignore the possibility that a client or other person is a child abuser merely because he or she
is a well-to-do woman, or comes from a background which the attorney does not consider to be at-risk for child abuse. Instead, in predicting child abuse, experts find that persons who
live with certain stressors are more likely than others to commit child abuse. These stressors include death of a loved one, poor health, loss of a job or relationship, and financial
difficulty.
The four main kinds of child abuse are physical, sexual, psychological or emotional, and neglect. Psychological or emotional abuse may exist alone or in combination
with other forms of abuse. Neglect may be physical, emotional, or both. Physical or emotional neglect also may exist alone or in combination with other forms of abuse. The specific
definitions of abuse vary according to whether one consults statutes or mental or other health professional standards. Traditionally, medical standards for defining child abuse have been
broader and more encompassing than the legal standards have been. However, the stringency of the Abuse Reporting Statute demonstrates the increasing seriousness with which the law
considers child abuse. It should be noted that both the medical and legal definitions for child abuse are somewhat controversial as both professions define child abuse in terms which
render forms of corporal punishment, which had previously found acceptance, unacceptable child abuse.
Physical abuse includes inflicting almost any physical harm to a child.
Prohibited behaviors include, but are not limited to, torturing, beating, hitting, slapping, kicking, biting, burning, scalding, cutting, pushing, shoving and intentionally making a child
ill. Sexual abuse includes any sexual contact between a child and another person. Prohibited behaviors include, but are not limited to, rape; sodomy; aggravated sexual assault; sexual
assault; touching the private parts of a child with any part of the body or with any object; forcing or encouraging a child to touch the other's private parts with any part of his or her
body or with any object; forcing or encouraging a child to touch his or her own private parts with any part of his or her body or with any object; and forcing or encouraging a child to
watch one touch his or her own private parts with any body part or with any object. Emotional or psychological abuse is by its nature more amorphous and difficult to define. This kind of
abuse is often defined as a pattern of unacceptable behaviors which tend to harm the psychological or emotional well being of a child. Unacceptable behaviors include, but are not limited
to, shouting, yelling, screaming, insulting, belittling, demeaning, manipulating, or limiting contact with the outside world. Neglect is depriving a child of basic care which is necessary
to his or her physical or emotional well being. Neglect includes, but is not limited to, the following behaviors: leaving a child alone longer than is safe or appropriate for someone of
his or her age; not feeding a child enough; leaving a child exposed to dangers such as unlocked guns, drugs, dangerous chemicals or toilets overflowing with feces; using illegal drugs in
front of the child or allowing someone else to do so; not keeping a child clean of feces or urine or otherwise safely clean; not keeping a child adequately clothed; depriving a child of
basic medical care; not allowing the child to attend school; and ignoring the child.
In order to recognize child abuse, we must learn what the signs of abuse are. We begin with
physical symptoms, which are most obvious to the eye but whose importance, though great, is perhaps overstated in light of the fact that a child who is physically abused often bears no
marks of physical trauma which are observable when the child wears street clothing. Broken bones, cuts, scars, bruises, bruises in the shape of on object, burn marks, burn marks in the
shape of an object, and being sick all of the time with various maladies, such as when a parent intentionally over salts food, are all potential signs of abuse. Of course, like anyone
else, children may injure themselves in the normal course of their lives. However, it raises a red flag with experts when children have repeated injuries or injuries for which neither
they nor their parents have good explanation or of which their parents attempt to minimize the importance.
Experts detect emotional or psychological abuse of a child mostly by
observing his or her behavior and by asking questions of the child. Children who are abused physically or sexually are also often abused psychologically, so these behaviors are also seen
in victims of sexual and other physical abuse. Depression, anxiety, withdrawal, isolation, excessive sleepiness, boredom, misbehavior or conversely, agitation, hyperactivity, an overly
great need for attention or need to please may all indicate that a child is suffering from abuse.
Child sexual abuse is one of the more difficult forms of child abuse to detect
because of the intense secrecy which surrounds this type of abuse and the shame which the victims are made to feel. For the attorney or other layperson coming into casual contact with a
child who might be a victim, sexual abuse is even more difficult to diagnose. It is obvious that any physical signs of sexual abuse would probably be covered up by the street clothing of
the child. Therefore, the attorney or layperson might begin to suspect that a child is being sexually abused by his or her exhibiting a pattern of questionable behavior, such as is
described in the above paragraph about psychological or emotional abuse. In addition, some victims of sexual abuse display some or all of the following behaviors: needing to go to the
bathroom too much; an overly great interest in sex than is appropriate for their age; an overly great knowledge about sex than is appropriate for their age; and conversely, an overly
great amount of modesty than is usually observed in children of their age. Disconcertingly, many victims of child sexual abuse exhibit none of the above behaviors so that detection of
their plight is often delayed for months or years. Boys and girls are equally at risk of being victims of sexual abuse.
Another under-reported forms of child abuse is physical
neglect. This type of abuse is under-reported because its detection is often dependent upon observing the condition of the home in which the child lives, to which most attorneys or other
layperson probably would not have access. This is further complicated because laypersons generally are unqualified to decipher such problems as whether a child is simply skinny or whether
he or she is malnourished due to neglect. In addition to appearing malnourished, the neglected child might appear unkempt or have insufficient clothing. Or he or she might be chronically
truant or left home alone for a period of time which is longer than is appropriate for his or her age. He or she might exhibit any of the questionable behaviors listed in the above
paragraph about psychological or emotional abuse.
Since the signs of child abuse are many and diverse, how does the busy attorney or any layperson go about spotting potential
abuse? Awareness about the various physical and behavioral symptoms of child abuse and vigilance in paying attention for them are our best hope to stop child abuse and to fulfill our
statutory duty to report this problem.
Footnotes
1. See, 62A-4a-403(1).
2. See, ¤62A-4a-411.
3. See, 62A-4a-412(3).
4. See, 62A-4a-410
5. In Allen v. Ortiz, 802 P.2 1307 (Utah 1990), the Court held that a report of suspected abuse must be made to those persons or agencies listed in the reporting statute remain immune.
6. See, 62A-4a-403(2).
7. See, id.
8. Rule 1.2(c), Rules of Professional Conduct.
9. Rule 1.4(b), Rules of Professional Conduct.
10. Rule 2.1, Rules of Professional Conduct.
11. Rule 3.3, Rules of Professional Conduct.
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