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Therefore, health care, educational and other facilities should not impose policies requiring blanket reporting of all sexually active or pregnant teens to the Statewide Central Register because a determination of reasonable suspicion of child abuse should be made on a case by case basis depending on the specific circumstances of a situation. How does a health provider's duty of confidentiality affect the reporting obligation?
Most health care providers are prohibited from disclosing information about a patient learned in their professional capacity without the patient's permission, unless otherwise required by law.25 Providers who disclose such information without patient authorization or other legal permission commit professional misconduct and can be sued, fined, and have their licenses revoked.26 However, as discussed above, one of the legal exceptions to this duty of confidentiality is the requirement to report information to the Statewide Central Register when that information is the basis for a reasonable suspicion of child abuse or neglect.
The phrasing of the child abuse reporting law has confused some mandatory reporters about their duty to file a report in cases where the parent is aware of a minor's voluntary sexual activity.
Under the child abuse reporting law, caregivers who allow a sexual offense to be committed against a child may be considered abusive or neglectful.
In , the court concluded that a parent must know that his or her teen is engaging in sexual activity in order to consider a charge of child abuse or neglect.16 In that case, an appellate court affirmed the lower court's dismissal of charges against the parents of a 13-year-old girl whose boyfriend was 23, because no evidence had been presented to suggest the parents knew of the sexual relationship.
Additionally, recent guidance from OCFS further affirms that "no report will be registered by the Statewide Central Register where the caller fails to provide a reasonable cause to suspect that a parent was aware of sexual activity or should have reasonably been aware of the activity, absent other indications of child abuse or maltreatment."17 Situation #2: The parent or caregiver is aware of his or her teen's sexual activity.
Situation #1: The parent is unaware of his or her child's sexual activity.
OCFS further clarifies two points: (a) the mere reoccurrence of the sexual activity "does not in and of itself," mean that the parent's response is inappropriate or that a report is required and (b) a parent's support of or involvement in the teen's accessing sexual or reproductive health care services may be a reasonable response, and therefore does not by itself give to a reasonable suspicion of child abuse or neglect. A mandated reporter or young person who faces a specific legal problem should consult with an attorney. The word "allow" means that a child's parent or caregiver knew or "should have known about" abuse to the child by a third party and "did nothing to prevent or stop it."6 To determine whether abuse or neglect has occurred, New York courts require a showing that a parent or guardian failed to exercise a minimum degree of care and therefore generally consider "whether a reasonable and prudent parent would have so acted (or failed to act) under [the] circumstances" that existed at the time.7 2. Mandatory reporters are health and educational professionals who are legally required to report suspected cases of child abuse or neglect to the Statewide Central Register when they have a reasonable suspicion that a child whom they see in their professional capacity is an abused or neglected child.8 Mandatory reporters are: A provision added in 2007 now requires the mandated reporter to personally report suspected child abuse to the Statewide Central Register and inform the director of his or her agency or institution. 2d at 221 (finding no statutory duty to report an instance of abuse against a child committed by someone who could not be the subject of a report when there is no showing that the mother was incapable or unwilling to protect the child from further potential abuse); , 171 A. 1991) (finding that daughter was an abused child because her mother was unwilling or unable to protect her from being sexually abused by her older brother). This is a change from previous law, which called for a medical staff member to first report to a designated agent for the agency or institution, who then was responsible for making the report.10 3. Act § 1012 at 314 (1999) ("‘Allowing' a child to be abused includes taking no appropriate protective (or preventive) action after being warned of the danger to a child"). , a state appellate court affirmed a lower court's decision noting that a 15-year-old with a sexually transmitted infection could not be presumed to be the victim of child abuse because the minor's age indicated that he could have been engaged in "consensual sexual activity." 589 N. New York Office of Children and Family Services, Administrative Directive, 07-OCFS-ADM-15 (Dec. The information that is provided to the social service worker should be accepted at face value, and should be reported to the State Central Register so long as it would constitute child abuse assuming it were true. Because New York law provides that persons 16 years old and younger generally do not have the capacity to consent to sexual activity, anyone under the age of seventeen who engages in vaginal, anal or oral sex is the victim of at least the misdemeanor crime of sexual misconduct, and may be the victim of a felony sexual crime depending on the age of his or her partner.