An Administrator's Guide to California Private School Law

Chapter 11 – Mandated Reporting

Of course, reporting is also required where there is a reasonable suspicion that the sexual conduct between minors (regardless of age) involves coercion, violence, or a minor who lacks the cognitive ability to consent. Regarding sexual activity between a minor and adult, this will generally constitute reportable sexual abuse. Certainly, any sexual conduct between a minor student and a school employee must be reported. However, as minors become older teenagers (i.e. 16 or older), the law becomes less clear as to when and whether consensual sexual activity is reportable, and may depend on the relative ages of the individuals and the nature of the sexual activity. For example (excluding conduct by a school’s own employees which must be reported), consensual intercourse between a minor and an adult is mandatory reportable sexual abuse only if the minor is 15 or younger, and the adult is 21 or older. 1859 Of course, regardless of the relative ages of the minor and adult, a mandated report will be required if there is a reasonable suspicion that the sexual activity was nonconsensual. Indicators of non-consensual sexual activity include such things as any form of coercion (physical or mental), an abuse of power, and/or situations where the minor has impaired judgment due to a cognitive limitation, drugs or alcohol. Beyond that, the law is complex, and at times internally inconsistent, regarding consensual sexual activity between teenagers who are 16 or 17 years old and someone who is 18 or older. We recommend you contact legal counsel if faced with this situation. When, based on the above standards and criteria a school does have a reasonable suspicion of sexual abuse, in particular involving an employee, reporting to the local enforcement authorities may not be sufficient. The parents of the victim may also need to be notified. Doe v. Superior Court A Camp employee was observed engaging in questionable behavior with minors. The Camp investigated and determined that no inappropriate touching occurred, but terminated the employee anyway. The Camp did not notify the minor’s parents of the incidents. Years later, the incidents came out when the employee was being investigated for other allegations. The parents sued the Camp alleging, among other things, fraud in failing to inform them of the incidents. The Court of Appeal found the Camp had a special relationship to the minor and parents since the Camp acted as a day care provider. The Camp had a duty to exercise reasonable care to supervise the employee and a duty to exercise reasonable care to prevent harm to the minor. Once the Camp had knowledge of the employee’s inappropriate behavior, it had a duty to prevent further harm to the minor, which included an obligation to timely disclose the

suspected molestation to the parents. 1860 Conti v. Watchtower Bible & Tract Society

Church clergy were aware that a member of their congregation had a history of child abuse. The Church allowed him to participate in field service groups with Conti when her parents were not present and he molested her. The Court found that the Church had a duty to supervise the abuser’s participation in church activities to prevent a recurrent of abuse. The Church should have banned the abuser from field service or controlled his access to children by keeping an adult

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 418