An Administrator's Guide to California Private School Law

Chapter 11 – Mandated Reporting

section 311.2, which includes the exchange with a minor of a photo of a minor engaging in sexual conduct such as the “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” 1862 Therefore, arguably, where minor teenagers engage in consensual sexting, they are nonetheless in violation of section 311.2. Further, if one student has such a picture of another student who is under 18, and shares the picture with student third parties, a reportable violation has likely occurred. This is true even where the sender and third- parties are all also minors. Some schools are reluctant to report sexting behavior when it is consensual between two or more students. We suggest that where a school is faced with apparent consensual “sexting” between teenagers, that you either make the report, or consult with your legal counsel. Schools may also consult with Child Protective Services to ask if a situation is reportable. We also note that it is unclear whether Child Protective Services or other law enforcement agency will take such a report, and this may vary by region. In contrast, a school should certainly report where minors have had their picture sent to anyone without their consent. Additionally, as these scenarios suggest, it is critical to educate young people and their parents about how the law may not have caught up with technology and society in this area, and they are engaging in risky behavior by sexting. Once an image has been sent out, the subject loses all control over how that image is spread and seen. Whether a school should report to parents suspected sexual abuse by a non-employee is more complex. At least one case suggests that a school has a responsibility to do so. However, care should be taken where disclosure could put the child at additional risk at home. Phyllis P. v. Claremont Unified School District A 13-year old student sexually assaulted an eight-year-old. The District did not initially notify the victim’s parents. The Court determined that the District had a duty to notify the parents because of a “special relationship.” The Court held that the District stood in loco parentis (in place of the parents) and as such owed a duty of care both to the child and the parent. 3. R ED F LAGS : S EXUAL A BUSE As with physical abuse, an actual report by or of a child suffering from sexual abuse may trigger reasonable suspicion and the duty to report. Some physical red flags to consider are pregnancy (which, in and of itself is not reasonable suspicion, but must be considered in context with the age of the child), 1863 sexually transmitted diseases, or complaints of pain, swelling or itching in the genital area. These examples are offered as red flags that may be observed in the course and scope of a mandated reporter’s job duties as a result of a child’s verbal complaint of discomfort.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 420