Viewpoint: Why a Mandatory Child Abuse Reporting Law Could Backfire

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Should all adults be legally required to report child abuse if they see or suspect it? Senator Bob Casey (D-Pa.) has introduced a bill to require just that, in the wake of the apparent cover-up following an eyewitness account of the rape of a 10-year-old by former Penn State defensive coordinator Jerry Sandusky. On Tuesday, a Senate hearing was held on the issue.

Introducing witnesses at the hearing, Senator Barbara Mikulski (D-Md.) noted that abused children are “doubly victimized” both by the abuse and by the “conspiracy of silence” that often follows. “My view is that every adult has the responsibility for a child. It takes a village to raise a child and it takes a village to protect one,” she said.

In the aftermath of horrific crimes like those of which Sandusky is accused, it is natural to want to take decisive action to prevent them from happening again. However, criminalizing the failure to report abuse may cause more problems than it prevents.

Eighteen states already legally require anyone who witnesses or suspects child abuse to report it, but those states do not appear to be safer for children than states without such requirements. Further, they may increase the chance of false accounts of child abuse: Examinations to check for sexual abuse are intrusive, and even a seemingly mild tactic, such as repeated questioning, can sometimes produce false allegations from young children who haven’t been abused. The ensuing investigation can then traumatize children, or worse, place them needlessly in foster care.

MORE: How Child Maltreatment May Scar the Brain

The Casey bill would require all adults to report child abuse by parents and caregivers and also “any deliberate act, on the part of an individual other than a parent or caretaker that results in death, serious physical or emotional harm, or sexual abuse or exploitation, or an act or failure to act that presents an imminent risk of serious harm.”

This language concerns many leading child advocates, including Dr. Bruce Perry, who has worked with severely abused and neglected children for decades. In 2007, Perry led the institutional response to accounts of sexual abuse of students at Oprah Winfrey’s school for girls in South Africa. (Full disclosure: Perry and I have co-authored two books.)

“I think that people in any position of responsibility or authority with children should be mandatory reporters, including coaches affiliated with educational settings, teachers, medical professionals, etc.,” Perry says, but extending that requirement to all adults poses problems.

To start, there’s the tricky issue of defining “serious emotional harm”: as Perry notes, some people consider yelling to be emotional abuse. Further, this type of mandate would be very “vulnerable to vendetta,” he says. Anyone who wanted to stir up trouble could report abuse, which would then have to be investigated. That would tax the already limited time and resources of child welfare authorities, which are facing cuts and are so overburdened that they can’t thoroughly investigate many of the most clear-cut cases of abuse already before them.

MORE: Why Are So Many Foster Care Children Taking Antipsychotics?

Richard Wexler, executive director of the National Coalition for Child Protection Reform, notes on his website that even trained mandatory reporters often call in “patently absurd” cases for fear of being punished for failing to report.

He cites a Florida case in which an assistant principal called in social workers in December to investigate a “possible sex crime” — a playground incident in which a 12-year-old girl kissed a 12-year-old boy she had a crush on.

To prevent such problematic lapses in judgment, many states require mandated reporters to be trained in properly identifying child abuse. Obviously, however, such a requirement is unlikely to be imposed on all adults.

Enforcement of a mandated reporting law would also be likely to target the poor and minority groups unfairly. Poor parents are already more likely to be scrutinized by authorities: for example, they are often drug-tested without their permission when they give birth. A positive test for marijuana can spur a child abuse investigation.

I share the public’s fury over the events that allegedly occurred at Penn State. I’ve seen the profound damage that can be done by sexual abuse. I don’t want any child to experience it — let alone have their cries go unheard or their claims covered up.

But laws passed when people are panicked or furious typically do more harm than good (check out the history of our drug laws for hundreds of examples of this). Getting people to do the right thing requires consideration, transparency and a deep understanding of the issue — not just passing laws to “do something.”

MORE: Bystander Psychology: Why Some Witnesses to Crime Do Nothing

Maia Szalavitz is a health writer at TIME.com. Find her on Twitter at @maiasz. You can also continue the discussion on TIME Healthland’s Facebook page and on Twitter at @TIMEHealthland.

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