Friday, October 24, 2014

What if adult rape was a mandated reporting offense?

Mandated reporting laws vary among the US states, but this is a common situation: If a girl of 14 goes to a therapist and reports that some cousin (during a rare visit) sexually abused her, the therapist is required by law to report this to the authorities, who will conduct an investigation. The girl and her family will be interrogated at length. They are innocent parties, but they do not have the option of being left alone.

In contrast, if woman of 30 goes to a therapist and speaks of a rape that happened when she was 28, she is in control of the situation. The therapist would be committing a grave breach of professional ethics to tell police about this without the woman's permission.

There are arguments to be made for and against an adult victim deciding to make a report. If she reports it, she is likely to be subjected to intense questioning on a painful subject to determine if she is telling the truth. If there isn't a strong legal case, the rapist will remain at large and she will have gone through an unpleasant process for nothing. If she doesn't report it, she gets to maintain her privacy but perhaps feels some guilt that she is doing nothing to protect some other woman from her same fate. But a vital point is that the choice is hers. Her rape was against her will, but she at least retains the power to decide whom to reveal it to.

If the girl is underage, the rules are different. Society has a strong interest in stopping child sex abuse, but in its zeal it often inflicts another kind of abuse on the child. She is stripped of any choice. She cannot keep this matter private any more. She may have great difficulty obtaining an attorney who works for her interests alone. The younger a child, the greater the role parents should play. But parents do not have the option of huddling with their daughter and affirming her decision to keep the matter private either. Law enforcement decides whether to interrogate and investigate.

Sexual activity with anyone underage is a crime, but some young teens participate enthusiastically, some consent with ambivalence, and some are of course forced into sex. Any spot along this continuum is possible. A grown woman who knows she consented but regrets what happened can discuss this non-crime with a therapist at length. A minor has no such option. It is both a crime and a mandated reporting crime.

Many minors who understand these consequences and want to maintain their privacy have absolutely no one they can turn to -- no teacher or coach or therapist. Maybe they could get away with telling a priest if they are involved with a church, or if they are sophisticated enough, maybe they could tell a lawyer, though this is not a profession known for helping people resolve their feelings. If their parents are understanding, perhaps they could tell their parents. But parents may not be understanding, or they may be part of the family dynamic that allowed the abuse to happen in the first place.

Adult women would be justifiably outraged if they were denied the right to discuss rape with therapists in confidence. Why is it OK to deny this same right to minors?


6 comments:

  1. Interesting. I think the view of the general public is that kids aren't mature enough to decide not to report, and child molestation is so heinous a crime that we need to mandate reporting. I wonder if there's an intermediate approach. A better way of dealing with child victims that doesn't permit silence but still leads to prosecution?

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  2. An intermediate position would be establishing an age range (like 10 to age-of-consent) where the therapist is allowed to make a report without breaching professional ethics but is not required to. That way the therapist can use their own discretion. They may already be allowed to breach confidentiality for any minor child much more freely on any subject -- but presumably usually to parents. Are there really cases where a therapist needs a mandated reporter law to get them to make a report? I haven't studied the issue much.

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  3. I see what you're saying, but what happens if a child's parents are complicit in the abuse? What if they know what's going on and pressure the child into not pressing charges so as not to upset the family dynamic or whatever. There are countless stories of this happening without a therapist involved, so it only follows that this could still happen with a therapist involved.

    Mandated reporting isn't perfect for the reasons you've pointed out, but it's also (arguably) better for the victims than the alternative, which risks them being silenced by their families - possibly even by their abusers themselves.

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  4. Sometimes I'm sure you are right. Yet I have heard all too many reports from sex abuse survivors who say the abuse was bad, but when they told people about it, things got very much worse. Having a mother tell a child she is a horrible liar for making an accusation can be very damaging. Families where sexual abuse is going on often have other serious problems, and in intervening you don't want to just say "stop that horrible thing!" but have an alternative that looks like an improvement. I'd rather leave it to the clinicians, at the very least, to make a judgment call rather than threatening their career if they fail to report.

    Another adult parallel is ongoing spousal physical abuse. Horrible as it is, I don't think that should be a mandated reporting offense.

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    1. "Having a mother tell a child she is a horrible liar for making an accusation can be very damaging"

      See, and that's the thing Ethan. We must believe children, and mandatory reporting laws will force people to believe children.

      Being someone who was abused, though not sexually, I can say that I did not want to keep matters private. I luckily was believed by my guidance counselor, though it hurt that the system would never believe me.

      There must be reporting laws because children are easily conned into not reporting. They may, in their heart of hearts, want to report, but are being manipulated by an abusive adult into not reporting.

      Telling me to keep silent is an insult.

      Magnus

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    2. No one is suggesting telling kids to be silent. It is about allowing adults to keep a secret if the child wants them to. Yes, sometimes kids may be cowed into keeping silent. But if they are brave enough to mention it to a therapist, they should have the right to tell the therapist to keep it a secret.

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