Will there be a rush of 13-year-olds getting gender reassignment surgery without parental consent as a result of this law No. But this is another step Democrats are taking to redefine gender. And, in time, teenage gender reassignment surgeries could become more frequent.
Age of consent laws began in England during the Middle Ages. Once girls turned 12, they were considered mature enough to consent to sex and even get married. If a man had sex with a girl who was below that age, it was rape. If girls were younger than 10, it was considered a more severe form of rape and a more serious crime.
By the end of the 19th century, people in England and the United States began to protest these laws, because they felt girls were too young to consent to sex at that age. They pushed for new law that raised the age of consent to between 16 and 18.
New York's child abuse reporting law mandates certain professionals to file a report when they either have reasonable cause to suspect or become aware of abuse or maltreatment (neglect) committed by a \"parent, guardian, custodian or other person legally responsible\" (hereinafter referred to as \"parent or caregiver\") for a child's care.1 Abuse or maltreatment means that the parent or caregiver directly harms the child or acts in a way that allows the child to be physically or emotionally harmed or sexually abused.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
4. Should a mandatory reporter file a child abuse report if he or she learns that a minor is engaged in a sexual relationship with a parent, guardian or person legally responsible -even if the minor says that it is consensual
Yes. A minor engaging in a sexual relationship with a parent, guardian or person legally responsible for their care -even if the minor considers the relationship consensual-is a proper basis for a child abuse report.14
Generally, there is no abuse or neglect if a parent or guardian is unaware of a teen's sexual activity. In Matter of Toni D, 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.
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. New York Penal Law broadly prohibits sexual activity with a minor under the age of seventeen, commonly known as \"statutory rape,\" even when the activity is voluntary and even when the minor engages in sexual activity with a peer who is also under 17, because a person under 17 is deemed incapable of consent as a matter of law.18
Recent guidance from OCFS makes clear that a mandated reporter should make a case by case determination that considers not only the parent's awareness but also whether the parent or caregiver's response was appropriate under the circumstances. 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.
New York courts that have considered the question of whether a parent's knowledge of a teen's sexual activity constitutes child abuse have found that it is not child abuse for a parent to know that a minor child is sexually active if they have responded appropriately under the circumstances.19
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.
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.
As described above, New York courts have held that most cases of voluntary teen sexual activity do not give rise to reasonable suspicion of child abuse or neglect. When a health provider does not have a reasonable suspicion of child abuse or neglect, there is no legal basis to breach a patient's confidentiality to file a report. A health care provider or other professional with confidentiality obligations who makes a child abuse report without reasonable suspicion of abuse or neglect commits professional misconduct. This can subject such providers to professional sanctions for breaching patient confidentiality, in addition to potential liability for committing the crime of false reporting (see Question # 9, below).
3 N.Y. Soc. Serv. Law 412(4) (McKinney 2008). See In re Catherine G., 3 N.Y.3d 175 (2004) (dismissing claim for failure to report abuse of child by 14-year-old boy because boy was not a parent, caregiver, or person legally responsible for the child's welfare and therefore could not be the subject of the report pursuant to the law); see also Page v. Monroe, 488 F. Supp. 2d 219, 221 (N.D.N.Y. 2007) (finding that a report against a half-brother was not legally justified as a report of child abuse or maltreatment because the half brother \"could not be the subject of a report\") affirmed in part, reversed in part by 300 Fed. Appx. 71 (2d Cir. 2008) (affirming the holding that there was no showing of a statutory duty to report under the mandatory reporter law but reversing the grant of summary judgment for the medical malpractice claim because there existed genuine issues of material fact as to whether the pediatrician otherwise breached her duty of care).
4 Teachers and other school employees are not considered persons \"legally responsible\" under New York child abuse laws. However, abuse committed by a school employee against a student in a school setting is governed by another set of laws. School employees must report any allegations of such abuse to school authorities, but not to the Central Register. N.Y. Educ. Law, Art. 23-B (McKinney 2006).
sodomy, and sexual abuse. The categories of offenses are based on the ages of the participants and the type of sexual activity involved. 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. N.Y. Penal Law 130.00 (McKinney 2006). However, it is important to remember that this penal law scheme does not automatically implicate mandatory reporting obligations. Courts have found that a statutory sex offense based on a minor's voluntary activity does not in and of itself constitute abuse or neglect by the parent or caregiver. See cases cited infra note 20.
29 Id.; Gentile v. Garden City Alarm Co., Inc., 147 A.D.2d 124 (2d Dept. 1989). Courts have also defined \"gross negligence\" as involving egregious conduct. Gandianco v. Sobol, 171 A.D.2d 965 (3d Dept. 1991); Spero v. Board of Regents of University of State, 158 A.D.2d 763 (3d Dept. 1990). For example, in Vacchio, the court held that a teacher was not necessarily immune from liability because her immediate reporting of a student's black eye without first inquiring as to the cause of the black eye could support a finding of gross negligence, and thus was made without \"reasonable suspicion\" that child abuse had occurred. However, \"reasonable suspicion\" is a far lower standard than certainty. In Kimberly S.M. v. Bradford Cent. Sch., 226 A.D.2d 85 (4th Dept. 1996), a sixth-grade student told her teacher (a mandatory reporter) that an uncle sexually abused her while she was living with him during school vacations over the course of two years. On the mistaken theory that the uncle was not reportable as a \"person legally responsible\" for the child, the teacher did not report the allegation, and the student continued to spend her school vacations at her uncle's house. The appellate court ruled that the teacher could be held liable for failure to report because the uncle was indeed a reportable custodian or person legally responsible for the child's care-as a person in whose care the child had been entrusted-during the child's extended visits with him because it was clearly unreasonable for the teacher to fail to report the uncle given the facts she knew, as such facts created a \"reasonable suspicion\" that child abuse had occurred. Therefore, mandatory reporters should report reasonable suspicions of child abuse, even if they are uncertain whether or not the situation fits the legal definition thereof. Of course, if a mandatory reporter is certain that the situation does not fit the legal definition of child abuse, a report would not be in good faith and could be considered willful misconduct, thereby not immunizing the mandatory reporter from criminal and civil liability. 59ce067264