By now, most everyone out there has heard of the scandal surrounding Penn State’s Joe Paterno and the former defensive coordinator Jerry Sandusky. I woke up this morning to hear a report that Paterno had been fired, and that students have been protesting. According to the reports, Joe Paterno was told by a university graduate assistant that the assistant witnessed Sandusky having sex with a boy in the football complex showers in 2002. CNN reports that Sandusky met the boy, and others, through a charity that he founded to help troubled youth. Paterno reported the information to his boss at the university in 2002, but not to law enforcement. That caused me to think-what if this had happened in Florida? Would Joe Paterno have any legal duty to report the case of child abuse to law enforcement? Would he be liable in any way for not reporting it to law enforcement? The answer is hard to predict.
Today, chapter 39 of the Florida Statutes governs the area of reporting child abuse. Under section 39.201(1)(a), reports are mandatory under certain circumstances. The section provides,
“Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).”
Fla. Stat. 39.201(1)(a) (emphasis added).
The phrase “any person,” as used in Florida section 39.201, makes the statute appear to be fairly broad. However, the other emphasized language, “by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare,” may have the effect of restricting the scope of the statute to reports concerning abuse perpetrated by those specifically listed individuals. In one case, that very argument was successful in the trial court. See Drudge v. City of Kissimmee, 581 F. Supp 2d 1176, 1189 (M.D. Fla. 2008) (trial court dismissed charges against teacher for failing to report suspected child abuse by fellow teacher because the court determined that the statute did not require the reporting of a public school teacher’s abuse of a student).
Florida section 39.205(1) makes it a first degree misdemeanor to knowingly and willfully fail to report, or to knowingly and willfully prevent another person from reporting, a suspected case of child abuse. Under 39.205(2), it becomes a third degree felony to knowingly and willfully fail to report child abuse, where the person who should have reported the abuse is 18 years of age or older and living in the same house as the child victim, unless the person who failed to report the abuse is a victim of domestic violence or other mitigating circumstances exist.
Apart from cases involving Florida’s Department of Children and Families, which I’m not discussing here, not many cases have been reported in this area. Florida’s Fourth District Court of Appeal has held that the predecessor statute, section 415, part 1, did not create a civil cause of action for failing to report abuse. See Mora v. South Broward Hosp. Dist., 710 So. 2d 633 (Fla. 4th DCA 1998). In another case, Barber v. State, 592 So. 2d 330 (Fla. 2d DCA 1992), the court held that the predecessor statute, section 415.513(1), was not overly broad. I was only able to locate two reported cases involving arrests for failing to report child abuse. See Drudge, 581 F. Supp 2d 1176 (finding that officer who requested arrest warrant under section 39.205 was immune from liability under section 1983 because the request for the arrest warrant was reasonable at the time it was made); Graham v. State, 779 So. 2d 604 (Fla. 2d DCA 2001) (noting that defendant had been sentenced for lewd and lascivious conduct in the presence of a child under sixteen, and for “failure to report, a second-degree misdemeanor in violation of” sections 39.201 and 205).