NY State Finally Clarifies Law On Rabbis Reporting Child Sex Abuse
Haredi rabbis who teach in yeshivas can no longer falsely claim they are exempt from reporting child sex abuse to police or ACS. The state has clarified the law, and all teachers – even rabbis – guidance counselors, social workers, school nurses, administrators or any other staff member who is required to hold a teaching or administrative license or certificate – even if they do not have that license or certificate – is mandated to report suspected abuse and must do so directly to police or ACS. It is illegal to call a rabbi first to get permission to report. And that means Rabbi David Zwiebel and his Agudah cronies should prosecuted for interfering in this process and for endangering the welfare of children. But Brooklyn's DA Charles Hynes doesn't have the balls to do it.
Nonpublic Schools in New York State
Where to report: Mandated reporters are required to report suspected child abuse and maltreatment to the Statewide Central Register of Child Abuse and Maltreatment (SCR). The SCR has a special hotline for mandated reporters, the number of which is 1-800-635-1522. Mandated reporters may also use the general hotline if they wish, and that number is 1-800-343-3720.
Q. Are nonpublic school teachers mandated reporters of suspected child abuse and maltreatment under Section 413 of the Social Services Law (SSL)?
A. Yes. Section 413(1)(b) of the SSL provides that the mandated reporter requirements apply to both public and private institutions, schools, facilities and agencies. The relevant language in the mandated reporter law is that the mandated reporter list includes "...school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate...". Accordingly, a teacher in a non-public school would be a mandated report of suspected child abuse and maltreatment. The same would be true of the other listed positions in non-public schools.
Q. Are non-certified, unlicensed staff who interact with or teach children religious subjects, in private parochial schools legally mandated reporters by law and statute?
A. The statute refers specifically to teachers, guidance counselors, psychologists, social workers, nurses, and administrators in schools as being mandated reporters. The qualifying language about the requirement to hold a license or certificate applies to “other school personnel required to hold a teaching or administrative license or certificate”. The NYS Office of Children and Family Services (OCFS) does not understand the requirement to hold a license or certificate to apply to those positions specifically listed in the statute; those positions are mandated reporters regardless of whether they are licensed or certified. Therefore, an unlicensed teacher in a non-public school would be a mandated reporter while functioning as a teacher.
Also, we do not see a distinction in the mandated reporter role for a teacher based on the subject being taught. If the instruction is taking place as a part of a school program, then we would consider the instructor to be a teacher for mandated reporting purposes. Even if the subject being taught is religion, if it is part of the school program, we would consider the teacher of the religious instruction to be a mandated reporter while in that role.
Q: Before making a report to the Statewide Central Register of Child Abuse and Maltreatment, is a mandated reporter in a school legally permitted to first ask permission from the person in charge of the school?
A: No. Section 413(1)(b) of the Social Services Law provides that when a mandated reporter is required to make a report (which would be when the mandated reporter has reasonable cause to suspect that a child has been abused or maltreated), the mandated reporter must make the report. After making the report, the mandated reporter must notify the person in charge of the school that the report was made. That notification comes after the report was made, not before.
Q: Is the answer any different if the mandated reporter works in a private school?
A: No. The mandated reporter rules apply to school officials in both public and private schools, including the requirement that the report be made once the mandated reporter has reasonable cause to suspect that a child has been abused or maltreated.
Q: Is the answer any different if the mandated reporter works in a school that is religiously affiliated and the person in charge of the school is a member of the clergy?
A: No. The mandated reporter must make a report once the mandated reporter has reasonable cause to suspect that a child has been abused or maltreated. The mandated reporter may not ask permission from the person in charge of the school, even if that person is a member of the clergy.
Q: May a mandated reporter ask permission of any person other than the person in charge of the school before making a report to the Statewide Central Register of Child Abuse and Maltreatment?
A: No. The mandated reporter must make a report once the mandated reporter has reasonable cause to suspect that a child has been abused or maltreated. The mandated reporter with reasonable cause to suspect may not wait to get permission from anyone, either inside or outside the school.
Q: If a mandated reporter in a school has reasonable cause to suspect that a child has been abused or maltreated, mentions to the person in charge of the school that the mandated reporter plans to call the Statewide Central Register of Child Abuse and Maltreatment (SCR), and the person in charge of the school tells the mandated reporter not to call the SCR, is the mandated reporter relieved of the responsibility to call the SCR?
A: No. The mandated reporter responsibility lies with the mandated reporter. If there is more than one mandated reporter who has the same information about the suspected abuse or maltreatment, one of the mandated reporters can make the call on behalf of all of the mandated reporters in the school who have the same information, but one of them must call the SCR. Unless a mandated reporter knows that a call was made to the SCR about the abuse or maltreatment that the mandated reporter has reasonable cause to suspect, then a mandated reporter who does not call the SCR has violated his or her mandated reporter responsibility. Pursuant to Section 420 of the Social Services Law, a mandated reporter who fails to report is guilty of a class A misdemeanor and is civilly liable for any damages proximately caused by the failure to report.
Q. If the mandated reporter guidelines do apply to teachers in non-public schools, how would it be that training for this responsibility is not similarly required?
A. The Education Law prescribes mandated reporter training requirements for professions licensed under the Education Law. There are not necessarily mandated reporter training requirements for all categories of mandated reporters (for example, law enforcement personnel). However, Section 413(2) of the SSL requires that any person, institution, school, facility, agency, organization, partnership or corporation that employs mandated reporters must provide to those mandated reporters, information on the mandated reporting requirements. While not a training requirement, as such, there is thus a requirement that non-public schools provide information on mandated reporting to their staff. There are materials on the OCFS website on mandated reporting that can be used for this purpose: http://www.nysmandatedreporter.org/
Q. If a clergyman fills in for a day or a week or month, or for that matter, for a semester, teaching the gospel for 40 minutes on Monday mornings in a parochial school, does he automatically become a legally mandated reporter?
A. A member of the clergy, as such, is not a mandated reporter. However, a member of the clergy functioning in a role which carries the mandated reporter responsibility would be a mandated reporter while functioning in that role. Therefore, in the example, while a clergyman is teaching in the school, and while carrying on functions associated with the role as teacher, he would be a mandated reporter. During those times when the clergyman is not functioning as a teacher, he would not be a mandated reporter. If the clergyman only functions as a teacher one day each semester for an hour, he is a mandated reporter during that time.
Q. Does Section 413 of the SSL require the listed mandated reporters to report abuse or maltreatment inflicted on a child that actually has occurred on the premises of a nonpublic school, inflicted by another nonpublic school employee?
A. In most cases, it would not. This question gets to the issue of who may be a subject of a report of suspected child abuse or maltreatment. The term “subject of the report” is defined in Section 412(4) of the SSL and includes the following: parent; guardian; other person aged 18 or older who is legally responsible for the child; director, operator, employee or volunteer in a day care program or day services program; director, operator, employee or volunteer in a home or residential facility operated or licensed by an authorized agency, the Office of Children and Family Services, the Office of Mental Health, the Office for Persons with Developmental Disabilities, or the Office of Alcoholism and Substance Abuse Services;
director, operator, employee or volunteer of a residential educational facility; and a consultant, or employee or volunteer of a provider of goods and services to a residential care facility operated or licensed by the Office of Children and Family Services, the Office of Mental Health, the Office for Persons with Developmental Disabilities, or the Office of Alcoholism and Substance Abuse Services, or a residential educational facility.
The one category of “subject of the report” that affects schools is director, operator, employee or volunteer of a residential educational facility. Residential educational facility, for this purpose, is a program described in Section 412-a(4)(c) – (f) of the SSL, which includes the State School for the Blind; the State School for the Deaf; State-supported residential schools for the blind and the deaf; private residential schools approved by the Commissioner of Education for special education services or programs; and residential placements with Special Act school districts. Staff of those types of schools, all of which are associated with residential programs, can be subjects of reports. In those schools, a staff member with reasonable cause to suspect that another staff member had abused or maltreated a child in residential care at the school would be mandated to report that suspected abuse or maltreatment. For all non-residential schools and for all other residential schools, school staff cannot be subjects of reports. Accordingly, school staff of such schools would not be mandated to report alleged abuse or maltreatment of a child by another school staff, as the school staff are outside the purview of the child protective system in their role as school staff.
Protection from retaliation: Section 413(1)(c) of the Social Services Law (SSL) provides that a medical or other public or private institution, school, facility, or agency may not take retaliatory personnel action against an employee for making a report to the SCR. The term “retaliatory personnel action” is defined in Section 740(1)(e) of the Labor Law. That would be the protection the law affords to school staff who make reports to the SCR.
Confidentiality: Section 422(4)(A) of the SSL provides that SCR and child protective records are confidential and are available only as provided for in that statute. However, the end of that paragraph provides further that information that would identify the source of the report to the SCR is available to only a small subset of those who otherwise have some level of access to SCR and child protective records. Those with access to source information are: courts; grand juries; bona fide researchers with the approval of OCFS where the research requires such information; district attorneys; law enforcement agencies; the New York City Department of Investigation; and the State and local comptrollers for purposes of conducting audits. Subjects of reports do not have access to source information absent the consent of the source or a court order.
See the New York State Office of Children and Family Services (OCFS) website for additional information.
On top of this, VIN is reporting that Dov Hikind has introduced a new bill to mandate fingerprinting in religious schools, something public schools already do:
…Assemblyman Dov Hikind introduced a bill two months ago requiring fingerprinting and background checks for all religious and non-public school employees. While New York is among forty two states that requires fingerprinting and background checks for public school employees, non public schools are exempt from this law and only nineteen out of nineteen hundred non public schools in New York fingerprint their employees. Of those nineteen, the only Jewish school to do so is North Shore Hebrew Academy in Great Neck.
“There is no question that fingerprinting is of vital importance and why it hasn’t been done a long time, I have no idea,” said Hikind. “I think we have come a long way on this issue and we are trying to find a way to pay for it so that the financial onus of this important initiative doesn’t fall upon our yeshivos, which are already financially overburdened.”
Hikind is disingenous to the extreme, however. Yeshivas do not do background checks and fingerprinting because they don't want to do it. It has nothing to do with money. In fact, doing it lowers insurance premiums, but yeshivas still don't fingerprint or check backgrounds.
So why don't they?
Because they don't want to know the truth.
[Hat Tip: Seymour.]