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| Avoiding Liability Bulletin |
May 2008, Volume 1 |
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by Richard S. Leslie, J.D. Click here for profile.
Attorney at Law - "At the Intersection of Law and Psychotherapy"
Child Abuse - Emancipation of Minor
… What is the effect, if any, of your state’s
emancipation of minor laws on your duty as a mandated reporter of child abuse?
The answer to this question varies from state to state, but it is an important
question to think about and to answer. One example of how this question may
arise involves consensual sexual intercourse between minors or between a minor
and an adult. Suppose that a fifteen-year old minor tells her therapist or
counselor that she engaged in consensual sexual intercourse with her twenty-two
year old friend. Suppose further that such information must be reported by the
practitioner as a part of his or her duty to report known or suspected child
abuse.
Does the duty to report change if the minor
tells the therapist that she has been declared by the court to be emancipated?
In order to answer this question, reference must be made both to the child
abuse reporting law and to the laws dealing with emancipation of a minor. For
instance, how does the child abuse reporting law define the word “child?” Does
the child abuse reporting law mention anything about emancipated minors, and if
so, does it provide the necessary guidance? In some states, the definition of
“child,” for purposes of reporting child abuse, is simply “ a person under the
age of eighteen.” No reference may be made to an emancipated minor. In such
case, it is important to look at the statutes dealing with emancipation.
The laws dealing with emancipation will
typically specify the age at which emancipation may be petitioned for by the
minor and/or a parent. In one state, the age is as low as fourteen. In that
state, there is also a statute that specifies the legal effects of
emancipation. That law specifies that an emancipated minor can enter into legally
binding contracts, own real property, establish his/her own residence, sue or
be sued, and consent to medical, dental or psychiatric care without parental
consent, knowledge or liability, among other things. This law, however, does
not say anything about the minor no longer being subject to the child abuse
reporting laws because of his or her emancipation. Thus, since the child abuse
and neglect reporting law in that state defines a minor as a person under the
age of eighteen, emancipation would apparently have no effect upon the duty to
report child abuse under the circumstances specified above.
Not every question, however, is as easy to answer.
Suppose, for example, that the emancipated minor in the question posed in the
first paragraph is married to the twenty-two year old. Would sexual intercourse
between the two married persons be required to be reported as child abuse? A
review of the applicable laws in the state in question reveals that there is an
exception made in the case of sexual intercourse between spouses. In any event,
it seems highly unlikely that a child protective services agency would
investigate a report of child abuse if a report were made for the consensual
sexual intercourse of a fifteen year old with her adult husband. It must be mentioned
that just because the minor indicates that she is emancipated and lawfully
married, that does not make it so. Sometimes patients lie or are mistaken. And
further, therapists and counselors are not generally expected or required to
investigate. Thus, a therapist involved in such a situation might, depending upon circumstances, need to
call child protective services and report the facts (and indicate that in his
or her opinion this does not appear to be child abuse) and either allow CPS to
investigate and then close the case or to decide from the outset that no report
will be taken or that no report need be made.
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