Avoiding Liability Bulletin – May 2008
… 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.
ABOUT THE AUTHOR
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.