A Defense in a Failure-to-Report-Child-Abuse Case

 Posted on November 22, 2013 in Uncategorized

A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter. An offense under this section is a Class A misdemeanor....

Texas Family Code Section 261.09.

The Harris County DA has charged a high-school principal and two assistant principals with failure to report child abuse. The DA has a high hurdle to overcome if the defendants mount a determined defense.

In early October, a [17-year-old] student came to...an ESL teacher, telling her that a teacher had touched his genitals, according to court documents. Hughes took him to [one of the charged assistant principals]. From there [the other assistant principal and the principal] were both made aware of the allegations, according to court records, but failed to report this to authorities.

The principal is also charged with failing to report a genital-touching incident on another seventeen-year-old male by the same teacher, and a sexual assault on a sixteen-year-old female student (apparently by a different teacher, since the one teacher who is named as a defendant "is charged with having inappropriate contact with three male students").

Each assistant principal is charged with failing to report only one genital-touching incident.

"Abuse" that can trigger the reporting requirement includes the following:

(A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;(E) sexual conduct harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or children under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code, including conduct that constitutes an offense of trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code, prostitution under Section 43.02(a)(2), Penal Code, or compelling prostitution under Section 43.05(a)(2), Penal Code;(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code;(K) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Section 43.25, Penal Code; or(L) knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under Section 20A.02(a)(5), (6), (7), or (8), Penal Code, or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections.

In the case of Assistant Principal Leiva, the age of the complainant, "Y.R.," is not given in the complaint. In the case of Assistant Principal Thomson, the complainant, "W.R.," was seventeen.

Rubbing the genitals of a child under seventeen would be indecency with a child, per se abuse. Rubbing the genitals of a seventeen-year-old child could be "sexual conduct harmful to a child's mental, emotional, or physical welfare."

But not all abuse must be reported. Only if the defendant "has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected" must he report the abuse or neglect.

A teacher touching a high-school student's genitals could "adversely affect the student's physical or mental health or welfare." But it's by no means a foregone conclusion that it will-high school kids are a lot tougher and more resilient than society generally gives them credit for.

While we have a longstanding moral panic about teenagers' sexuality, ((While simultaneously sexualizing children in mass media. Go figure.)) a 17-year-old is past the age at which even the law recognizes that a person may effectively consent to sex with an adult.

Moral panic notwithstanding, did Gasparello and Thomson have cause to believe that the teacher touching the 17-year-old student's genitals might adversely affect the student's physical or mental welfare? Did Leiva have cause to believe that the teacher touching the student's genitals might adversely affect the student's physical or mental welfare?

That could be tough to prove. ((My first thought on reading about the charges, though, was another defense entirely: In a failure-to-report case, the DA's Office has a hell of a negative to prove: that the defendants didn't report the abuse to "any local or state law enforcement agency." There are fifty state law-enforcement agencies in the US alone, and thousands, if not tens of thousands, of local law enforcement agencies. As a practical matter, the State can't prove beyond a reasonable doubt that the defendant didn't report abuse to anyone without the defendant's admission. I read the criminal complaints, and HPD Officer Martinez claims to have elicited such admissions from all three of these defendants. Well done, Martinez:

Assistant Principal Leiva complaint:/wp-content/uploads/2013/11/58393502.pdfAssistant Principal Thomson complaint:/wp-content/uploads/2013/11/58393503.pdfPrincipal Gasparello complaint 1:/wp-content/uploads/2013/11/58393504.pdfPrincipal Gasparello complaint 2:/wp-content/uploads/2013/11/58393505.pdfPrincipal Gasparello complaint 3:/wp-content/uploads/2013/11/58393506.pdf))