BILL REQ. #: H-4890.1
State of Washington | 58th Legislature | 2004 Regular Session |
READ FIRST TIME 02/06/04.
AN ACT Relating to the duty of a member of the clergy to report sexual abuse of a child; and amending RCW 26.44.020 and 26.44.030.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 26.44.020 and 2000 c 162 s 19 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Court" means the superior court of the state of Washington,
juvenile department.
(2) "Law enforcement agency" means the police department, the
prosecuting attorney, the state patrol, the director of public safety,
or the office of the sheriff.
(3) "Practitioner of the healing arts" or "practitioner" means a
person licensed by this state to practice podiatric medicine and
surgery, optometry, chiropractic, nursing, dentistry, osteopathic
medicine and surgery, or medicine and surgery or to provide other
health services. The term "practitioner" includes a duly accredited
Christian Science practitioner: PROVIDED, HOWEVER, That a person who
is being furnished Christian Science treatment by a duly accredited
Christian Science practitioner will not be considered, for that reason
alone, a neglected person for the purposes of this chapter.
(4) "Institution" means a private or public hospital or any other
facility providing medical diagnosis, treatment or care.
(5) "Department" means the state department of social and health
services.
(6) "Child" or "children" means any person under the age of
eighteen years of age.
(7) "Professional school personnel" include, but are not limited
to, teachers, counselors, administrators, child care facility
personnel, and school nurses.
(8) "Social service counselor" means anyone engaged in a
professional capacity during the regular course of employment in
encouraging or promoting the health, welfare, support or education of
children, or providing social services to adults or families, including
mental health, drug and alcohol treatment, and domestic violence
programs, whether in an individual capacity, or as an employee or agent
of any public or private organization or institution.
(9) "Psychologist" means any person licensed to practice psychology
under chapter 18.83 RCW, whether acting in an individual capacity or as
an employee or agent of any public or private organization or
institution.
(10) "Pharmacist" means any registered pharmacist under chapter
18.64 RCW, whether acting in an individual capacity or as an employee
or agent of any public or private organization or institution.
(11) "Member of the clergy" means any regularly licensed,
accredited, certified, or ordained minister, priest, ((or)) rabbi,
imam, or similarly situated religious or spiritual leader of any church
((or)), religious organization, religious denomination, religious body,
spiritual community, or sect, who performs official duties recognized
as the duties of a member of the clergy under the discipline, tenets,
doctrine, or custom of the member of the clergy's church, religious
organization, religious denomination, religious body, spiritual
community, or sect, whether acting in an individual capacity or as an
employee ((or)), agent, officer, or official of any public or private
organization or institution.
(12) "Abuse or neglect" means the injury, sexual abuse, sexual
exploitation, negligent treatment, or maltreatment of a child by any
person under circumstances which indicate that the child's health,
welfare, and safety is harmed, excluding conduct permitted under RCW
9A.16.100. "Sexual abuse" includes any offense defined as a sex
offense in RCW 9A.44.130. An abused child is a child who has been
subjected to child abuse or neglect as defined in this section.
(13) "Child protective services section" means the child protective
services section of the department.
(14) "Sexual exploitation" includes: (a) Allowing, permitting, or
encouraging a child to engage in prostitution by any person; or (b)
allowing, permitting, encouraging, or engaging in the obscene or
pornographic photographing, filming, or depicting of a child by any
person.
(15) "Negligent treatment or maltreatment" means an act or omission
that evidences a serious disregard of consequences of such magnitude as
to constitute a clear and present danger to the child's health,
welfare, and safety. The fact that siblings share a bedroom is not, in
and of itself, negligent treatment or maltreatment.
(16) "Child protective services" means those services provided by
the department designed to protect children from child abuse and
neglect and safeguard such children from future abuse and neglect, and
conduct investigations of child abuse and neglect reports.
Investigations may be conducted regardless of the location of the
alleged abuse or neglect. Child protective services includes referral
to services to ameliorate conditions that endanger the welfare of
children, the coordination of necessary programs and services relevant
to the prevention, intervention, and treatment of child abuse and
neglect, and services to children to ensure that each child has a
permanent home. In determining whether protective services should be
provided, the department shall not decline to provide such services
solely because of the child's unwillingness or developmental inability
to describe the nature and severity of the abuse or neglect.
(17) "Malice" or "maliciously" means an evil intent, wish, or
design to vex, annoy, or injure another person. Such malice may be
inferred from an act done in willful disregard of the rights of
another, or an act wrongfully done without just cause or excuse, or an
act or omission of duty betraying a willful disregard of social duty.
(18) "Sexually aggressive youth" means a child who is defined in
RCW 74.13.075(1)(b) as being a sexually aggressive youth.
(19) "Unfounded" means available information indicates that, more
likely than not, child abuse or neglect did not occur. No unfounded
allegation of child abuse or neglect may be disclosed to a child-placing agency, private adoption agency, or any other provider licensed
under chapter 74.15 RCW.
Sec. 2 RCW 26.44.030 and 2003 c 207 s 4 are each amended to read
as follows:
(1)(a) When any practitioner, county coroner or medical examiner,
law enforcement officer, professional school personnel, registered or
licensed nurse, social service counselor, psychologist, pharmacist,
licensed or certified child care providers or their employees, employee
of the department, juvenile probation officer, placement and liaison
specialist, responsible living skills program staff, HOPE center staff,
or state family and children's ombudsman or any volunteer in the
ombudsman's office has reasonable cause to believe that a child has
suffered abuse or neglect, he or she shall report such incident, or
cause a report to be made, to the proper law enforcement agency or to
the department as provided in RCW 26.44.040.
(b) The reporting requirement also applies to department of
corrections personnel who, in the course of their employment, observe
offenders or the children with whom the offenders are in contact. If,
as a result of observations or information received in the course of
his or her employment, any department of corrections personnel has
reasonable cause to believe that a child has suffered abuse or neglect,
he or she shall report the incident, or cause a report to be made, to
the proper law enforcement agency or to the department as provided in
RCW 26.44.040.
(c) The reporting requirement shall also apply to any adult who has
reasonable cause to believe that a child who resides with them, has
suffered severe abuse, and is able or capable of making a report. For
the purposes of this subsection, "severe abuse" means any of the
following: Any single act of abuse that causes physical trauma of
sufficient severity that, if left untreated, could cause death; any
single act of sexual abuse that causes significant bleeding, deep
bruising, or significant external or internal swelling; or more than
one act of physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone fracture, or
unconsciousness.
(d) The report must be made at the first opportunity, but in no
case longer than forty-eight hours after there is reasonable cause to
believe that the child has suffered abuse or neglect. The report must
include the identity of the accused if known.
(2) The reporting requirement of subsection (1) of this section
does not apply to the discovery of abuse or neglect that occurred
during childhood if it is discovered after the child has become an
adult. However, if there is reasonable cause to believe other children
are or may be at risk of abuse or neglect by the accused, the reporting
requirement of subsection (1) of this section does apply.
(3) Any other person who has reasonable cause to believe that a
child has suffered abuse or neglect may report such incident to the
proper law enforcement agency or to the department of social and health
services as provided in RCW 26.44.040.
(4) The department, upon receiving a report of an incident of
alleged abuse or neglect pursuant to this chapter, involving a child
who has died or has had physical injury or injuries inflicted upon him
or her other than by accidental means or who has been subjected to
alleged sexual abuse, shall report such incident to the proper law
enforcement agency. In emergency cases, where the child's welfare is
endangered, the department shall notify the proper law enforcement
agency within twenty-four hours after a report is received by the
department. In all other cases, the department shall notify the law
enforcement agency within seventy-two hours after a report is received
by the department. If the department makes an oral report, a written
report must also be made to the proper law enforcement agency within
five days thereafter.
(5) Any law enforcement agency receiving a report of an incident of
alleged abuse or neglect pursuant to this chapter, involving a child
who has died or has had physical injury or injuries inflicted upon him
or her other than by accidental means, or who has been subjected to
alleged sexual abuse, shall report such incident in writing as provided
in RCW 26.44.040 to the proper county prosecutor or city attorney for
appropriate action whenever the law enforcement agency's investigation
reveals that a crime may have been committed. The law enforcement
agency shall also notify the department of all reports received and the
law enforcement agency's disposition of them. In emergency cases,
where the child's welfare is endangered, the law enforcement agency
shall notify the department within twenty-four hours. In all other
cases, the law enforcement agency shall notify the department within
seventy-two hours after a report is received by the law enforcement
agency.
(6) Any county prosecutor or city attorney receiving a report under
subsection (5) of this section shall notify the victim, any persons the
victim requests, and the local office of the department, of the
decision to charge or decline to charge a crime, within five days of
making the decision.
(7) The department may conduct ongoing case planning and
consultation with those persons or agencies required to report under
this section, with consultants designated by the department, and with
designated representatives of Washington Indian tribes if the client
information exchanged is pertinent to cases currently receiving child
protective services. Upon request, the department shall conduct such
planning and consultation with those persons required to report under
this section if the department determines it is in the best interests
of the child. Information considered privileged by statute and not
directly related to reports required by this section must not be
divulged without a valid written waiver of the privilege.
(8) Any case referred to the department by a physician licensed
under chapter 18.57 or 18.71 RCW on the basis of an expert medical
opinion that child abuse, neglect, or sexual assault has occurred and
that the child's safety will be seriously endangered if returned home,
the department shall file a dependency petition unless a second
licensed physician of the parents' choice believes that such expert
medical opinion is incorrect. If the parents fail to designate a
second physician, the department may make the selection. If a
physician finds that a child has suffered abuse or neglect but that
such abuse or neglect does not constitute imminent danger to the
child's health or safety, and the department agrees with the
physician's assessment, the child may be left in the parents' home
while the department proceeds with reasonable efforts to remedy
parenting deficiencies.
(9) Persons or agencies exchanging information under subsection (7)
of this section shall not further disseminate or release the
information except as authorized by state or federal statute.
Violation of this subsection is a misdemeanor.
(10) Upon receiving reports of alleged abuse or neglect, the
department or law enforcement agency may interview children. The
interviews may be conducted on school premises, at day-care facilities,
at the child's home, or at other suitable locations outside of the
presence of parents. Parental notification of the interview must occur
at the earliest possible point in the investigation that will not
jeopardize the safety or protection of the child or the course of the
investigation. Prior to commencing the interview the department or law
enforcement agency shall determine whether the child wishes a third
party to be present for the interview and, if so, shall make reasonable
efforts to accommodate the child's wishes. Unless the child objects,
the department or law enforcement agency shall make reasonable efforts
to include a third party in any interview so long as the presence of
the third party will not jeopardize the course of the investigation.
(11) Upon receiving a report of alleged child abuse and neglect,
the department or investigating law enforcement agency shall have
access to all relevant records of the child in the possession of
mandated reporters and their employees.
(12) The department shall maintain investigation records and
conduct timely and periodic reviews of all cases constituting abuse and
neglect. The department shall maintain a log of screened-out
nonabusive cases.
(13) The department shall use a risk assessment process when
investigating alleged child abuse and neglect referrals. The
department shall present the risk factors at all hearings in which the
placement of a dependent child is an issue. Substance abuse must be a
risk factor. The department shall, within funds appropriated for this
purpose, offer enhanced community-based services to persons who are
determined not to require further state intervention.
(14) Upon receipt of a report of alleged abuse or neglect the law
enforcement agency may arrange to interview the person making the
report and any collateral sources to determine if any malice is
involved in the reporting.
(15) The department shall make reasonable efforts to learn the
name, address, and telephone number of each person making a report of
abuse or neglect under this section. The department shall provide
assurances of appropriate confidentiality of the identification of
persons reporting under this section. If the department is unable to
learn the information required under this subsection, the department
shall only investigate cases in which: (a) The department believes
there is a serious threat of substantial harm to the child; (b) the
report indicates conduct involving a criminal offense that has, or is
about to occur, in which the child is the victim; or (c) the department
has, after investigation, a report of abuse or neglect that has been
founded with regard to a member of the household within three years of
receipt of the referral.
(16)(a) When any member of the clergy has reasonable cause to
believe that a child has suffered sexual abuse and the accused is
another member of the clergy, or an employee, of the same church,
religious organization, religious denomination, religious body,
spiritual community, or sect, he or she shall report such incident, or
cause a report to be made, to the proper law enforcement agency or to
the department as provided in RCW 26.44.040.
(b) The reporting requirement of (a) of this subsection does not
apply to a member of the clergy with regard to information obtained
solely as a result of a confession made under the clergy-penitent
privilege as provided in RCW 5.60.060(3).
(c) Nothing in this section exempts a member of the clergy from
making a report of child sexual abuse as required in subsection (1)(a)
of this section when the member of the clergy is acting in some other
capacity that would otherwise require him or her to make a report.
(d) Nothing in this chapter may be construed to create civil
liability of any kind or to add reporting obligations of members of the
clergy beyond those specifically stated in this section.