National Association of Social Workers

Sexual Activity Reports Fought

A mandatory reporting rule could harm adolescents.

By Lyn Stoesen, News Staff

NASW and its Kansas Chapter have joined other organizations in filing a friend-of-the-court brief challenging the state attorney general's opinion requiring all mandated reporters of child abuse in the state to report all sexual activity by minors as abuse.

The case is being heard in the United States Court of Appeals for the 10th Circuit.

Characterizing the attorney general's interpretation of the state's reporting statute as "a dramatic departure from the traditional use and intent of mandatory reporting," the brief argues that the interpretation "will have precisely the opposite effect" of the goal of protecting Kansas adolescents from sexual abuse.

"Because the Attorney General's interpretation undermines (if not eliminates) confidentiality in communications between professionals and adolescents, it necessarily harms the adolescents it claims to protect," the brief states.

The brief cites data that indicate that many adolescents have engaged in sexual intercourse and other sexual behaviors, and notes that "a significant percentage of adolescents are engaging in activity reportable under the Attorney General's interpretation, given the breadth of its reach, and doing so with age-mates."

The brief also notes that "professional health organizations in this country recognize that confidentiality is an essential component of providing services," and cites the relevant passages from the codes of conduct of numerous professional associations, including NASW. The document also notes that these associations "agree that confidentiality is an essential component of providing services to [the adolescent] population."

Amici also argue that the attorney general's interpretation is harmful to adolescents. The interpretation, the brief states, will send two important signals to adolescents: "first, that the State will have unlimited access to their communications regarding sexual behavior, and second, that any professional in whom an adolescent would likely confide cannot be trusted to keep private communications regarding sexual behavior."

"The attorney general's interpretation detrimentally affects the health of adolescents in Kansas in two distinct ways," the brief states. "First, some adolescents, knowing that their sexual behavior will be reported to the state, will avoid or delay seeking services, and second, some adolescents who seek services despite the reporting requirement will not be honest in discussing their sexual behavior with professionals."

The brief also notes a concern that adolescents will not fully communicate with mental health professionals. It excerpts an NASW policy statement that states, "The confidential nature of communications between social workers and their clients has been a cardinal principle of the social work profession from its earliest years and, indeed, is the framework of the social worker-client relationship."

The brief further argues that the attorney general's interpretation will have negative public health consequences. It "thwarts public health initiatives aimed at preventing adolescent pregnancy, reducing the spread of STDs and promoting early prenatal care." It also will have an economic impact as adolescents who avoid or delay care face health consequences that have high costs to address.

The brief argues that the interpretation diverts resources from dealing with actual abuse. "Resources expended to screen and investigate consensual sexual behavior between age-mates in Kansas necessarily divert resources away from investigating reports of abuse and neglect that involve actual injury and away from interventions to address abusive behavior."

Finally, the brief argues that the interpretation will remove professional discretion in determining what to report and that the mandate to report creates a conflict for professionals. "The attorney general's interpretation creates a conflict for the professional between acting in the best interests of his or her patient/client and obeying the state's reporting requirement."

The brief concludes that "the acknowledged harmful health effects associated with the loss of confidential health communications under the attorney general's interpretation are in fact unnecessarily and unfairly borne by adolescents. If the District Court's decision is reversed and the attorney general's interpretation enforced, the unintended consequence will be that the health of adolescents in Kansas, the group the Reporting Statute intends to protect, will be compromised."

From April 2005 NASW News. © 2005 National Association of Social Workers. All Rights Reserved. NASW News articles may be copied for personal use, but proper notice of copyright and credit to the NASW News must appear on all copies made. This permission does not apply to reproduction for advertising, promotion, resale, or other commercial purposes.