Pennsylvania proposal would require attorneys to report incidents of child abuse

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Attorneys may become mandated reporters of child abuse if a recommendation suggested by a task force created in the wake of the Jerry Sandusky and the Philadelphia priest sex-abuse scandals is passed into law.

The task force would add attorneys to the list of those mandated to report suspected child abuse.

The proposed change makes exceptions for confidential communications to lawyers, "but only to the extent that such communications are protected under the rules of professional conduct for attorneys."

In its report, the task force said it was adding the "only to the extent" provision in order to narrow the scope of privilege regarding confidential communications made to attorneys.

Frank Cervone of the Support Center for Child Advocates said he is comfortable with adding attorneys to the list of mandated reporters, but that it would complicate an already confusing situation. "We haven't yet gotten clear in Pennsylvania what we want of our lawyers in our attorney-client relationships," he said.

The Pennsylvania Task Force on Child Protection, which was created in December 2011, adopted its final report for recommendations to change Pennsylvania law on Tuesday.

Cindy W. Christian, a child abuse pediatrician and director of Safe Place: The Center for Child Protection and Health at the Children's Hospital of Philadelphia, said the legal definition of sexual abuse does not need to be changed much, but the legal definition of physical abuse should be changed.

The recommendation is to eliminate the stipulation that, in order for abuse to have occurred, children must experience severe pain or have suffered serious bodily injury.

Current law requires that in order to find a child has been physically abused, the child must have been caused severe pain or have significant impairment to his or her physical functioning, whether temporarily or permanently.

As a pediatrician, Dr. Christian said she has seen patients who have been abused but the abuse would not meet the legal definition. She gave the hypothetical situation of a child who has been smothered but is still breathing, and thus not in severe pain or in a state of significant impairment.

"There was no person who testified before us or submitted written testimony that [stated] our definitions of physical abuse were exemplary or even satisfactory," Dr. Christian said.

Further, she said, the manner in which courts interpret serious physical injury "is not the way, for example, that a doctor might interpret it or a child welfare worker" might interpret it.

Current state law also defines child abuse as any act, or failure to act, that causes non-accidental serious physical injury or non-accidental serious mental injury, but the task force suggested the "non-accidental" language should be changed to "reckless and intentional behavior."

That change would track Pennsylvania case law, Mr. Cervone said.

"Outside the legal community, the definition of reckless or intentional is likely to be problematic to lay people," Mr. Cervone said. "Many lay folks won't get what the law means by those terms."

But he said that it is still a better standard than the current one.

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Amaris Elliott-Engel: aelliott-engel@alm.com or 215-557-2354. To read more articles like this, visit www.thelegalintelligencer.com.


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