S T A T E O F N E W Y O R K ________________________________________________________________________ 1308--A 2011-2012 Regular Sessions I N S E N A T E January 6, 2011 ___________ Introduced by Sen. DUANE -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- recommitted to the Committee on Children and Families in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the social services law, in relation to the reporting of child abuse THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph (a) of subdivision 1 of section 413 of the social 2 services law, as amended by chapter 91 of the laws of 2011, is amended 3 to read as follows: 4 (a) The following persons and officials are required to report or 5 cause a report to be made in accordance with this title when they have 6 reasonable cause to suspect that a child coming before them in their 7 professional or official capacity is an abused or maltreated child, or 8 when they have reasonable cause to suspect that a child is an abused or 9 maltreated child where the parent, guardian, custodian or other person 10 legally responsible for such child comes before them in their profes- 11 sional or official capacity and states from personal knowledge facts, 12 conditions or circumstances which, if correct, would render the child an 13 abused or maltreated child: any physician; registered physician assist- 14 ant; surgeon; medical examiner; coroner; dentist; dental hygienist; 15 osteopath; optometrist; chiropractor; podiatrist; resident; intern; 16 psychologist; registered nurse; social worker; emergency medical techni- 17 cian; licensed creative arts therapist; licensed marriage and family 18 therapist; licensed mental health counselor; licensed psychoanalyst; 19 hospital personnel engaged in the admission, examination, care or treat- 20 ment of persons; A MEMBER OF THE CLERGY; a Christian Science practition- 21 er; school official, which includes but is not limited to school teach- 22 er, school guidance counselor, school psychologist, school social EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01134-02-2 S. 1308--A 2 1 worker, school nurse, school administrator or other school personnel 2 required to hold a teaching or administrative license or certificate; 3 social services worker; director of a children's overnight camp, summer 4 day camp or traveling summer day camp, as such camps are defined in 5 section thirteen hundred ninety-two of the public health law; day care 6 center worker; school-age child care worker; provider of family or group 7 family day care; employee or volunteer in a residential care facility 8 defined in subdivision four of section four hundred twelve-a of this 9 title or any other child care or foster care worker; mental health 10 professional; substance abuse counselor; alcoholism counselor; all 11 persons credentialed by the office of alcoholism and substance abuse 12 services; peace officer; police officer; district attorney or assistant 13 district attorney; investigator employed in the office of a district 14 attorney; or other law enforcement official. 15 S 2. Article 6 of the social services law is amended by adding a new 16 title 6-B to read as follows: 17 TITLE 6-B 18 REPORTS OF CHILD ABUSE TO 19 LAW ENFORCEMENT 20 SECTION 429-A. PERSONS AND OFFICIALS REQUIRED TO REPORT CASES OF 21 SUSPECTED CHILD ABUSE TO APPROPRIATE LAW ENFORCEMENT 22 AGENCY. 23 429-B. PENALTIES FOR FAILURE TO REPORT. 24 429-C. IMMUNITY FROM LIABILITY. 25 429-D. REVIEW OF EXISTING RECORDS FOR ALLEGATIONS THAT A CHILD 26 IS AN ABUSED CHILD; DISTRICT ATTORNEY; PENALTY. 27 S 429-A. PERSONS AND OFFICIALS REQUIRED TO REPORT CASES OF SUSPECTED 28 CHILD ABUSE TO APPROPRIATE LAW ENFORCEMENT AGENCY. 1. (A) THE FOLLOWING 29 PERSONS AND OFFICIALS ARE REQUIRED TO REPORT OR CAUSE AN INDICATED 30 REPORT AS DEFINED IN SUBDIVISION SEVEN OF SECTION FOUR HUNDRED TWELVE OF 31 THIS ARTICLE TO BE MADE TO AN APPROPRIATE LAW ENFORCEMENT AGENCY WHEN 32 THEY HAVE REASONABLE CAUSE TO SUSPECT IN THEIR PROFESSIONAL OR OFFICIAL 33 CAPACITY THAT A CHILD IS AN ABUSED CHILD: ANY PHYSICIAN; REGISTERED 34 PHYSICIAN ASSISTANT; SURGEON; MEDICAL EXAMINER; CORONER; DENTIST; DENTAL 35 HYGIENIST; OSTEOPATH; OPTOMETRIST; CHIROPRACTOR; PODIATRIST; RESIDENT; 36 INTERN; PSYCHOLOGIST; REGISTERED NURSE; EMERGENCY MEDICAL TECHNICIAN; 37 HOSPITAL PERSONNEL ENGAGED IN THE ADMISSION, EXAMINATION, CARE OR TREAT- 38 MENT OF PERSONS; MEMBER OF THE CLERGY; A CHRISTIAN SCIENCE PRACTITIONER; 39 SCHOOL OFFICIAL; SOCIAL SERVICES WORKER; DAY CARE CENTER WORKER; PROVID- 40 ER OF FAMILY OR GROUP FAMILY DAY CARE; EMPLOYEE OR VOLUNTEER IN A RESI- 41 DENTIAL CARE FACILITY OR ANY OTHER CHILD CARE OR FOSTER CARE WORKER; 42 MENTAL HEALTH PROFESSIONAL; SUBSTANCE ABUSE COUNSELOR; ALCOHOLISM COUN- 43 SELOR; PEACE OFFICER; POLICE OFFICER; DISTRICT ATTORNEY OR ASSISTANT 44 DISTRICT ATTORNEY; INVESTIGATOR EMPLOYED IN THE OFFICE OF A DISTRICT 45 ATTORNEY; OR OTHER LAW ENFORCEMENT OFFICIAL. 46 (B) FOR THE PURPOSES OF THIS SECTION THE TERM "ABUSED CHILD" SHALL 47 MEAN A CHILD UNDER THE AGE OF EIGHTEEN YEARS UPON WHOM A PERSON EIGHTEEN 48 YEARS OF AGE OR MORE WHO IS DEFINED IN PARAGRAPH (A) OF THIS SUBDIVISION 49 AND WHO IS NOT THE PARENT OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH 50 CHILD'S CARE: 51 (I) INTENTIONALLY OR RECKLESSLY INFLICTS PHYSICAL INJURY, SERIOUS 52 PHYSICAL INJURY OR DEATH, OR 53 (II) INTENTIONALLY OR RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A 54 SUBSTANTIAL RISK OF SUCH PHYSICAL INJURY, SERIOUS PHYSICAL INJURY OR 55 DEATH, OR S. 1308--A 3 1 (III) COMMITS OR ATTEMPTS TO COMMIT AGAINST A CHILD THE CRIME OF 2 DISSEMINATING INDECENT MATERIALS TO MINORS PURSUANT TO ARTICLE TWO 3 HUNDRED THIRTY-FIVE OF THE PENAL LAW, OR 4 (IV) ENGAGES IN ANY CONDUCT PROHIBITED BY ARTICLE ONE HUNDRED THIRTY 5 OR TWO HUNDRED SIXTY-THREE OF THE PENAL LAW. 6 (C) FOR THE PURPOSES OF THIS SECTION THE TERM "LAW ENFORCEMENT AUTHOR- 7 ITIES" SHALL MEAN A MUNICIPAL POLICE DEPARTMENT, SHERIFF'S DEPARTMENT, 8 THE DIVISION OF STATE POLICE OR ANY OFFICER THEREOF OR A DISTRICT ATTOR- 9 NEY OR ASSISTANT DISTRICT ATTORNEY. NOTWITHSTANDING ANY OTHER PROVISION 10 OF LAW, LAW ENFORCEMENT AUTHORITIES SHALL NOT INCLUDE ANY CHILD PROTEC- 11 TIVE SERVICE OR ANY SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN AS 12 SUCH TERMS ARE DEFINED IN SECTION FOUR HUNDRED TWENTY-THREE OF THIS 13 ARTICLE. 14 (D) FOR THE PURPOSES OF THIS SECTION THE TERM "MEMBER OF THE CLERGY" 15 SHALL HAVE THE SAME DEFINITION AS THE TERM "CLERGYMAN" AS SET FORTH IN 16 SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW AND SHALL ALSO INCLUDE ANY 17 PERSON RESPONSIBLE FOR SUPERVISING A MEMBER OF THE CLERGY OF A RELIGIOUS 18 INSTITUTION OR RESPONSIBLE FOR THE ADMINISTRATION OF A RELIGIOUS INSTI- 19 TUTION. 20 (E) FOR THE PURPOSES OF THIS SECTION THE TERM "RELIGIOUS INSTITUTION" 21 SHALL MEAN A RELIGIOUS CORPORATION CREATED TO ENABLE ITS MEMBERS TO MEET 22 FOR DIVINE WORSHIP OR OTHER RELIGIOUS OBSERVANCES OR A CONGREGATION, 23 SOCIETY, OR OTHER ASSEMBLAGE OF PERSONS WHO ARE ACCUSTOMED TO STATEDLY 24 MEET FOR DIVINE WORSHIP OR OTHER RELIGIOUS OBSERVANCES, WITHOUT HAVING 25 BEEN INCORPORATED FOR THAT PURPOSE, AS PROVIDED IN SECTION TWO OF THE 26 RELIGIOUS CORPORATIONS LAW. 27 2. (A) UNLESS THE PERSON CONFESSING OR CONFIDING WAIVES THE PRIVILEGE, 28 A MEMBER OF THE CLERGY, OR OTHER MINISTER OF ANY RELIGION OR DULY 29 ACCREDITED CHRISTIAN SCIENCE PRACTITIONER, SHALL NOT BE REQUIRED TO MAKE 30 A REPORT AS REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION 31 IF THE CONFESSION OR CONFIDENCE WAS MADE TO HIM OR HER IN HIS OR HER 32 PROFESSIONAL CHARACTER AS SPIRITUAL ADVISOR. 33 (B) WHEN A MEMBER OF THE CLERGY HAS REASONABLE CAUSE TO SUSPECT THAT A 34 CHILD IS AN ABUSED CHILD BASED UPON ANY INFORMATION RECEIVED OTHER THAN 35 THROUGH A CONFESSION OR CONFIDENCE MADE PURSUANT TO PARAGRAPH (A) OF 36 THIS SUBDIVISION, THEN SUCH MEMBER OF THE CLERGY SHALL PROMPTLY MAKE A 37 REPORT AS REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION 38 NOTWITHSTANDING THE FACT THAT HE OR SHE MAY HAVE ALSO RECEIVED A REPORT 39 OF ABUSE THROUGH A CONFESSION OR CONFIDENCE MADE PURSUANT TO PARAGRAPH 40 (A) OF THIS SUBDIVISION. 41 (C) THE PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL NOT BE 42 DEEMED TO EXEMPT A MEMBER OF THE CLERGY FROM ANY OTHER REQUIREMENTS OF 43 LAW TO PREVENT THE PERPETRATOR FROM COMMITTING ADDITIONAL ACTS OF ABUSE. 44 3. NOTHING IN THIS TITLE SHALL BE CONSTRUED TO REQUIRE THE REPORT OF 45 INFORMATION BY A PERSON REQUIRED TO REPORT WHEN SUCH INFORMATION IS 46 OTHERWISE PRIVILEGED FROM DISCLOSURE BY LAW. 47 S 429-B. PENALTIES FOR FAILURE TO REPORT. 1. ANY PERSON REQUIRED BY 48 THIS TITLE TO REPORT A CASE OF SUSPECTED CHILD ABUSE WHO WILLFULLY FAILS 49 TO DO SO SHALL BE GUILTY OF A CLASS A MISDEMEANOR FOR THE FIRST OFFENSE, 50 A CLASS E FELONY FOR THE SECOND OFFENSE AND A CLASS D FELONY FOR THE 51 THIRD OFFENSE OR ANY SUBSEQUENT OFFENSE. 52 2. ANY PERSON REQUIRED BY THIS TITLE TO REPORT A CASE OF SUSPECTED 53 CHILD ABUSE WHO KNOWINGLY AND WILLFULLY FAILS TO DO SO SHALL BE CIVILLY 54 LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY SUCH FAILURE. 55 S 429-C. IMMUNITY FROM LIABILITY. 1. ANY PERSON WHO IN GOOD FAITH 56 MAKES A REPORT OF ALLEGATIONS OF CHILD ABUSE AS REQUIRED BY THIS TITLE, S. 1308--A 4 1 INCLUDING THOSE WHO IN GOOD FAITH MAKE A REPORT TO THE WRONG RECIPIENT, 2 SHALL HAVE IMMUNITY FROM CRIMINAL LIABILITY WHICH MIGHT OTHERWISE RESULT 3 BY REASON OF SUCH ACTIONS. 4 2. ANY PERSON WHO REASONABLY AND IN GOOD FAITH MAKES A REPORT OF ALLE- 5 GATIONS OF CHILD ABUSE AS REQUIRED BY THIS TITLE, SHALL HAVE IMMUNITY 6 FROM CIVIL LIABILITY WHICH MIGHT OTHERWISE RESULT BY REASON OF SUCH 7 ACTIONS. 8 S 429-D. REVIEW OF EXISTING RECORDS FOR ALLEGATIONS THAT A CHILD IS AN 9 ABUSED CHILD; DISTRICT ATTORNEY; PENALTY. 1. WITHIN THREE MONTHS OF THE 10 EFFECTIVE DATE OF THIS SECTION, ALL MEMBERS OF THE CLERGY SHALL: (A) 11 REVIEW ALL INSTITUTIONAL RECORDS WITHIN THEIR CONTROL AND ANY OTHER 12 INFORMATION THEY HAVE OBTAINED REGARDING ALLEGATIONS THAT A CHILD IS AN 13 ABUSED CHILD BY A MEMBER OF THE CLERGY WITHIN FIFTY YEARS PRIOR TO THE 14 EFFECTIVE DATE OF THIS SECTION; (B) REVIEW WHETHER THEY ARE AWARE OF ANY 15 OTHER ALLEGATIONS THAT A CHILD IS AN ABUSED CHILD ALLEGED TO HAVE BEEN 16 ABUSED BY A MEMBER OF THE CLERGY WHO REMAINS ACTIVELY IN THE SERVICE OF 17 A RELIGIOUS INSTITUTION, REGARDLESS OF THE DATE ON WHICH SUCH ALLEGATION 18 WAS MADE; AND WHERE SUCH INFORMATION OR RECORDS RAISE REASONABLE CAUSE 19 TO SUSPECT THAT A CHILD IS AN ABUSED CHILD, REPORT SUCH ALLEGATION TO 20 THE DISTRICT ATTORNEY. THIS SECTION SHALL NOT APPLY TO INFORMATION 21 OBTAINED THROUGH CONFIDENTIAL COMMUNICATIONS WITH CLERGY AND PRIVILEGED 22 UNDER LAW. 23 2. ANY INDIVIDUAL, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF 24 SECTION FOUR HUNDRED TWENTY-NINE-A OF THIS TITLE, REQUIRED BY THIS 25 SECTION TO REVIEW EXISTING RECORDS AND INFORMATION AND REPORT ALLEGA- 26 TIONS CONTAINED THEREIN WHO WILLFULLY FAILS TO DO SO SHALL BE GUILTY OF 27 A CLASS A MISDEMEANOR FOR THE FIRST OFFENSE, A CLASS E FELONY FOR THE 28 SECOND OFFENSE AND A CLASS D FELONY FOR THE THIRD OFFENSE OR ANY SUBSE- 29 QUENT OFFENSE. 30 S 3. This act shall take effect on the sixtieth day after it shall 31 have become a law.