Mandatory Reporting of North Carolina Sex Offenses

One of the questions I sometimes am asked is under what circumstances one must report sex abuse to authorities. This question has become much more common in light of the recent conviction of former Penn State football coach Jerry Sandusky on more than forty counts of sexual assault of minors. The scandal has made the issue of the safety of children more pressing for many Americans.

North Carolina imposes a general “duty to report abuse, neglect, dependency, or death due to maltreatment” of minors (N.C.G.S. Sec. 7B-301) and of disabled adults (N.C.G.S. Sec. 108A-102).

However, that duty is not accompanied by a penalty if a citizen (who has no particular duty associated with his or her position or profession) fails to report. In other words, failure to report will not, generally, result in punishment. (If you have questions about whether you have a duty to report, you should consult an attorney.) This duty to report carries with it a protection: a person who reports and who cooperates with investigating authorities (e.g., the Wake County District Attorney’s Office, the Raleigh Police Department, or Wake County Child Protective Services) and acts in good faith “is immune from any civil or criminal liability that might otherwise be incurred or imposed for that action.” In addition, good faith is presumed, which means that the person who was falsely accused of child rape or sexual assault has the burden of showing maliciousness which is ordinarily very difficult to do.

Important: the only people who are immune from this general reporting requirement are attorneys, as outlined in N.C.G.S. Sec. 7B-310 and only if that knowledge is gained by an attorney during his or her professional representation. In fact, the attorney is generally required to keep that information confidential by the State Bar’s ethics rules.

In addition to this general duty to report, North Carolina law requires certain classes of professionals to report knowledge of sexual assaults or rape of a child to law enforcement or Child Protective Services. In Raleigh, such reports are generally made to either the local law enforcement agency in the community where the incident may have occurred, or to Wake County Child Protective Services, which is a division of the county Health and Human Services Department. The failure to report for people in these special positions of responsibility can be criminal or civil liability.

For instance, school principals (N.C.G.S. 115C-288(g)) are required, when the principal has personal knowledge, a reasonable belief, or actual notice from school personnel that an act has occurred on school property involving assault resulting in serious personal injury, sexual assault, sexual offense, rape, kidnapping, indecent liberties with a minor, assault involving the use of a weapon, possession of a firearm in violation of the law, possession of a weapon in violation of the law, or possession of a controlled substance in violation of the law, to report the act to the appropriate local law enforcement agency.

In addition, physicians are required to report certain injuries, illnesses, and wounds (N.C.G.S. 90-21.20) but this does not include sexual assaults, unless the victim requests the matter be reported to police, unless the person is under the age of 18 and the physician or hospital believes the injury is the result of abuse.

In addition to these statutory requirements, professional licensure rules – for instance, >North Carolina’s Psychology Board (pdf) – explicitly remind practitioners of their general duty under N.C.G.S. 7B-300 et seq to report abuse, and can subject a licensed professional to conduct review if that person has failed to report.

It’s important to note that criminal and custody penalties may be imposed on family members – particularly parents or grandparents – who know of abuse and fail to report it. For instance, a parent may be charged of, at the very least, misdemeanor child abuse (a class A1 misdemeanor) for failure to take action or for repeatedly placing a child in a dangerous situation. A parent’s rights to custody may also be challenged if the county’s Child Protective Services believes that the parent has violated the duty to report or duty to protect the child. These are obviously very significant sanctions.

The area of mandatory reporting is complicated, so if you have questions about whether you have a legal duty to report – by which I mean, a duty that is enforceable by some penalty if you fail to report – it is important that you consult with a Raleigh criminal lawyer.

Even where the duty is unenforceable as a matter of criminal or licensure law, the duty may be enforceable by civil penalties, as Penn State University is now finding out as the victims of Sandusky’s conduct now seek to sue the institution for its failure to report or take corrective action during the decades over which this conduct occurred.

In some ways, this civil liability is the strongest incentive, particularly for a wealthy institution such as Penn State which will likely have to pay out millions of dollars in damages to the victims in these cases.

Posted in ,

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.