A member of the legislature has asked us to ask prosecutors about the current statute on failure to report child abuse (Family Code sec. 34.01). The legislator wants to know, in light of news events about clergy members and sexual abuse of children, whether Texas' statute is an effective tool for prosecutors to use.

For instance:
* Should the penalty be increased?
* Should clergy members be specifically enumerated in the law as having a duty to report that is different (over and above) the general duty to report?
* Any other changes to procedural rules (statute of limitations, privileges) that would be helpful?

Thanks for your input!

I think you mean 261.101 & 261.109.

Yeah, yeah, yeah. Somewhere in the Family Code, right???

(That's what I get for relying on Lindsey Roberts for a cite rather than looking it up.) (Not to excuse my laziness by blaming someone else or anything.)

Seriously, thanks David.

Lindsey offers up that "it USED to be 34.01." Just so you know.

As soon as Eric leaves, the legal research goes to hell. Coincidence??

Diane, we've been trying to use Family Code Section 261.202, which abrogates all privileges but attorney-client privilege, in child abuse prosecutions for the last several years. The Dallas Court of Appeals issued a couple unpublished opinions upholding the application of the statute to priest-penitent communications, and Brazos County got a published opinion last year, Bordman v. State, 56 S.W.3d 63 (Tex. App.--Houston [14th Dist.] 2001, no pet.).

It might be helpful to us if it were more clear that 261.202 applied to criminal prosecutions and/or if a similar abrogation were included in the Code of Criminal Procedure. Of course, trying to enhance the status quo in our favor might give the other side an opportunity to accomplish something bad.

In my opinion, failure to report child abuse being a misdemeanor is not enough. I'm certainly not for making everything a felony (we're busy enough), but if Cruelty to Animals and Evading can be felonies, I think concealing information that a child is being abused and thus, allowing it to continue, is worse. I've seen 2 cases in the last year where mom knew her daughter was being sexually abused by dad or stepdad, and did nothing.

Au contraire, Bud. It might SEEM like our research has gone to hell since Erik left. I can see how you'd think that if you didn't analyze the situation very deeply. Actually, think about what Lindsey and I accomplished with our cite(s) on this thread: (1) We allowed a very valued TDCAA member, David Curl, to feel important (and he IS important) by providing the correct cite. (We actually knew it all along -- just wanted to make sure you were all paying attention.) (2) We provided some invaluable prior citation information by giving you the cite to the prior version of the law. Who knows when that might come in handy??

Erik Schmerick. We've got it covered like a ... well, more like a handkerchief than a blanket. You're right. We actually miss Erik terribly.

And John, thanks for your input. That's exactly the sort of thing we want to go back to tell the legislature, so any of the rest of you with similar (or different) experiences, please chime in if you can.

y'all are making me blush here.

It seems to me that we ought to extend the statute of limitations as well, perhaps to the period set out for the offense that was committed. If the legislature has recognized in CCP 12.01(5) that victims of certain sexual crimes may not come forward until they reach majority, it seems only logical that we should still be able to prosecute adults who knew about the abuse and were, at lease implicitly, responsible for the case not getting handled or the child not being protected. This is especially true when the abuse continues due to the non-reporting.

With regard to the penalty, don't let 'em make it a state jail felony, it ought to be third degree. I'd argue that allowing this sort of abuse by failing to report is an act of violence in much the same way that the abuse itself is violent.

[This message was edited by John Rolater on 05-10-02 at .]

Thanks, Jane. That's a good point -- comparing types of offense at the same level is a great argument to make to legislators. Save up those horror stories, because that's exactly the kind of thing they'll be wanting to hear.

any need to change the language of FC 261.019..."a person commits an offense if the person has cause to believe that a child's welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter."

sounds good and broad to me, any problems in application that we need to know about and can fix?

Jane, we have used PC22.041 Abandon/Endanger a Child with parents who have not protected their children from sexual predators. Most of the cases have been against step-parents or new boyfriends, but last week we indicted the mother after she ran off with th victim and natural father/abuser. Obviously we do not use this in all cases, but if the facts are bad enough to warrant this prosecution.