THE BLOG
12/01/2011 04:35 pm ET | Updated Jan 31, 2012

Making the Right Call: When Protecting Kids Is Good Business and Good Law

This post was co-authored by Katherine Daniels and Noreen Travers

The Penn State sexual abuse scandal provides an important opportunity to look at the assumption of risk entities take on when they work with kids yet fail to have strong child protection policies in place. When the law is weak, implementing best practices can prevent tragedy and be good for both business and reputation.

All fifty states must have child abuse reporting laws by federal mandate. Two models exist -- states where everyone must report suspected child abuse and states where only certain people must report, but everyone else can report if they want to.

In states where everyone must report, the law is aligned with what most of us believe is our moral imperative. In states such as Delaware, Florida, Maryland, New Mexico, North Carolina, Rhode Island, Texas, New Jersey and Tennessee, everyone has a legal duty to report as soon as they have good reason to believe that a child is being abused. All of these states provide a hotline to report concerns to state authorities. All of these states also provide legal immunity to people who report suspicions of child abuse so long as they use good judgment and have a valid reason to make a report. In many states, a person who willfully fails to report suspected child abuse can be charged with a crime, typically a misdemeanor, carrying punishment of a fine and imprisonment.

But, In other states like Pennsylvania, Arizona, California, Connecticut, Georgia, Illinois, Louisiana, Massachusetts, Nevada, New York, Pennsylvania, Virginia and Washington, only certain people have a legal obligation to report suspected child abuse. These typically include professionals, such as health care providers, coaches, teachers and school officials, social workers and childcare workers, who regularly interact with children under the age of 18 in the normal course of their work. Other people are encouraged to report, but have no legal obligation to do so.

In Pennsylvania, a mandated reporter only has a duty to report if the child suspected of being abused is under the "care, supervision, guidance or training" of the mandated reporter or his employer. Further, if the mandated reporter is an employee of a "public or private institution, school, facility or agency," the reporter must notify the person in charge of the institution, and the person in charge then assumes the legal obligation to report to state authorities.

While the duty to tell your supervisor sounds like it might be enough, the problems begin when you start ripping apart what it means to "directly supervise" a child. Penn State likely viewed Assistant Coach Jerry Sandusky's charity as not directly under its supervision even though it used the campus for its activities.

The Penn State tragedy brings into high relief the problem with Pennsylvania and other state reporting statutes. Under Pennsylvania law, Head Coach Joe Paterno was a mandated reporter who, at least on occasion, interacted with children under the age of 18 in the normal course of his job. The weakness in the statute lies, however, in that no protection is offered to the children who may have been technically outside of Paterno's immediate supervision and guidance as they were not under his direct care.

It is distinctly possible that Penn State determined that it did not have a legal obligation to report to state authorities because the child involved was not considered under their direct supervision or care. But even if Penn State followed the law, it still failed to protect not only the children who were allegedly abused by Sandusky but also other minors on its campus that it clearly had a legal obligation to protect.

Didn't Penn State officials have a moral obligation to take action? And wouldn't that moral obligation also offer reputational risk protections that are clearly good for business? Obligated or not under Pennsylvania law, the decision not to report to law enforcement or child abuse authorities created a moral tsunami that has outraged millions and destroyed lives and careers. Penn State has a black eye that will take a lot of time to heal.

Had Pennsylvania's reporting laws offered stronger protection for children and mandated everyone to report suspicions of child abuse not just to their supervisors, but to the appropriate legal authorities, Michael McQueary would have been compelled to report the sexual abuse incident he witnessed in 2002 and Penn State officials would have been required to advise him of his duty. Had this been the case, the University would have saved an unknown number of children from the horror of sexual abuse and brought a sexual predator to justice. Penn State would also have been saved from the enormous reputational damage it has now suffered, which may have been what officials were trying to protect all along.

Penn State clearly did not have a well developed protocol in place to properly protect the children in its care, regardless of what the statute required. Because state reporting laws are often poorly drafted, we cannot rely on them solely for guidance.

When do we decide to take steps beyond what the law requires and can that really be good for business? Penn State and other institutions should have an internal child protection policy that, at a minimum, aligns with state law and ideally would require a higher standard of care. Best practices dictate that schools, religious institutions, sporting and scouting organizations and other groups that interact with children have an internal reporting protocol and specially trained employees tasked with the responsibility of evaluating reports of abuse, filing reports and tracking the outcome in coordination with legal counsel.

There is a tremendous opportunity to learn from the horrific allegations coming from the Penn State incident to better protect our children from pedophiles who use their reputation and professional standing to sexually abuse children.