Reporting a sexual crime...

I received the following question from an LCSW in Florida…

I met with a 16 year- old female for a substance abuse evaluation. In the course of the evaluation, the client reported she was taken advantage by a male friend. She reported the male friend knew she was high on weed and pushed himself on her and started to touch her and had "his way with her." She would not elaborate more and stated she has not told anyone except for a close friend and does not want to tell her mother or anyone else. The incident occurred almost 2 yrs. ago and the male friend was 17 at the time. Do I have a duty to tell the parent or is this protected by confidentiality?

Disclaimer: I am a licensed clinical social worker, NOT an Attorney.  I state the Florida Statute to help clarify my opinion.  I am not giving legal advice.

The Facts:

·         16 year old female reports unwanted sexual contact with a 17 year old male

·         At the time of the unwanted sexual contact the female was 14 years old.

·         Currently 16 year old victim refuses to elaborate and has refused to give you permission to tell her mother or law enforcement authorities.

·         We assume the client’s statement “had his way with her” means there was some form of sexual contact.  The reason I use this wording is due to the state statute

.

This is not a simple and clear cut matter.  Let’s break it down.

The act in question was committed by a 17 year old male on a 14 year old female.  IN Florida that meets the statutory definitions of Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.

More specifically

800.04(4) LEWD OR LASCIVIOUS BATTERY.—A person who:

(a)Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or

(b)Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity

This statute defines its terms as:

800.04(1)(a) “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.

800.04 (1)(b) “Consent” means intelligent, knowing, and voluntary consent, and does not include submission by coercion.

800.04(1)(c)“Coercion” means the use of exploitation, bribes, threats of force, or intimidation to gain cooperation or compliance.

800.04(1)(d)“Victim” means a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer.

800.04(5)(d) An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In Florida the age of sexual consent is 18.

According to 8020.04(3)  IGNORANCE OR BELIEF OF VICTIM’S AGE.—The perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense in a prosecution under this section.

The way I read the statutes, I believe the 17 year old male has committed LEWD OR LASCIVIOUS BATTERY

Now a look at HIPPA.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a broad federal law that is in part designed to provide national standards for protection of certain health information.

As required by HIPAA, the federal Department of Health and Human Services (HHS) established regulations, which implement the federal law. These regulations are known as the Privacy Rule.

In general, the Privacy Rule prohibits health care providers from using or disclosing a patient's protected health information (PHI) without written authorization from the patient except for treatment, payment and health care operations.

* Under the general privacy rule, the information can not be released.

However, the Privacy Rule provides exceptions to this prohibition for a number of public policy reasons. Such exceptions include, but are not limited to, reporting certain injuries to law enforcement officials, reporting child abuse or vulnerable adult abuse, reporting the occurrence of certain diseases to public health officials, and complying with court orders and subpoenas.

* The victim is not an adult therefore no adult abuse and the 17 year old boy does not fit the definition of a caregiver, so there can be no child abuse.

Florida Statute 39.01(10)

“Caregiver” means the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare as defined in subsection (47).

Florida Statute 39.01 (47) “Other person responsible for a child’s welfare” includes the child’s legal guardian or foster parent; an employee of any school, public or private child day care center, residential home, institution, facility, or agency; a law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice; or any other person legally responsible for the child’s welfare in a residential setting; and also includes an adult sitter or relative entrusted with a child’s care. For the purpose of departmental investigative jurisdiction, this definition does not include the following persons when they are acting in an official capacity: law enforcement officers, except as otherwise provided in this subsection; employees of municipal or county detention facilities; or employees of the Department of Corrections.

States Rule

The HIPPA Privacy Rule provides an extensive list of permitted disclosures, however, where state laws provide greater privacy protections or privacy rights with respect to patients' PHI, state laws will apply, overriding HIPAA.

Florida has 2 statutes which address Sexual Battery reporting.  The first, Florida Statute 794.027 deals with “a person who observed the commission of the crime of sexual battery”. The second, Florida Statute 1012.799 deals specifically with instructional or administrative school personnel.

Neither of these statues fit the scenario given.

Now to the NASW Code of Ethics. 

No where in the code of ethics is the word “crime” used.  There is a requirement to report child abuse, but not sexual battery.  Since this is not child abuse there is no requirement for a mandated reporting.

In summary:

A) There appears to have been a crime committed here, however the victim is not willing to report.

B) There is no specific requirement I can find in statute that requires the clinical social worker to report the incident against the wishes of the client. 

C) HIPPA does not prohibit the disclosure, but Florida law appears more restrictive than HIPPA and appears to be the final authority.

D) The NASW Code of Ethics does not specifically address this issue.

My opinion:

As the treating clinician, you need to determine if disclosure against the client’s wishes, either to mother or the authorities, will have a negative impact on her recovery. Will it damage your therapeutic rapport with her?   The overriding issue here is to help her accept her current drug use and abuse and to assist her with healing.  Digging into this 2 year old issue may or may not assist you in helping her heal. 

You need to decide what is in the BEST long-term therapeutic interest of your client.  Then you need to document why you made that decision. 

If I were documenting the situation, my documentation would look like this.

“Client related a prior situation two years ago where she was a victim of sexual battery.  She refused to give me permission to disclose this information to anyone.  There is no current harm to the client from the perpetrator and the client shows no acute distress over the incident.  In my clinical opinion, it would be more appropriate to provide intervention for current problems and provide intervention to the previous incident only as needed to facilitate further clinical progress.  When and if client is ready to address the issue, it will be made a priority on the treatment plan.”

Please feel free to provide me with your opinion on the matter.

Adolescents and Sexual Behavior

I received the following question from Antonio Nunez, MSW, LCSW

“Social workers working with children and adolescents we often
become aware of behaviors hidden from the parents that place the
child/adolescent at some physical, psychological or legal risk.  For
example, sexual activity, criminal activities, truancy, theft, pregnancy
etc. What is our responsibility to disclose this confidential
information when the child is engaging in risky behaviors?”

NASW published a standard for confidentiality when working with adolescents:
It consists of 134 words...

NASW Standards for the Practice of Social Work with Adolescents

Standard 8. Confidentiality  Social workers shall maintain adequate safeguards for
privacy and confidentiality in their relationships with youths.  

Interpretation:
Respect for the client as a person and for his or her right to privacy underlies the social
worker–client relationship. Except for federal, state, or local legal and other overriding
requirements, the social worker will share information only with the informed and signed
consent of the youth, the family, or both. Although assurance of confidentiality enhances
the relationship and the willingness of the youth to develop and adhere to a case plan,
the youth should be advised that there are circumstances in which confidentiality cannot
be maintained. These situations may include

■ suspicion of child abuse or neglect, which requires that appropriate authorities
be notified
■ suspicion of danger to the youth or to others. In all such situations, the social
worker shall advise the youth of the exceptions to confidentiality and privilege,
shall be prepared to share with the youth the information that is being reported,
and shall appropriately address the feelings evoked.

HERE IS THE PROBLEM:
You are working with an adolescent (16 year old) male who admits to having
unprotected sex with two different female partners.  He is not concerned about
pregnancy or sexually transmitted diseases.

Scenario 1: You do not know the names of the females, but are familiar with the parents
feelings and they are opposed to sex outside of marriage.

Should you tell the parents?

The implications of adolescent sex outside of marriage are enormous.  Unplanned
pregnancy can alter the life of both the baby's father and mother as well as their
families.

There are many parts which need to be explored...

It is almost necessary to use a flowchart to figure out the best possible decision.
The first question I think we need to ask is whether or not disclosure to the parents will
result in the adolescent refusing to see or talk to you again.

Will it destroy your therapeutic relationship?

If it will not significantly interfere with your relationship, then you would be more likely to
tell the parents.

Next, you would have to make a determination of how honest the youth was about his
admissions.

Was he lying?

Was he exaggerating?

Can you trust his story?

If you feel he is exaggerating for secondary gain, you should be more likely to report to
his parents...

How will the parents handle the situation?

Will they become irrational, threatening, or attempt to stop the youth from
involving himself in this behavior and cause more problems with the youth?

The more problematic the parents reaction to the news, the more likely you would be
not to report.

The second situation enumerated in the NASW Standard for Adolescent
involvement gives the following advice, "suspicion of danger to the youth or to
others. In all such situations, the social worker shall advise the youth of the
exceptions to confidentiality and privilege, shall be prepared to share with the
youth the information that is being reported, and shall appropriately address the
feelings evoked. "  

This brings up more questions...

Is the unprotected sex with two different females a danger to the youth?

You could argue: YES.

What if he gets a sexually transmitted disease?
What if he gets a girl pregnant?
What if one of the girls are violent and jealous and upon finding out about
the other, seek to do him harm?
What if pregnancy occurs and the father or mother become enraged and
threaten or attempt to attack the youth?
What if the parents push for "Statutory Rape" charges and the youth must
spend the rest of his live registering as a sex offender?

Surely, this type of behavior has the potential for harm.

Since all of these situations are hypothetical, do you need to report issues that have not
happened?

Now let’s take a sideways look at the issue...

A new scenario...
Let’s say one of the girls becomes pregnant, and during the exam it is discovered that
she has a form of Herpes Simplex (a life-long, incurable disease). The girl’s parents
then file statutory rape charges against the youth.  Both parents find out you knew about
the sexual behavior and both feel if you have given them the information, they may have
been able to avert this personal and family disaster.

The parents of the girl file a complaint against you for withholding information.

They feel if you had provided the information to them or the other parents they could
have avoided the disease and the pregnancy, which will not de-rail the girls college
plans and the parents retirement plans.

The parents of the boy file suit against you and file a complaint stating if you have told
them, they could have stopped the behavior and their child would not be facing sexual
offender charges and a life-time if registering as a sex-offender everywhere he goes.

Your response to these issues is...

Your liability in this situation revolves around your not allowing other people in the life of
this youth to have sufficient information to alter the possible outcomes.

Now the other side of the coin...

Your primary goal when working with any client is to empower, assist and help them
achieve their maximum potential.

Did withholding this information assist you in empowering the client?

In some situations if might have seemed sound, but the outcomes,
hypothetical of not, could destroy your career and your ability to help
others in the future.

Given this situation I would probably tell the youth's father and encourage them to locate
and tell the parents of the unknown females.  I would explain my decision to the youth
prior to telling the parents and I would allow them the opportunity to tell their parents,
with me there or not.  I would justify this with a client's right to self-determination.

They have the right to determine if they wish to come back to see me
again or not.

They have the right to be angry at me or not.

The primary desire not to tell seems to be rooted in the fear that the therapeutic
relationship would be damaged and therefore the youth would not come back for
services.

In reality, the youth may not come back for services, WITH YOU...but you are not the
only individual that can assist the youth.

The destruction of your relationship with the youth may well be a catalyst that sends the
youth forward to better decisions and allows them to grow.

Your therapeutic role may have been limited to setting them up for their next therapist,.
One of the most difficult things about counseling is the realization that you may never
know the extent to which you have helped most client's or whether you intervention was
ultimately useful in their future.

Like it or not, counseling requires a leap of faith by the therapist as well as the client.

16-Year-old discloses substance abuse

Question:
If a therapist is working with a 16 yr old and they disclose substance
use, do we have to keep it confidential or is there a duty to warn the
parent?


Answer:
Given the basic information there is no Tarasoff duty to warn the parents.  The short
answer is, there is no ethical violation attached to telling the parents. You can disclose
the substance use to the parents simply because the child is under the age of 18 and
the substance use is illegal.

One issue you have to wrestle with involves balancing the drug use against how the
parents will respond, as well as how the client will respond to the disclosure and
whether they will continue to work with you after this incident.

Your question brings up many issues. The first issue that needs to be considered is the
way the 16 -year-old client came into therapy. Are they under court order? Did they
seek help on their own? Were they pushed into the sessions by their parents?
The second issue involves the type of substance that is abused, as well as the
environment surrounding its abuse.

First, let’s tackle the type of substance abused.  If it is marijuana or alcohol, which have
a much less damaging physical toll on the body, then disclosure may be less needed.  If
it is something more serious like cocaine, crack, methamphetamine, or inhalants, all of
these are possibly life-threatening and require immediate intervention. There would be a
greater need to report these to the parent.

Second, let’s look at the environment of the abuse.  If they are abusing in their room or
back porch, there is relatively little chance of damage to the client or others.  This would
allow you to argue against a need for disclosure.  If they use/abuse were occurring in
public, in cars being driven or in other areas, then the possibility that someone else
could be hurt raises the stakes and makes the need to report much greater.

This situation may invoke some of the concepts around Tarasoff, even thought there is
no chance of identifying a specific person who could be dead.

Any substance abuse which could cause imminent harm or danger to the client probably
needs to be reported to the family. The concern again is the risk of having the family I'll
come down on the client in such a way that they do not come back to therapy for you, or
they refused to disclose in therapy.

One of the things, I would think would be good practice, is to let them know you are
concerned and want to notify the parents.  You might sit down with your client and
explain to him your concern.  Then let him know notifying his parents or you have the
option of notifying his parents. You then state that you would prefer that he notified his
parents and that you will set with him while he talks to his parents about the drug use.
There also many over-the-counter drug tests that can be used in the home by the
parents. Cost is around $25 a test. It would not be a violation of confidentiality if you
simply reach out to the parents and said, “I think it may be beneficial to go down to Walgreens and buy a home drug test that tests for marijuana, cocaine and amphetamines, etc. and drug test your child tomorrow morning when he gets out of bed without telling him you're going to do it.” They will get the information they need on their own and it will have less chance of jeopardizing the therapeutic relationship between
you and the client.