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

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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.