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Review 3 of "Do I Report This? Understanding Variation in the Content of State Mandatory Reporting Laws"

...Qualitative...Criminology

Published onJan 05, 2021
Review 3 of "Do I Report This? Understanding Variation in the Content of State Mandatory Reporting Laws"

Vote: Publish pending minor changes


[For votes to count, referees must reasonably explain why they voted as they did. Thus, please explain your vote. If you voted to publish pending minor changes, specify each change, why it is needed, and, possibly, how it should/could be done.]

I liked the paper. It should be published. I’m recommending that The Journal of Qualitative Criminal Justice & Criminology publish the paper with minor changes. Although my review consists of 6 pages of comments, I raise minor issues that need clarification, so the authors should be able to address these issues with minimum trouble. My comments are not substantive, even though I am perplexed about why some of the data reported in the text do not appear to match what is reported in some of the tables. Nonetheless, I believe that most of the issues I raise should be relatively easy to fix. 

In the first paragraph, the authors need to cite sources when discussing the Jerry Sandusky affair.  The Sandusky scandal occurred a decade ago, and the authors should document it.

E.M. Kelly. 2013. The Jerry Sandusky Effect: Child Abuse Reporting Laws Should No Longer Be “Don’t Ask, Don’t Tell.” University of Pittsburg Law Review, 75(2), 209-234.

R. Steinbuch. 2012. Four Easy Pieces to Balance Privacy and Accountability in Public Higher Education: A Response to Wrongdoing Ranging from Petty Corruption to the Sandusky and the Penn State Tragedy. Loyola of Los Angeles Law Review, 46(1), 163-220.

In the first paragraph, the authors say, “Subsequently, educational institutions and governmental agencies began to expand only their interpretation of mandatory reporting laws.”  Is the word “only” necessary? It does not seem to fit with the rest of the sentence.   Perhaps the sentence needs rewording (“Subsequently, educational institutions, prosecutors, courts, judges, and governmental agencies began to expand their interpretation of mandatory reporting laws.”)?  (words underlined are added to the sentence)

In the first paragraph, the following sentence needs to be reworded, “The implementation of this change, then, required no revision to policy due the ambiguous language used mandatory reporting statutes at the time.” The sentence should say, “The implementation of this change, then, required no revision to policy due to the ambiguous language used in mandatory reporting statutes at the time.” (words underlined are added to the sentence)

The last sentence of the first paragraph says the reinterpretation of the mandatory reporting laws after the Sandusky case “may have extended legal vulnerability to individuals who work with adults that experienced victimization in childhood.” It is not at all clear what the authors mean with this statement. Without first telling readers what changes were made or how the laws were reinterpreted, it is not clear how legal jeopardy was enhanced. The increased legal jeopardy becomes clearer later in the paper, but at this early point in the paper, I think the authors should make it clearer.

In the second paragraph of the paper, what do the authors mean by “reinterpretations?”   Who is/are doing these “reinterpretations?” Who is reinterpreting what?

Again, in the third paragraph of the paper, the authors say, “In light of recent reinterpretations of mandatory reporting laws,…”  Again, readers do not know who is doing the reinterpretations.

In the third paragraph of the paper, the word “reinterpretation” is used several times, but it is not clear what this means. In particular, the last sentence of this paragraph says, “This analysis, then, not only serves to raise awareness about potential shifts in legal obligation to report reinterpretation, but we also hope to contribute to scholarly discourse about the tradeoffs surrounding ambiguity in public policy.”  I don’t know what the authors mean when they say “…potential shifts in legal obligation to report reinterpretation,…”  This needs to be reworded.

With respect to “reinterpretation” of the legal obligation to report, aren’t prosecutors (both city and county), courts, and judges (and perhaps the Attorney General of a state) the primary entities that really matter, with respect to legal jeopardy of mandatory reporters?

In the first paragraph under the heading, “The Jerry Sandusky Trial and the (Re-)Interpretation of Mandatory Reporting Laws,” the authors say, “During the investigation into Sandusky’s offenses, it came to light that other members of the Penn State football staff and higher-ranking administrators had been made aware of Sandusky’s sexually abusive behavior towards the young boys.”  The word “towards” should be changed to “toward.” Later in this same paragraph, the authors say, “This case brought public attention to mandatory reporting, which in turn may have motivated educational institutions and governmental agencies to revisit their states’ mandatory reporting laws.”  I would change the wording of this sentence to say, “This case brought public attention to mandatory reporting, which in turn may have motivated educational institutions and governmental agencies to revisit their interpretation of their states’ mandatory reporting laws.” (words underlined are added to the sentence)

In the third paragraph under the heading “The Jerry Sandusky Trial and the (Re-)Interpretation of Mandatory Reporting Laws,” the authors say, “For example, because they are mandatory reporters in many states, grade school teachers potentially face an ethical dilemma between teaching students the importance of maintaining confidence, while reporting student accounts without the student’s permission.” Since grade school-aged children are underage and are minors, is it really an ethical dilemma for teachers to report suspected abuse once it is made known to them? Can a grade school-aged student even possess an expectation that the teacher will “maintain[] confidence” (or keep quiet) once the teacher suspects child abuse? It seems to me that the ethical problem is more pressing if the teacher suspects abuse and says nothing.

In the first paragraph under the heading, “The Intersection of Mandatory Reporting and Criminal Justice Teaching and Research,” the authors say, “In some states, even though disclosed to us by adults, mandatory reporting laws require us to report past childhood victimizations to prevent continued offending with new victims.” I would not use the word “us” to refer to criminal justice and criminology faculty members. Instead, I would use the word “professors” or “college faculty members.” Again, in the second and third paragraphs under the heading, The Intersection of Mandatory Reporting and Criminal Justice Teaching and Research,” the authors use the words “us,” “we,” and “our.” In these instances, I recommend that the authors use “college faculty members” or “professors” instead of “us,” “we,” and “our.”

In the third paragraph under the heading, “The Intersection of Mandatory Reporting and Criminal Justice Teaching and Research,” the authors say, “After this highly publicized trial, however, states may consider professors, lecturers, and researchers to be mandatory reporters, creating a dilemma in which we must choose between our legal responsibilities as citizens and our ethical obligations to privacy and confidentiality.” I would delete the word “states” and replace it with “prosecutors” or “courts/judges” or perhaps “state legislatures.” Or, perhaps reword the sentence to remove “states” and replace it with “prosecutors, courts, judges, or state legislatures…”

In the fourth paragraph under the heading, “Analysis,” the authors say, “Our decision to restrict text segments to statutory subsections meant that, in later phases of the analysis (wherein we condense and interpret our codes into broader (sub)categories), our findings would be less biased towards states that used certain words more frequently (e.g., “reasonable”).” I would replace the word “towards” with “toward.”

In the sixth paragraph under the heading, “Analysis,” the authors say, “Further, the timing of danger to children category was restructured to include four subcategories: immediate danger (“is” a danger), past danger (“has been” in danger), ambiguous danger (unclear), and statutory of limitations.”  It is not proper to say “…statutory of limitations.”  The correct phraseology is “statute of limitations.”

In Table 2 under the “Subcategory Description” theme, in the second cell down, the authors say, “The suspected maltreatment poses some more immediate danger to children.” Is this correct? In particular, are the words “some more” correct?

In Table 2 under the “Subcategory Description” theme, in the fourth cell down, the authors say, “The limit to how long one’s legal expectation to report applies.” Can the authors rephrase this sentence? This is a rather inelegant way to describe the statute of limitations.

In Table 3 under the “Representative Segment” theme, in the eighth cell down, the authors say, ““Any dentist; optometrist; dental hygienist…or any other medical or mental health profession…” (North Dakota 50-25.1-03(1)).” Should the word “profession” be “professional?”

In the first paragraph in the first sentence under the “Reasonableness” in the Law” heading, the authors say, “There has been a long-standing debate about the impact of discretion in criminal justice policy.” The authors provide no citation after this sentence.  I would cite two sources here. S. Walker. 1993. Taming the System: The Control of Discretion in Criminal Justice, 1950-1990. New York: Oxford University Press. M.R. Gottfredson, & D.M. Gottfredson. 1988. Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion (2nd ed.). New York: Springer Science.

In the second paragraph under the “Reasonableness” in the Law” heading, the authors say, “For example, in Ohio, qualify reasonable cause as a suspicion that would “cause a reasonable person...to suspect” some form of child maltreatment (Ohio §2151.421A1a).” This sentence seems to be misworded. It would be clearer if it read something like, “For example, Ohio qualifies (or perhaps the word “defines”) reasonable cause as a suspicion that would…”

 In Table 4, it is not clear what the numbers assigned to the states represent. For example, California has “7” “reasonable suspicion” and “1” “reasonable person.” What do these numbers mean? The authors need to provide some clarification or explanation about what these numbers represent.

In the first paragraph directly below Table 4, the authors say, “For example, Alabama required any person to report suspect child abuse or neglect “...if such person has reasonable cause to suspect that a child is being abused or neglected” (Alabama §26-14-4).” The first use of the word “suspect” should be “suspected.” The sentence should read, “For example, Alabama required any person to report suspected child abuse or neglect “…if such person has reasonable cause to suspect that a child is being abused or neglected” (Alabama §26-14-4).” (words underlined are added to the sentence)

In the third paragraph directly below Table 4, the authors say, “How state officials and law enforcement define reasonable suspicion could change with public sentiments or heightened media attention.” I raised this point earlier, but it seems to me that it is not how “state officials” define “reasonable suspicion.” It is more precise to say how prosecutors and courts/judges define reasonable suspicion.  I agree that how “law enforcement” defines reasonable suspicion is relevant, but the words “state officials” are not precise enough and too vague. It would also be appropriate for the authors to say how a state’s “Attorney General” would define reasonable suspicion instead of saying “state officials.”  

In the last sentence of the third paragraph directly below Table 4, the authors say, “Further, reasonable suspicion may also depend on how strongly state officials adhere to belief that “once a sex offender, always a sex offender” as was the case of the prosecutor in the Sandusky case.”  The word “the” needs to be inserted before the word “belief,” so the sentence should read, “Further, reasonable suspicion may also depend on how strongly state officials adhere to the belief that “once a sex offender, always a sex offender” as was the case of the prosecutor in the Sandusky case.”  (words underlined are added to the sentence)

In the fourth paragraph directly below Table 4, the authors say, “This has the potential to create obstacles to effective implementation of the policy as intended by policymakers, which in turn threatens the consistency and accuracy of reporting within jurisdictions.” I think it would be more precise if the authors used the word “law” instead of “policy” and used the word “lawmakers” or “legislatures” instead of “policymakers.” After all, the authors are discussing statutes, which are made by lawmakers in state legislatures. “Policymakers” include a much broader array of elected officials (i.e., sheriffs) or appointed public servants (i.e., police chiefs) that include groups of people who do not make the laws.  But, the authors are talking about laws and statutes made by legislators or legislatures. 

In the first sentence in the first paragraph under Table 5, the authors say, “First, 17 states used language that seemingly required that a child be “currently” experiencing abuse to require a report.”  I want to make 2 comments about this sentence and what is reported in Table 5.  One, the number 17 does not match Table 5, which reports 22 states require a “child ‘is’ currently in danger.” Two, the phraseology in the text of “…a child be ‘currently’ experiencing abuse…” has a different meaning than the phraseology in Table 5, which says “child ‘is’ currently in danger.” Please clarify. Is “a child be currently experience abuse” the same concept as “child is currently in danger?”  If so, say so.  If not, why is what is reported in the text different than what is reported in the table? There needs to be more explanation (perhaps a footnote or note under the table) for clarification.

In the last two sentences in the first paragraph under Table 5, the authors say, “In these cases, the reference to a child that is being mistreated indicates a present (or imminent) danger to the child. Under such statutes, maltreatment that occurred in the past would carry with it a legal obligation to report.” In the first sentence, the point is “a child that is being mistreated.” In the second sentence, the point is about a child that was being mistreated. In this context, how can one be mandated to report for a child that is being mistreated and also be mandated to report for a child that was mistreated? One does not necessarily follow the other.  Please clarify. There needs to be more explanation (perhaps a footnote or note under the table) for clarification.

In the second paragraph under Table 5, the authors say, “Second, 23 states allowed for a longer and less defined period of time for the abuse (i.e., the child “has been” abused).” Why does the 23 states mentioned in the text not match the 28 states mentioned in Table 5 under “child has been in danger?” And, why in the text do the authors say, “has been abused” and in Table 5 say, “child has been in danger?” Are these different concepts? Is the different wording intentional? It is confusing. There needs to be more explanation (perhaps a footnote or note under the table) for clarification.

Then, two sentences later in the second paragraph under Table 5, the authors say, “In these states, the use of “has been” in the law effectively expands the time period in which the child maltreatment occurred indefinitely, including both immediate and historical cases of child abuse.” But, in Table 5, when duplicates are eliminated, the sum of the states where a “child is currently in danger” and where a “child has been in danger,” is 43, not 23.  Please clarify.

In the third paragraph under Table 5, the authors say, “Finally, ten states defined the immediacy of danger ambiguously, which created problems with clarity in the wording of the laws.” But, Table 5 says 7 states are ambiguous, not 10. Please clarify.

In the fourth paragraph under Table 5, the authors say, “Although the primary difference between the expectation to report in “current” and “past” language states may seem semantic, it is essentially the difference between “has been” and “is” after all, this distinction may allow for great discretion in the interpretation and implementation of the law.” I believe this sentence needs additional punctuation. As it currently is written, it reads awkwardly. An easy fix would be to put a semi-colon after “after all.” So, the revised sentence would read, “Although the primary difference between the expectation to report in “current” and “past” language states may seem semantic, it is essentially the difference between “has been” and “is” after all; this distinction may allow for great discretion in the interpretation and implementation of the law.”

In the two sentences directly above Table 6, the authors say, “Examples of common exceptions included clergy-member (31 states) and attorney-client (23 states). However, twelve states did not identify any exceptions and only two states explicitly prohibit any exceptions to mandated reporting.” Yet, Table 6 says “clergy-patient” 22, “attorney/advocate-client” 16, “none stated/not addressed” 19, and “no privileges” 3.  Why don’t these numbers Table 6 match what is reported in the text?  More clarification is needed.

In the paragraph directly above the Implications heading, the authors say, “Conversely, in states that use a past immediacy of danger, faculty may be legally obligated to report instances of child maltreatment that are decades old regardless of the victim’s wishes, though this obligation may depend on the state’s interpretation of this language.” I raised this issue in other places in this review. My concern focuses on “…the state’s interpretation…” I would use more precise language, such as prosecutors, the state’s Attorney General, or courts or judges instead of saying “the state’s interpretation.”

In the first sentence in the first paragraph under the Implications heading, the authors say, “Professors, administrators, and staff at institutions of higher education in the 38 states that do not explicitly consider college faculty to be mandatory reporters should consult institutional lobbyists to determine the application of mandatory reporting laws to teaching and research at colleges and universities.” I would think a faculty member would be on more solid ground by consulting the university’s attorney or legal counsel at the system-level instead of “institutional lobbyists.” I don’t believe that faculty members would even know who the “institutional lobbyists” were at their university. If a faculty member becomes aware of previous child maltreatment of a student or colleague, I would think the faculty member’s department chair and dean would be the first place to seek advice.

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