The Case for Eliminating Mandatory Reporting Laws for Competent Adult Victims

The Case for Eliminating Mandatory Reporting Laws for Competent Adult Victims

Mandatory reporting laws for competent adult victims[1] of sexual assault and intimate partner violence, which require healthcare providers to submit a report to police when they have treated such patients, may seem beneficial at first glance, but can significantly harm survivors. Such laws can endanger survivors, retraumatize them, infringe upon their autonomy, violate patient confidentiality, and create barriers to care. Additionally, these laws further entrench police in our society at a time when many activists and members of marginalized communities have called for divestment away from policing. This Blog argues that mandatory rape and injury reporting laws for competent adult victims must be eliminated, or at least reformed.[2]

Mandatory reporting laws differ from state to state. In California, health practitioners are required to report if they treat a patient for a physical injury that is the “result of assaultive or abusive conduct,” which includes sexual assault, rape, and battery. California Penal Code § 13823.11 outlines minimum standards for treating victims of sexual assault or attempted sexual assault, including a requirement that a report be made to law enforcement. Under this law, although the physician must obtain consent to perform a physical examination, conduct treatment, and/or collect evidence, consent is not required to make a report to law enforcement. Massachusetts requires that healthcare providers or managers of hospitals and similar institutions report cases of rape or sexual assault to law enforcement, but stipulates that the report should not include the victim’s “name, address, or any other identifying information.” Other states require the reporting of certain types of injuries, injuries resulting from a criminal offense, or injuries from particular crimes, which may include rape and/or impact rape survivors.

Survivors are often subjected to an increased risk of violence when healthcare practitioners submit reports to law enforcement without the survivors’ consent. In a 2005 survey of sixty-one survivors of domestic violence or sexual abuse, only one believed that medical providers should notify police when survivors seek treatment. The rest of the participants thought that reporting should not be mandatory unless the system better protects and promotes the safety of survivors. Most of the women in the study saw a health practitioner for injuries related to the violence that they experienced, but lied about how they became injured, in part out of fear that the police would be notified. Reporting the violence, they believed, could endanger their safety by causing their abusers to retaliate. Their fear was understandable—studies show that for domestic violence survivors, violence can increase when they seek help. Mandatory reporting unnecessarily puts them in harm’s way without allowing them to make the risk calculus themselves.

Not only are survivors at risk of violence from their original perpetrators, but mandatory reporting laws can subject them to additional violence at the hands of police. The second most common type of police misconduct after excessive force is sexual misconduct. From 2005 to 2013, police officers in the U.S. were charged with forcible rape 405 times, forcible fondling 636 times, and forcible sodomy 219 times. Some police officers specifically prey on young women, domestic violence survivors, women who are involved in the sex trade, and others who the officers don’t think will speak out. Many officers who are accused of sexual misconduct have been able to remain on the force, with some just moving from one department to another. Furthermore, in one study, 40 percent of police officers admitted to behaving violently towards their spouses and/or children. Other studies have found that the rate of domestic violence in police families is between 22 and 41 percent, compared to 10 percent in the general population. Requiring reporting to law enforcement can thus also alert a police officer who is an abuser, as well as their co-workers, that the victim was seeking help. This can lead to retaliation or additional harm for the survivor.

There are other reasons to avoid police involvement in these cases. Recently, calls for prison and police abolition have garnered more mainstream attention as society has grappled with how to address repeated instances of police violence. My call to eliminate mandatory reporting laws is partly grounded in an abolitionist perspective that prioritizes reducing the involvement of police in our lives rather than increasing and further entrenching it. Mandatory reporting laws cement the role of police in the response to intimate partner abuse and sexual assault, even when that role might be better filled by social services providers or mental health professionals.

Mandatory reporting laws also compound the trauma of the legal system, which frequently fails and retraumatizes survivors. Only about five out of every one thousand sexual assaults result in a felony conviction. Survivors indicate that they are disappointed by the response of the criminal legal system because police officers frequently neglect to take their cases seriously, prosecutors fail to pursue charges, and judges decline to give meaningful sentences to convicted defendants and/or enforce protective orders. The legal process further revictimizes survivors by requiring them to endure interviews, depositions, direct examinations, and cross examinations, where their experiences are questioned, undermined, and downplayed, and where they are often blamed for their own assault or abuse. Mandatory reporting laws force many survivors to start or go through the legal process against their will. It is unfair to compel survivors to take part in a system that regularly makes things worse for them instead of better.

Additionally, reporting instances of sexual assault and intimate partner violence against the will of survivors violates their autonomy. The perpetrators of such violence have already violated the survivors’ autonomy by forcing them to have sexual contact or by using physical violence to control them. When medical professionals report instances of violence to police over the survivor’s objection, that again violates the survivor’s consent, which can retraumatize survivors who are already in a vulnerable position. Survivors emphasize that they should be able to decide for themselves whether to go to the police. As Camonghne Felix, a rape survivor and prison abolitionist, states, “No one really asks a survivor what she wants. When a woman is raped, it becomes an assault on the state, not the person. She could decide that she would rather not pursue charges and the state can decide to move forward anyway, without her consent.” Felix explained that after she told her mother that her cousin raped her, her mother called the police. Felix was then put through the additional trauma of an investigation and of believing that she was responsible for her cousin’s incarceration, even though he was ultimately incarcerated for another offense. Mandatory rape reporting laws forcefully involve the police and carceral system even when it is against the wishes of a survivor, violating their autonomy and creating additional trauma.

Mandatory reporting laws also implicate significant concerns around patient confidentiality. Some cases receive media coverage, which can cause survivors to feel guilt, shame, and embarrassment about their assault, and potentially subject them to retaliatory violence or invasive attention. Physicians share these confidentiality concerns with survivors. Fifty-nine percent of physicians in a 2011 study of healthcare providers in California indicated that they might not comply with mandatory reporting laws if the patient objected, in part due to these confidentiality considerations.

Mandatory reporting laws may have the unintended impact of discouraging survivors from openly discussing their situations with their healthcare providers, which could prevent them from receiving referrals and support. Some survivors lie to their providers about the cause of their injuries because they worry that if they tell the truth, the police will be involved without their consent. Many survivors are also concerned that Child Protective Services (CPS) will be notified and take away their children or charge them with criminal violations such as failure-to-protect. Being forced to lie to one’s doctor about such traumatic experiences can cause additional trauma because the survivor has to deny the truth of their own experience. If survivors did not have to worry that their cases would be reported to the police without their permission, they would likely feel more comfortable talking with their healthcare providers about their needs. This would make it easier for survivors to access information about resources and medical treatments, and for physicians to determine what kind of care their patients required.

For all of these reasons, mandatory reporting laws for sexual assault, domestic violence, and associated injuries should be eliminated. Survivors would still have the choice to self-report or ask health practitioners to report on their behalf, but required reporting can clearly do more harm than good. At the very least, these laws should provide more confidentiality for the survivors, like in Massachusetts’s laws, which say the report should not include any identifying information. This would allow for the tracking of these crimes, which supporters of such laws have highlighted as a benefit, without compromising the survivor’s privacy or forcing them to become involved in a criminal legal process. Alternatively, healthcare providers could be required to provide survivors with certain resources and referrals so they could decide whether and how to seek help, recognizing that the police are not always the institution best suited to respond to sexual and domestic violence crimes.

Overall, eliminating mandatory reporting laws for competent adult victims of sexual assault and intimate partner violence would restore the element of choice for survivors and better protect their interests. It’s time to look towards innovative solutions to interpersonal violence instead of relying on the police to solve every societal harm, especially when their involvement is not desired.

 

Maya Harmon: Membership Development Editor, California Law Review Vol. 109, and Berkeley Law Class of 2021.

[1]      “Competent adult victim” is a legal term that is frequently used in the sexual assault/domestic violence space. However, throughout the paper, I also refer to people who have experienced sexual assault or domestic violence as “survivors” because many people who have had these experiences prefer the term, “survivor.”

[2]      It will not discuss the merit of mandatory reporting laws for children, elderly adults, or vulnerable adult victims. Such laws are complicated by other considerations that I do not have the space to explore in this Blog.

Maya Harmon, The Case for Eliminating Mandatory Reporting Laws for Competent Adult Victims, Calif. L. Rev. Online (May 2021), https://www.californialawreview.org/the-case-for-eliminating-mandatory-reporting-laws-for-competent-adult-victims.

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