April 14, 2014 By Marsha Volk Bugalla
Indiana, as do most states, has a statute which requires certain school officials to immediately report instances of suspected child abuse occurring within their institutions to the Department of Child Services (DCS) or law enforcement. In Smith v. State of Indiana, 2014 WL 1258337, the Indiana Supreme Court upheld the conviction of a high school principal for failing to comply with this requirement. The facts are very specific and impacted the outcome, however, the case should be taken as an object lesson for all school officials.
GG was a 16 year old student who had previously been found to be a child in need of services, and was a ward of the Indiana Department of Child Services. She resided at the Youth Opportunity in Muncie ("YOC"). Between 12:20 and 12:25 p.m. on November 9, 2010, a fellow student brought GG to the assistant principal of the high school and advised that GG had been raped by a fellow student in one of the school bathrooms. The assistant principal immediately went to the office of the principal, Christopher Smith, and advised him of this allegation. Mr. Smith contacted the school nurse and the associate principal. Mr. Smith directed the assistant principal to review the security footage. This took about an hour during which time GG was directed to provide a handwritten statement of her allegation.
At the time these events were occurring, there were between three and five police officers on the school grounds serving as security officers. The associate principal asked Mr. Smith if she should contact one of those officers. Mr. Smith directed her to call the YOC. Sometime between 12:45 and 1:00, Mr. Smith called the Central Office and spoke to the Director of Secondary Education. Mr. Smith was trying to reach the assistant superintendent. Mr. Smith relayed GG's allegations and informed the Director of Secondary Education that his question was whether a security officer should be present when the alleged perpetrator was questioned. The Director of Secondary Education reached the District's Director of Human Resources who advised that Mr. Smith should have another administrator present, but did not need a security officer as they were not sure if this was a criminal matter.
The associate principal then spoke for a second time with YOC and they discussed GG's credibility based on some previous instances. At approximately 2:00 p.m., a YOC representative arrived and took GG to the hospital. Within an hour of her arrival, the hospital staff contacted the police to report a possible sexual assault.
At approximately 1:25, Mr. Smith directed the associate principal to get the alleged perpetrator, who had spent the intervening time finishing lunch and attending a science class. Mr. Smith asked the athletic director to be a witness while he questioned the student. The athletic director asked Mr. Smith if this should be a police matter and Mr. Smith responded that it was still a school matter. Mr. Smith questioned the student about the allegations and he denied everything. He was not asked to provide a written statement, and was allowed to return to his class and eventually went home at the end of the school day.
After questioning the student, Mr. Smith asked the athletic director to search the alleged perpetrator and GG's lockers. The athletic director asked for the assistance of one of the school security officers, but did not tell the officer that there had been an allegation of rape occurring on school grounds.
Meanwhile, Mr. Smith and others proceeded to conduct interviews with candidates for an open administrator's position that had been previously scheduled. These interviews lasted until after 4:00 p.m. At the conclusion of the interviews, Mr. Smith then called the assistant superintendent once again and explained that GG had reported that she had been raped and had been taken to the hospital. The assistant superintendent told Mr. Smith to immediately contact the Department of Child Services. This was done a little after 4:30 p.m. At no point did Mr. Smith or anyone else at the school district ever directly contact the police department to report the alleged rape. On November 11, the police began the investigation into the rape and six days later the perpetrator admitted to raping GG.
Much of the analysis in this case deals with specifics of the Indiana statute requiring school officials to report child abuse, Indiana Code 31-33-22-1, et. seq., its later revision, and the interplay between this statute and a number of others.
Mr. Smith was found guilty and sentenced to 120 days in jail, all suspended to probation, 100 hours of community service, and the payment of a $100.00 fine. He appealed the conviction claiming the evidence was insufficient to sustain it, and reiterated his claim that the statute was unconstitutionally vague. In a split opinion, the Court of Appeals reversed and vacated the conviction. The Indiana Supreme Court upheld the conviction. In doing so, the Indiana Supreme Court addressed the language in the statute which requires the members of the staff of a school to "immediately" notify the individual in charge who must then "immediately" make a report to the DCS or the local law enforcement agency. The Indiana Supreme Court concluded that the term "immediately" is not unconstitutionally vague and its meaning is clear. The Court concluded that the use of this word conveyed a strong sense of urgency and carried out the Legislature's intent "to encourage effective reporting of potential child abuse or neglect" so as to facilitate quick investigation of allegations and protect victims.
The Court then addressed Mr. Smith's defense that because he did not know a suspected rape constituted child abuse under the Indiana statutes his conviction should not be upheld. The Court concluded that school individuals like Smith served as the "first responders" to incidents of child abuse and neglect and were required to act swiftly to ensure children were protected from further harm. Additionally, the Court concluded that if Mr. Smith's mistaken interpretation of the law were a defense to his criminal liability "it would remove all incentives from any professionals to understand the scope of that statutory duty." The Court also concluded that the statute is designed "to err on the side of over reporting suspected child abuse or neglect." The analysis continued and pointed out that Mr. Smith apparently took the allegations seriously enough to summon the school nurse and others, direct that YOC be contacted, interrogate the perpetrator and direct the search of school lockers. His delay, however, allowed a suspected criminal to remain within the student population and actually go home. Further, the delay prevented an investigation which could have sealed the crime scene and preserved evidence.
Lastly, the Supreme Court noted that the statute at issue had been recently amended making the duty to report for school officials significantly stricter. They must immediately report such suspected abuse or neglect to DCS or law enforcement "when they have reason to believe it has occurred – regardless of whether the child is being cared for by his or her parents, guardians or the State and regardless of how the official assesses the quality of that care."
The lessons learned from this case are the following: Do not investigate prior to notifying DCS or law enforcement. Make the call immediately. The failure to do so may result not only in criminal liability, but continued danger for a student. A school official will not be criticized or held criminally liable for making a report too quickly.