Mandated Reporting

 Both minors are under the age of 14, and they are of similar age and cognitive ability. Although the court has not defined “of similar age,” we treat it to mean within one year of age difference.  Both minors are 14 years of age or older. Consensual sexual activity between two minors, both of whom are at least 14 is not considered reportable abuse, unless it is incest.

Sexual activity between a minor and adult will generally constitute reportable sexual abuse. Certainly, for example, any sexual conduct between a minor student at a school and a school employee must be reported. However, as minors become older teenagers (i.e. 16 or older), the law becomes less clear as to when and whether consensual sexual activity is reportable, and may depend on the relative ages of the individuals and the nature of the sexual activity. For example (excluding conduct by a school’s own employees, which must be reported), consensual intercourse between a minor and an adult is mandatory reportable sexual abuse only if the minor is 15 or younger, and the adult is 21 or older. 26 There may be other situations without this age difference that require mandated reporting, such as nonconsensual sexual activity or situations involving an impairment of judgment or an abuse of power. Beyond that, the law is complex, and at times internally inconsistent, regarding consensual sexual activity between teenagers who are 16 or 17 years old and someone who is 18 or older. We recommend you contact legal counsel if faced with this situation. A growing number of concerns regarding sexual exploitation of minors pertain to “sexting,” or the exchange of sexual images via cell phone. Many young people engage in mutually consensual sexting with romantic partners or other minors, but sometimes situations arise where one minor obtains an image of another without consent and either views it or distributes it to others. Mandated reporters are often confused about what to do with respect to reports of sexting. Some states have enacted laws that protect teenage sexters. For example, in New York state, if two people under 20 years old who are 5 or fewer years in age difference exchange sexually explicit pictures, they can be sent to a diversion program instead of being prosecuted criminally. This program focuses on education regarding the risks and dangers of sexting. 27 California has not enacted such a law addressing this issue. Under the letter of the law in California, some types of sexting may be mandated reports. For example, Penal Code section 11165.1 gives examples of acts that constitute sexual exploitation under the law and are therefore reportable. One of these examples is any act in violation of Penal Code section 311.2, which includes the exchange with a minor of a photo of a minor engaging in sexual conduct such as the “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” Therefore, if one student has such a picture of another student, whom he or she knows to be under 18, and the student exchanges the picture with another student, then a reportable violation has

Mandated Reporting ©2020 Liebert Cassidy Whitmore 10