December 1, 2022

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The Legal System

Inquiry goes on in Huntsville

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Huntsville school officials weren’t legally required to immediately call the Arkansas Child Abuse Hotline to report accusations of sexual abuse among boys on the junior high school basketball team, according to Prosecuting Attorney Matt Durrett.

But they’re now facing backlash from child advocates, legislators and others who say it would have been the right move for them to call and if there is a legal “loophole” that didn’t make it a crime, it needs to be closed.

Durrett said in early April that he didn’t file charges against the school officials initially because the requirements of the state’s mandatory reporter statute didn’t appear to apply, based on the evidence he had before him.

“Obviously, the prudent thing to do is to err on the side of caution and file a report,” Durrett said earlier. “However, there was no legal requirement to do so. As such, we did not have a legal basis for filing charges.”

But Durrett said Friday that he’s still actively investigating information that has come to light since his initial decision and may change his mind and file charges, if he finds school officials knew more about what was going on earlier than he was led to believe.

“We’re in the process of gathering additional information that’s out there,” Durrett said. “There were holes in the investigation that I should have looked at and seen that they were followed up on before making a decision. I’ll take the blame for not recognizing those gaps.”

Durrett said he’s specifically looking into possible discrepancies in who knew what, and when they knew it.

“In my opinion, what the school reported they knew didn’t fit the statute,” Durrett said. “Now, whether or not that’s all they knew may be a different story.”

Durrett said the information he had was that on Feb. 9, 2021, it came to the attention of school administrators boys had been exposing themselves to one another in the locker room.

Durrett said he’s now being told families of the victims gave administrators full details of what had happened on Feb. 9, 2021. The first call to a hotline came Feb. 27, 2021. Durrett said hotline calls are confidential, even to prosecutors, so it isn’t clear who made that initial call.

The allegations stem from incidents involving players on the basketball team.

According to a report completed after an internal investigation by the School District, some players had placed their “genitals in the faces” of several eighth- and ninth-grade boys who were being restrained by other boys in the locker room after games. The practice — called “baptism” — occurred several times during the basketball season, as well as the previous year, according to the report. Another practice that reportedly occurred, “bean-dipping,” refers to placing a student’s rectum and anus on the face and particularly the nose of another student.

Durrett said a mandated reporter is required to file a hotline report when they have reasonable cause to believe a child has been subjected to maltreatment. Prior to Friday, he said none of the statutory definitions fit the actions reported to school officials at the time.

A report from the Madison County sheriff’s office by Capt. Russell Alberts concluded the incident didn’t meet the criteria of child maltreatment as outlined in the law. A key sticking point was whether there was sexual gratification involved, and Alberts concluded there wasn’t, according to the incident report.

The conclusion has at least one legislator and the head of the Arkansas Department of Education questioning whether the mandatory reporter law needs to be revisited to make sure the intent is clear and to close any potential loopholes.

“A significant component of sexual abuse is about exerting power over someone else,” Johnny Key, secretary of education, said in a statement provided by the department. “If the current laws can be interpreted solely on the basis of gratification, then it is my opinion the laws need to be reviewed and revised in the next legislative session.”

Sen. Bob Ballinger, R-Ozark, said he also thinks revisiting the mandatory reporter law is in order. Ballinger represents the Huntsville area in the Legislature.

“From a mandatory reporter standpoint, a lot of those subsections have been put in place and really not modified or had a really a close look, so I think we should,” Ballinger said. “Obviously, teachers already have a really tough job, I don’t want to make their job harder, but, at the same time, there is a reason for that section.”

Ballinger said teachers and school administrators have a duty to act in the best interest of the students, and they’re also in a position of public trust.

“They really oughta be in a place where they will communicate that when they come across it,” he said.

Ballinger, a lawyer, said he thinks failing to make a report could potentially leave a teacher or administrator open to civil liability.

“What you have is a situation where it’s an obligation of your office if you’re a mandatory reporter. It is probably a violation of the standard to the point that you lose some of your qualified immunity that you would have,” Ballinger said. “So, I think you’re opening yourself up to individual liability by not doing that and teachers should be very careful.”

Ballinger said the behavior appeared to be bullying pushed to the edge, to the point it was highly degrading for the victims.

“It was a terrible situation of bullying manifesting itself in almost the ugliest forms there are. And, I think people treated it too much like it was boys being overly aggressive, a little bit of that whole boys being boys thing,” he said. “If you want to try to get rid of that type of behavior, you’ve got to take it really seriously and treat it like it’s a really serious matter, and I feel like it wasn’t done that way,” Ballinger said.

Ballinger said the burden is on administrators once word of the behavior was communicated to them, and they should have made the right decision.

“From my standpoint, my counsel is always going to be to be more careful than less,” Ballinger said. “And, so, when you have something like that where you think if it were my kids would I want it reported? I would, definitely.”

Gavin Lesnick, a spokesman for the Arkansas Department of Human Services, said he couldn’t address the Huntsville case, but the agency teaches mandatory reporters to err on the side of caution and report any concerns of possible maltreatment.

“We make them aware of the requirements of the law, which is that a reasonable suspicion of child maltreatment be reported to the hotline,” Lesnick said.

Kimberly Mundell, a spokeswoman for the Education Department, said complaints regarding a school district employee’s failure to comply with the mandatory reporting law aren’t within department’s authority to investigate.

The law says a mandated reporter who in good faith makes a report to the Child Abuse Hotline is immune from civil and criminal liability, so reporters aren’t discouraged from reporting for fear of liability if the allegation is unsubstantiated.

A complaint could be filed with the Professional Licensure Standards Board if a licensed educator has allegedly violated the Code of Ethics, but that information is confidential unless and until a hearing is held before the State Board of Education, Mundell said. Disciplinary action can be taken by the licensing board and state Board if a violation is substantiated.

COMPLAINTS

Rebecca M. Nelle filed a criminal complaint with the Madison County sheriff’s office in October saying school officials knew about the allegations in February 2021, but failed to immediately report them to the Child Abuse Hotline as required under Arkansas law. A violation of the law is a misdemeanor.

Two lawsuits have been filed against the School District over the incidents, one in state court and one in federal court. Nelle is the plaintiff in the federal suit.

The sheriff’s office investigated Nelle’s complaint.

“Investigation revealed that Caleb Houston (head coach), Audra Kimball (superintendent), Tommy McCollough (athletic director) and Roxanne Enix (high school principal) are all mandated reporters, in accordance with 12-18-402 and are required to report incidents involving suspected or actual child maltreatment,” according to Alberts’ report, which was completed in April. Houston resigned in August.

The incident was brought to Enix’s attention Feb. 9, 2021, according to Alberts’ report. Enix would have been the first mandated reporter having knowledge of the incident, he wrote.

Alberts concluded the incident didn’t meet the criteria of child maltreatment as outlined in the law because no sexual gratification was involved and because it involved peers, according to the incident report.

“This leaves only abuse, which by definition refers to acts carried out by a parent, guardian or others as defined in 12-18-103 … not the victims’ peers,” wrote Alberts.

Kimball said Friday that she had been advised not to comment for this story.

POLITICAL REPERCUSSIONS

Durrett’s opponent in the upcoming election for prosecuting attorney, Stephen Coger, has criticized Durrett’s decision not to pursue charges in the case, saying it sends the wrong message to both victims and abusers and sets a dangerous precedent.

“I disagree with my opponent in that I think the way the law is written is sufficient,” Coger said. “They’re not mandated to report abuse alone, they’re mandated to report anything that they suspect might be abuse.”

Coger said administrators and coaches at Huntsville knew children under their care were sexually assaulting other children and yet they failed to report that abuse, despite being mandatory reporters under Arkansas law.

“The statute is clear: These adults violated Arkansas law and allowed more children to suffer,” he said.

Coger said there’s also an Arkansas Court of Appeals precedent for filing charges. That court found in a rape case that there’s no need to prove sexual gratification, it can be assumed, he said.

“At the end of the day, it doesn’t matter if you’re the teacher or the superintendent or the coach, the only thing you have to do, more than you have to educate my kid, is you have to make sure they’re safe,” Coger said.

RECENT LAW CHANGES

In 2020, more than 5,500 cases were investigated by authorities, according to a news release from the Arkansas House of Representatives marking National Child Abuse Prevention Month, which was April.

The Arkansas General Assembly passed three new laws related to reporting child abuse in the 2021 regular session. Act 556 makes all full-time and part-time employees of public and private schools mandated reporters of child abuse.

Act 920 created the Blue Ribbon Task Force to End Child Abuse. The task force is charged with reviewing child abuse data in the state and the state’s options for adopting or revising policies, procedures, programs and services to assist in identifying and eliminating child abuse. The task force will file a final report with the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth.

The General Assembly also passed Act 975, which directs the Children Advocacy Centers of Arkansas to review and track reporting from the Department of Human Services relating to the alleged abuse or neglect of a child in order to ensure a consistent and comprehensive approach to providing services to a child and the family of a child who is the victim of alleged abuse or neglect.

Anyone who suspects a child is being abused is encouraged to call the Arkansas Child Abuse Hotline — (800) 482-5964.

“If you see something that concerns you or just doesn’t look right, we encourage you to say something,” according to a news release from the House of Representatives.

The requirement for states to designate certain individuals as mandated reporters of child abuse dates to the passage of the Federal Child Abuse Prevention and Treatment Act in 1974. That law requires states to select certain individuals as mandated reporters of suspected incidences of child abuse or neglect.

In Arkansas, the professions required to report child abuse are outlined in A.C.A. § 12-18-402, dating to 2009 with several updates since. They include child care workers and teachers, coroners, medical professionals, dentists, mental health professionals, domestic abuse advocates, domestic violence shelter employees, foster parents and law enforcement officials.

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