The Limits of Confidentiality
The duty to report and to warn
By Clifton Mitchell
Q: Most therapists understand their responsibility to report child abuse, but what about statutory rape?
The laws defining statutory rape differ from state to state, the only similarity being in the structure of the definitions. Statutory rape laws are defined by the ages of the parties having sexual intercourse: there's a younger party who's between two particular ages, and an older party who's a number of years older, and they're having sex. When the age differences are deemed to be significant, states take away the younger party's legal right to consent. Thus, statutory rape is socially consenting sex between two parties, but because of age differences, the state has removed the younger party's right to consent.
Because the relationship between the parties is not a custodial-caretaker relationship, as is required for an act to be child abuse, most states have no statutory rape-reporting laws, and mental health professionals are usually not legally required to report. Unfortunately, there's little consistency among states regarding age differences. The situation is further complicated because, even though statutory rape is legally different from child abuse, some state's departments of children's services still take statutory rape reports. Whether or not statutory rape reports are accepted by child services differs considerably from state to state. For example, Florida and California have enacted mandatory statutory rape-reporting laws under certain circumstances. If you live in those states, you should study the circumstances for which you're required to report. As always, check your state's procedures before you act.
Q: What about the duty to report rape?
In most states, there's no duty to report rape unless it's in the context of child abuse. This is surprising to the public and mental health professionals alike. In cases of a rape by a stranger or in a dating relationship, the rights of confidentiality reside with the person who's been assaulted. Rape of children and other sexual behavior with children should be reported under child abuse laws. For example, in Tennessee, the department of children's services wants to be informed of all sexual behavior for children under age 13.
Q: What are your legal and/or ethical obligations when a 16-year-old female tells you she's having sexual intercourse with her 18-year-old boyfriend?
This is a consenting sexual relationship in a "romantic" context in virtually every state in the country, and there's no duty to report. We should be careful lest we become the sex police. Yet again, you should check with your state's laws for guidance and age differences. As noted, California and Florida may require reporting under certain circumstances.
Q: So what are your legal and/or ethical obligations when a 15-year-old female client reports that she's having intercourse with her 26-year-old boyfriend?
This is statutory rape by the laws of most states, but, technically, it could be argued that there's no duty to report. Ethical guidelines require that you report in accordance with the laws of your state and offer no specific guidance in such cases. However, Florida and California are the two states that would likely mandate reporting in this instance and, because of the age difference, most departments of children's services would take this type of case and work with attorneys to decide whether any law had been broken.
Q: What are your legal and/or ethical obligations when a 15-year-old female tells you she was date-raped by a 17-year-old male?
That's rape. Many people use the term "date rape," but I can find no unique laws addressing date rape. As noted, unless it's in the context of child abuse and thus occurs within a custodial-caretaker relationship, most states don't have mandatory rape-reporting laws. The rights of reporting in this case go to the client, and you should consult with the client about how she wants to proceed. Of course, it would be prudent to educate the client and provide support for revealing the information as she desires.
Q: What are your legal and/or ethical obligations when a 9-year-old male reports to you that his neighbor fondled his genitalia?
This is a clear case of child abuse. A neighbor would be considered to be in a custodial-caretaker relationship simply because of being close to the family. This isn't proper sexual behavior, and you should report it as child abuse to your local department of child services or child-protective services. Most states require reporting of sexual behavior of children regardless of context. When in doubt, consult with your local department of child services.