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First Amendment Misinterpreted

Mandatory Reporting

It appears there are a few misconceptions when it comes to the reporting of child abuse.  Some have taken statements I have made out of context to make it appear there is a contradiction in how silentlambs views the issue of reporting child molestation.  Whether this is an attempt out of ignorance or being done intentionally remains to be seen.  The point is that in all fifty States it is MANDATORY to report child molestation.  What does MANDATORY mean?  Webster’s defines it as:

“Required by or as if by mandate or command: obligatory.”

Now the question remains is it MANDATORY in all fifty states for clergy to report child molestation?  The answer is no.  Only sixteen States require mandatory cleric reporting of child molestation. So when I make comments that relate to NON-MANDATORY reporting I refer to the State law that allows clergy to not report child molestation.

The next question that would arise, are parents MANDATED to report child abuse.  The answer is YES!  Each State has certain laws and penalties that are defined locally for parental non-reporting of child molestation.  These penalties can range from being charged with a misdemeanor and facing some type of fine or jail time to loss of custodial care due to negligence. 

The federal law Child Abuse Prevention and Treatment  Act (CAPTA)(Jan. 1996 version), 42 U.S.C. 5101, et seq.. requires all fifty States to comply with MANDATORY reporting or lose federal funding, no State is not receiving Federal funding due to non-compliance.

So the point remains, the 2-15-02 BOE letter is out of harmony with Federal guidelines regarding the MANDATORY reporting of child abuse.  The BOE letter states that reporting is optional with the statement:

“If you are asked, make it clear that whether to report the matter to the authorities or not is a personal decision for each individual to make and that there are no congregation sanctions for either decision.”   

That is if PARENTS choose to not report they will not be reported to authorities and will remain as good examples within the congregation.  This is in violation of MANDATORY reporting laws in all fifty states and is also in violation of JW doctrine that requires all JW”S to be in subjection to the “superior authorities” in all legal matters unless man’s law conflicts with God’s law.  In this instance WT is condoning the defiance of MANDATORY reporting laws on child molestation and leaving it a personal decision.

For those of you who wish to split hairs with supposed concern for “timid” victims or going to the nth degree to find a basis to not report, you are simply dead wrong, the LAW argues otherwise.

I am including below the link and comments from a website that goes into all details of this subject.  I encourage any who have further questions to educate yourself on this topic.  This website has been posted on silentlambs for over one year as are many other resources on the “assistance” page.  For those who wish to make broad sweeping remarks on this topic many would be better served to read before they speak out and thus have a better grasp of why WT Policy is vastly deficient and must change to protect children.


Mandatory Reporting Facts

·  All 50 states have passed some form of a mandatory child abuse and neglect reporting law in order to qualify for funding under the Child Abuse Prevention and Treatment  Act (CAPTA)(Jan. 1996 version), 42 U.S.C. 5101, et seq.. The Act was originally passed in 1974, has been amended several times and was most recently amended and reauthorized on October 3, 1996, by the Child Abuse Prevention and Treatment and Adoption Act Amendments of 1996 (P.L. 104-235). CAPTA's Legislative history.

·         CAPTA mandates  "minimum definitions" for child abuse and sexual abuse. Child abuse or neglect is any recent act or failure to act:

o        Resulting in imminent risk of serious harm, death, serious physical or emotional harm, sexual abuse, or exploitation

o        Of a child (usually a person under the age of 18, but a younger age may be specified in cases not involving sexual abuse)

o        By a parent or caretaker who is responsible for the child's welfare

Sexual abuse is defined as 

o        Employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or

o        rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.

·         Link to a more detailed discussion of what constitutes abuse and neglect.

·         Many states have modeled their laws after the Model Child Protection Act.

·         The Federal DHS, Children's Bureau has published a "how to" site including hot line phone numbers for the 50 states. How to Report Suspected Abuse and Neglect.

·         All states require certain professionals and institutions to report suspected child abuse, including health care providers and facilities of all types, mental health care providers of all types, teachers and other school personnel, social workers, day care providers and law enforcement personnel. Many states require film developers to report.

·         A number of states have broad statutes requiring "any person" to report.

The National Clearinghouse on Child Abuse and Neglect Information is legislatively mandated to maintain information on line about mandatory reporting statutes. The NCCA site contains an extensive library of PDF documents summarizing and comparing state child abuse protection and reporting laws. The statutes-at-a-glance reports and have information on reporting issues in all 50 states. The Clearinghouse keeps its statutory compilations up to date and puts them in concise plain-language format. 

Actual statutory language (where easily viewed) and other state resources are listed in the table below

·         Extent of the knowledge triggering the duty to report varies. Some statutes call for reporting upon a  mere "reasonable cause to believe" or a "reasonable suspicion." Other statutes require the reporter to "know or suspect," which is a higher degree of knowledge.

·         Failure to report suspected child abuse can result in criminal liability, although the liability is typically a misdemeanor punishable by a fine.

·         Failure to report can result in civil liability.

·         Immunity. CAPTA requires states to enact legislation that provides for immunity from prosecution arising out of the reporting abuse or neglect. In most states, a person who reports suspected child abuse in "good faith" is absolutely immune from criminal and civil liability. For that reason, most healthcare attorneys will advise a client "that it is far better, in theory, to be faced with defending a civil action for reporting suspected abuse rather than the bleak alternative of defending a civil action . . . if a child is injured or killed as a result of failing to make a report of suspected child abuse.

·         False Reporting. The 1993 CAPTA amendments require states to enact legislation providing for prosecution in false reporting cases (reports made without having a reasonable belief that the report is true.) The false reporting laws must be read together with the immunity statutes and case law, however; persons who report in "good faith" are immune from civil and criminal liability. As a matter of public policy, prosecutors should be extremely selective in initiating false reporting prosecutions so that reporting is not discouraged.

·         Confidentiality and Privileges. Some statutes expressly provide that all confidential privileges are abrogated. Some states provide an exemption for clergyman who receive information in the context of a sacred communication or confession. The clergy/penitent exception, however, is strictly defined and will not apply if a clergyman is acting in another role, i.e. a health practitioner. This raises the issue of whether pastoral counselors in private practice can assert the privilege.

·         Attorneys. An attorney is prohibited by ethical constraints from reporting if the information is obtained from a perpetrator or other responsible party exposed to criminal or civil liability via an attorney/client communication. In addition, no statute can abrogate the attorney/client privilege in the context of the defense of a person accused of a crime because such a prohibition would violate the accused person's Constitutional right to counsel. When attorneys represent children or adults in other settings however, there are competing considerations and reporting may be mandatory or permissible. American Bar Association Standards of Practice For Lawyers Representing a Child in Abuse and Neglect Cases.

·         All states require the report to be made to some type of law enforcement authority or child protection agency. Reporting to a parent or relative will not satisfy the reporter's legal duty under the statutes.

·         States now have similar statutes requiring the reporting of elder abuse.

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