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As a school counselor, what would you do if:
School counselors may struggle with reporting issues surrounding sexual behavior or victimization from sexual violence. School counselors' struggles may, in part, be a result of confusion over the legal specifics that distinguish the sex crimes of statutory rape, rape, and sexual abuse, and the concomitant legal and ethical duties for each. Most probably, the reason for the confusion is that many counselors have not been trained in the legal distinctions between these sex crimes and the concomitant legal and ethical duties. An additional quandary may arise regarding ethical duties because a strong sense that "something must be done" may be present when certain sexual behaviors or victimizations are revealed.
The 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 the rape, and in the cases of caretaker or other inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children or incest with children.
The key element that distinguishes child sexual abuse from other sex crimes is that the perpetrator is defined as being in a custodial or caretaker role (S. Cohen, National Clearinghouse on Child Abuse and Neglect Information, personal communication, March 27, 2002). Such roles are typically defined as a parent, relative, adult living in the home, baby sitter, neighbor, teacher, faith community leader, and coach. Not included in child abuse definitions are individuals whom one is dating or with whom one has a romantic relationship. Such roles are not deemed as a custodial or caretaker by the law. Further, under the law, one is prohibited from being in a romantic relationship if there is a custodial duty. However, statutory rape and rape can occur in dating or romantic relationships.
Rape and Statutory Rape
States originally created statutory rape laws in order to protect young females from being preyed upon by adults because of an assumed developmental power differential that may exist when there is a large age discrepancy between sexual partners (Massachusetts Family Institute, 2000). Sexual intercourse by partners with certain age differences is considered statutory rape because the law declares that the younger party is incapable of consent by reason of age (Miller et al., 1999). Thus, in most states for example, a 16-year-old can legally consent to intercourse with a 17-year-old but not with a 23-year-old. Although the right of legal consent is taken away for sexual relations with partners with certain specified age differences, because statutory rape is non-forced, it is mutually consenting between partners (except, perhaps, as defined by South Carolina law).
It is the mutually consenting component that distinguishes statutory rape from rape, which includes force or threat of injury. In contrast to child sexual abuse, with statutory rape the older party is not perceived as being in a custodial or caretaker role, and, except in South Carolina, issues of coercion, persuasion, and enticement are not considered as components of the definition.
Counselor Duties Duty to Report
All states legally require the reporting of child abuse (Welfel, 2002), as do the ethical codes of American Counseling Association (ACA; 1995). Except in the context of child sexual abuse, the ethical codes of ACA do not mention rape or statutory rape or any requirement to report. Similarly, outside of the context of child abuse, rape and statutory rape laws historically have had no required reporting component. Such is the case for most states; however, as a result of recent legislation, reporting laws in several states have changed.
The changes that have been implemented stem from new federal legislation that requires federally funded health clinic workers to report statutory rape of minor clients (Manzullo's Title X, 1998). As a result, several states have amended statutory rape laws in ways that include mandatory reporting. Specifically, California now requires the reporting of statutory rape in cases where the younger partner is 14 or 15 years old and the older partner is over 21 years old, or the younger partner is under 14 years old and the older partner is 14 years old or older (Safenetwork, 2002). Florida rewrote its laws to define consenting sex with a child under 16 with a partner 21 years or older as child abuse, thus mandating the reporting of statutory rape under the child abuse statute (Davis & Twombly, 2000). Prior to the new federal guidelines, Tennessee enacted a law encouraging, but not requiring, health care providers examining for pregnancy to report statutory rape; however, this law carries no penalty and does not apply to counselors (Statutory Rape Prevention, 1996). It should be noted that none of these laws mandate the reporting of rape, only statutory rape, and only then when certain criteria are present.
These law changes have resulted in concern and discussion with regard to health care and counselor duties. These concerns include the fact that most child welfare agencies were not designed and are not equipped to deal with statutory rape cases outside of the intrafamilial context (Donovan, 1998). In addition, issues have been raised regarding informed consent rights of those being counseled. It has been intimated that some workers faced with reporting dilemmas are careful not to inquire as to the age of sexual partners in order to avoid the responsibility of reporting. It should be noted that, if a state were to have a specific law mandating the reporting of statutory rape, such information would ethically have to be included in informed consent discussions and materials.
Another example of a mandatory reporting law with regards to sex crimes can be found in Tennessee law. In Tennessee, all sex crimes with a child below age 13 are to be reported to the Department of Child Services (R. Parris, Supervisor, Department of Child Services, State of Tennessee, personal communication, April 30, 2002). This is because 13 years is the age of consent for intercourse in Tennessee, and all sexual relations with a child below 13 are considered some form of a sex crime. Again however, if the younger party is 13 years of age or above and if the partner is not more than 4 years older and the sexual relationship is not in the context of child abuse (i.e., older party in a caretaker role), there is no legal mandate to report. For example, in Tennessee, counselors would not be required to report intercourse between a 15-year-old and a 23-year-old (statutory rape). In addition, counselors would not be required to report the rape or date rape of any client 13 years or older.
Although the specifics of each state's laws are not presented here, and although there is variance between states (Donovan, 1997), it is likely that they are similar conceptually. However, school counselors are strongly advised to learn the laws of their state or seek legal counsel when in doubt. To summarize reporting duties thus far, unless there is a legally mandated reporting law that specifically includes counselors as required reporters, or unless the laws of a state have been amended to include statutory rape as a form of child abuse, counselors are not legally or ethically obligated to report rape or statutory rape.
Other Reporting Dilemmas and Issues
This dilemma is further complicated when cultural differences are examined. Donovan (1997) noted that what most states define as statutory rape is accepted or even encouraged in some cultures. She points out that families "may promise their young daughter to a much older man, in part because he will help support the entire family" (p. 33). As our nation becomes more culturally diverse, there may be more conflicts with state laws that were built on more traditional Western culture. Although statutory rape commonly carries no mandate for reporting, child abuse does. Depending on the circumstances, it appears likely that some condoned cultural practices may be difficult to distinguish from the legal definition of child abuse. Is a young daughter who is promised in marriage to an older man being abused if such a practice is common within that culture? As counselors, we are ethically called to honor cultural diversity, and we are also ethically called to report child abuse.
Decisions regarding the legal distinctions between child abuse and statutory rape are not the domain of counselors and are best left for the courts to debate. As noted, if school counselors find themselves knowledgeable of situations where age discrepancies between mutually consenting sexual partners are questionable, they should call their local department of child services or prosecuting attorney and present a hypothetical case describing the circumstances. After receiving legal guidance, they can decide whether or not to report formally. In relation to the age discrepancy issue, it should be noted that two states, Delaware and Georgia, recently changed their statutory rape laws and increased penalties with larger age discrepancies between partners (Davis & Twombly, 2000).
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