Turning in the Client: Mandatory Child Abuse Reporting Requirements and the Criminal Defense of Battered Women

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Notes

Turning in the Client: Mandatory Child Abuse Reporting Requirements and the Criminal Defense of Battered Women^

I. Introduction

The prevalence of domestic violence has long been an ugly secret in American society. Almost four million women are abused every year, and an individual woman's likelihood of being battered ranges from twenty to thirty-three percent.1 Law enforcement and society in general have long turned a blind eye to domestic violence, regarding it as too personal and too messy for public involvement.2 Erroneous stereotypes that domestic violence only happens to minorities, those in lower socioeconomic classes, or women are breaking down, but only very slowly.3

Battered women face many more problems than being beaten, however. Many find themselves as defendants in criminal proceedings-a result of fighting back, attempting to defend themselves, or using drugs or alcohol to dull the mental and physical pain from the abuse.4 As if the abuse and IMAGE FORMULA7

criminal charges were not enough, battered women with children face another potential battle. All fifty states, as well as Puerto Rico and the Virgin Islands, have passed some type of mandatory child abuse reporting statute,5 which are a requirement in order for states to receive federal grants under the Child Abuse Prevention and Treatment Act.6 All mandatory reporting statutes require physicians to report, but many also require the same of social workers, teachers, child-care workers, nurses, lawenforcement personnel, and even citizens generally.7 Most statutes abrogate at least the doctor-patient and husband-wife privileges, and courts have held that the defense of "privileged communications" is unavailable for anyone included in a mandatory reporting statute.8 The attorney-client privilege is usually preserved,9 but some states require attorneys to report suspected child abuse,10 even if it places their clients in additional legal difficulty. Attorneys who defend battered women in states that include attorneys as mandatory reporters are trapped between loyalty to their clients and the statutes that require them to report suspected child abuse. This conflict seriously undermines the criminal defense of battered women.

The Texas mandatory reporting statute provides an example of this problem. A provision of the Texas Family Code requires "professionals" to IMAGE FORMULA9

report suspected child abuse or neglect.11 The problem is that the provision does not allow any exceptions for traditionally "privileged" communications, even those between a lawyer and a client. As a result, lawyers in Texas are included as mandatory reporters under the provision. The close connection between child abuse and spousal abuse creates a terrifying legal trap for battered women, and a serious ethical dilemma for lawyers involved in domestic violence cases. For attorneys representing domestic violence victims, especially in criminal defense matters, child abuse is a critical issue for the client, the child, and the defense. Therefore, mandatory reporting requirements could profoundly affect the quality of the criminal defense of battered women, as well as prevent the candor and trust that are vital to getting a battered woman-whether she does or does not abuse her children-the help she needs.

Part II of this Note examines the ethical and legal conflicts that arise when attorneys are mandatory reporters of child abuse. Part III describes the arguments in favor of including attorneys in mandatory child abuse reporting statutes. Part IV outlines the reasons why attorneys should not be mandatory reporters, especially attorneys defending domestic violence victims. Part V analyzes some potential solutions to the mandatory reporting dilemma and describes the legal barriers facing organizations like BWDP that might wish to challenge the application of mandatory reporting statutes to criminal defense attorneys. …