Friday, July 18, 2014

Mandated Reporting of Child Sexual Abuse: Making a Good Call

Important Note:  This blog is a commentary about mandatory reporting laws in the US as they may apply to child maltreatment.  Mandated reporting laws in the US are state-by-state and too critical for any blog to offer conclusive advice to a wide audience.  Professionals might have reporting duties contrary to this discussion or beyond the scope of this opinion piece (e.g. vulnerable adults or Tarasoff duties).  Individuals should determine what the reporting requirements are in their respective jurisdictions, and comply with them accordingly.



When a mandated reporter receives credible information about criminal sexual conduct involving a child, reporting child sexual abuse may be an easy call.  But those cases are the exception.  Professionals often encounter ambiguous information about inappropriate sexual conduct, including non-contact sexual behaviors.  In many cases, a report to child protective services (CPS) is not actually “mandatory.”   When in doubt, why not just make a report, to be on the “safe side?”  Because for licensed mental health professionals with privileged communication, there is no “safe side.” When a client has a privileged relationship with a psychotherapist, all information that is not subject to reporting is protected by laws and ethics of client privacy.  There is not much ground in between.  

Despite the good intentions behind mandated reporting, there are competing concerns and legitimate controversies around mandated reporting, under both US and Canadian laws.  The US, Canada, Australia, and many other countries have some form of mandatory reporting.  Mandated reporters typically include teachers, mental health professionals, social workers, law enforcement, health care workers, and child care providers, among others.  In the US, 48 states have mandatory reporting laws that require specific professionals to report suspected child maltreatment.  As of 2012, 18 US states require everyone to report suspected child maltreatment.

When a privileged relationship exists, professionals need to consider whether their first duty is to client privacy and confidentiality, or to mandatory reporting.  Breaking client privacy, even with legal justification, is likely to be detrimental to the therapeutic relationship.  The decision to report, or not report maltreatment can be life-altering for children and for clients.  For professionals, an errant decision, in either direction, can have far-reaching consequences for many individuals, including themselves.

Privileged Communication and Mandatory Reporting
Physicians, clergy, psychotherapists, chemical dependency counselors, and others with privileged communication advance the public interest of providing professional expertise to society – making confidential services available to individuals who might not seek professional help for fear of reprisals.  The precepts of privileged communication are established by a combination of laws and professional ethics that seek a balanced outcome that both helps individual clients and serves the public interest.   Sometimes the balance is tenuous, but privileged communication is essential to many professional relationships.

When mandated reporters do not have privileged communication, mandatory reporting is often straight forward, and as long as individuals report in good faith, there’s little risk to reporters.  But confidentiality is foundational in most therapeutic relationships and therefore privileged communication is essential.  As a result, most licensed mental health professionals generally do have a privileged relationship with clients.  The US Supreme Court affirmed psychotherapist‐patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996). The requirements of this privilege are: (1) the communications must be confidential, (2) the therapist must be a licensed psychotherapist, and (3) the communications must occur in the course of diagnosis or treatment (Mitrevski, 2006). 

Some might view mandatory reporting as a moral responsibility, but when one is operating under the auspices of a professional license, they must understand the obligations and the limits of relevant laws and professional ethics.  The same set of laws and professional ethics that extend privileged communication to licensed mental health professions, also establish the requirements of mandatory reporting.   Professionals often learn about client conduct that ranges from sordid to illegal.   There are very few cases where licensed mental health professionals may violate privileged communication.  Mandatory reporting is one exception, and clients should be forewarned.  Because clients don’t share in the decision, and the outcome of a mandated report may be life-changing for clients, therapists must not get reporting wrong. 

When confidentiality attaches to a professional relationship, privileged information belongs to the client.  Clients need not invoke the right.  Mental health professionals have legal and ethical responsibilities to zealously protect privileged communication with their clients, even in forensic settings.  Regardless of whether clients understand their rights to privileged communication, therapists should respect and maintain both privileged communication and data privacy unless clients specifically waive those rights.   

Who is the subject of mandated reports? 
Perhaps the most common confusion about mandatory reporting is not understanding who is the subject of a child maltreatment report.   Generally, the subject is not the alleged abuser but rather a specific child (or children) who may have been abused or neglected, might be in a harmful situation, or otherwise meet a statutory definition for reporting maltreatment.  There are two important considerations:  (1) in most states, reporting laws are predicated on suspected maltreatment by a parent, care provider, or someone in a position of authority; and (2) reporting requirements depend on whether suspected maltreatment is current or historical.  In keeping with these general guidelines, reporting laws in the US vary by state.  

Sexual Offenders and Mandatory Reporting
In providing treatment to those who have sexually offended, psychotherapists might be the first to discover new child victims.  When victims can be identified and CPS can be directed to them, there is little doubt about a professional’s duty to abused children.  It is the indistinct cases of child maltreatment that frequently create professional hazards for therapists.  These circumstances can occur repeatedly within sexual offender treatment settings because clients are typically expected to disclose their entire sexual history, including not only all victims, but in some cases every sexual transgression going back to puberty.  This exhaustive inventory can be a minefield for both clients and therapists – and for mandatory reporting.

Sexual offenders in treatment may lose privileged communication, either by court order or by being frightened, confused, or coerced into signing away their privacy rights through consents or a release of information.  One way that clients often unwittingly forfeit their rights to privileged communication is through the compulsory use of the polygraph – ostensibly for treatment purposes.  Such use is banned in Canada, but is popular in the US because of the “utility value” – getting clients to reveal victims or disclose other sexual misbehavior.  If privileged communication does not attach, such disclosures are at the peril of clients.  

When privileged communication is forfeited, treatment disclosures (not necessarily criminal) can carry significant risks to clients.   Certain disclosures can lead to extensions of treatment, probation consequences, arrest, new charges, additional incarceration, lifetime sex offender registration, public notification, residency restrictions, and perhaps even sensationalizing by media attention.  Information that clients reveal which is unprotected may contribute to a dossier for civil commitment.  Dancing around such disclosures creates a treatment paradox for both clients and therapists.  Always looming in the background is mandated reporting. 

The disclosure of unreported victims is a perilous process for both clients and their therapists.  If clients believe full disclosures could result in additional penalties or criminal consequences, there is a colossal disincentive to disclose unknown victims.   Obviously, there are few areas of sexual offender treatment that present a greater dilemma for clients and therapists.  But it is not without precedence.  Many professionals with privileged communication must reconcile conflicting ethical, moral, and legal responsibilities.  With few exceptions, the first duty for licensed psychotherapists is to the client sitting in the room.

If therapists need to report suspected maltreatment, write an assessment report, document progress in therapy or compliance with treatment requirements, disclosing more information about the client than is necessary to fulfill specific purposes is likely to be a violation of privileged communication.

Child Pornography and Mandatory Reporting
The use of real children in the production of child pornography (CP) is clearly child abuse.  As offensive as CP or pornography (broadly) is to many people, knowing that someone has viewed CP is not likely to be a mandated report.  Most CP depicts children whose identities are not known to either the viewer or the reporter.  If a child victim in CP is perhaps in another country, local CPS would not have jurisdiction.  Understanding that the subject of a maltreatment report is not the accused, a mandated report for CP typically does not make it past the thresholds of an identifiable child to which services can be directed.  

There are some disclosures of CP by a client that could indicate a mandated report.  An obvious example would be a known minor being involved in the production of CP.   Adults allowing young children to knowingly view pornography might also be reportable.   A teenager viewing porn on the Internet or looking at sexually explicit images on a smart device typically does not constitute maltreatment of a minor.  Children involved in sexting with other minors might be illegal, but generally is not maltreatment of a child.  While a case could be made that sexting by a minor is the “production and distribution of CP,” if it does not involve participation by an adult caretaker, it illustrates the need for reporters to use professional judgment.

If a client begins to disclose involvement with CP, it might be wise for professionals to interrupt and advise clients that there are limits to privileged communication, and that mandated reporting might apply to certain disclosures.  Bottom line, there are very few circumstances in which clients viewing CP requires mandated reporting.

Mandatory Reporting and Preserving Families
In about nine out of ten cases of child sexual abuse the abuser is a family member, relative, friend, or acquaintance.  When sexual abuse has already been identified and reported, often psychotherapists are already working with a family.  As a result, a therapist may be the point person on new allegations of child sexual abuse.  Professionals uncovering sexual abuse may have a sudden and urgent duty to many parties.  When this happens, mandatory reporting is not in question, but psychotherapists should also recognize the unique opportunity to support clients and their families in working with CPS. 

When skilled professionals have an established therapeutic relationship with a family, and new information about child abuse is discovered, therapists may be in a unique position to quickly ascertain the nature and extent of abuse, know the vulnerabilities of victims (and potential victims), be aware of salient risk factors, and facilitate an immediate safety plan that considers all factors.  Some CPS workers might argue that this is the domain of CPS, though experienced CPS workers usually welcome such a professional collaboration.  While reporters typically have to defer to directives from CPS, the most frequent outcome of many cases of substantiated child maltreatment is for the victim and family to be connected with a psychotherapist who has the expertise to address presenting problems.  When a skilled professional is already in place, the outcome of mandated reporting might very well come full circle.

Professionals should understand that not only sexual abuse, but its revelation, can tear at the fabric of families in different ways.  Often it is not the sexual abuse itself from which victims, offenders, or their families might never recover; sometimes the aftermath causes secondary abuse – unnecessary disruptions to the stability and strengths of the family.  Public policies should support a comprehensive, balanced approach to both primary and secondary prevention of child sexual abuse, to mitigate counterproductive consequences to victims and offenders, and whenever possible, support the preservation of families (Finkelhor, 2009).

Depending on who the abuser is, parents typically have the right and responsibility to be the “first responder” when it comes to protecting their children.  The right for government to interfere with parental rights is predicated on evidence that parents have failed to protect their children.   Even when an intervention is obvious and urgent, the solution might be to support a non-abusing parent(s) by marshaling appropriate resources to help ensure safety for their kids. 

The arts and science of the treatment of victims and sexual abusers have the capabilities of helping most families to recover from the damage of sexual abuse.  Child victims often have a greater capacity than adults to forgive abusers.  In all but the most severe cases of child maltreatment, children should not have to choose between the fear of being abused and the fear of losing otherwise valued relationships.  When family preservation is in the best interest of children, it is very empowering to victims, even children, for adults to ask them how we can support them, and let victims help guide their own recovery.  Supporting abused children in this manner is not only empowering, it can help restore a child’s trust in others, preserve families, build resiliency, and help turn victims into survivors. 

“Children should not have to choose between the fear of being abused and the fear of losing otherwise valued relationships.”

Summary, Suggestions, and Recommendations
The potential consequences for failure to report suspected child abuse is so unnerving for most professionals that there is a tendency to err on “the safe side” and report.   Hopefully, it is clear that there is no “safe side.”  It would be nice if there were a decision tree for mandated reporting, but reporting laws vary too much by jurisdiction.  There are, however, some basic tenets of therapeutic relationships that might be helpful:  professionals need to be aware of the jurisdictional nature of mandated reporting, they need to know their duties to client privacy, they must always be mindful of fiduciary responsibilities to clients, victims, and public safety, and be comfortable that therapists are not an arm of law enforcement. 

It is not lost on this author that there are some circumstances of child maltreatment that are so grave and urgent that mandatory reporting is not a question.  If dire circumstances warrant, the first phone call should not be to CPS; it should go to 911.

Because mandated reporting laws are jurisdictional, professionals might first consult colleagues about local requirements for mandated reporting, and the tenets of privileged communications within their profession.  If after consulting colleagues, professionals are still in doubt, they might be wise to consult with local CPS.  Without the need to initially disclose identifying information about the client, CPS workers are usually glad to advise whether a report is required.  As a former CPS social worker, I recommend that professionals who might be frequent reporters get to know one or more of the investigators who screen cases at your local CPS.  Not only are most CPS workers glad to educate colleagues, they want to work with other professionals to get reporting right, and direct appropriate services where indicated.    

As a final recommendation, when consulting with a CPS worker, keep a record of the conversation, including the date, time, specifics of the query, the name of the CPS person consulted, and the advice provided.  Such information may serve the dual purpose of a written report to CPS, which is required in some states.  It is not likely that CPS can assuage moral pangs about reporting decisions that are not intuitive, but when it comes to a directive on whether a report is mandated in a specific jurisdiction, local child protective services is golden.


A Post Script:  In the interest of sharing knowledge and clarifying mandated reporting requirements, readers are encouraged to post comments below.  Because mandatory reporting is regional, if leaving a question or comment, please note your jurisdiction. 

US Reporting Requirements, State by State






Behnke, S.H. & Kinscherff, R., (2002) Must a psychologist report past child abuse? APA Ethics Rounds, Vol. 33, No. 5.  http://www.apa.org/monitor/may02/ethics.aspx

Canadian Incidence Study of Reported Child Abuse and Neglect - 2008 Major Findings, Public Health Agency of Canada, Ottawa, Canada, 2010.

Finkelhor, D. (2009) The Prevention of Childhood Sexual Abuse, The Future of Children; Crimes Against Children Resource Center, Fall 2009, Vol. 19 (2) 169-194.

Kalichman, S.C., & Craig, M.E. (1991) Professional psychologists' decisions to report suspected child abuse: Clinician and situation influences. Professional Psychology: Research and Practice, 22(1), 84.

Mathews, B.P. & Bross, D.C. (2008) Mandated reporting is still a policy with reason: empirical evidence and philosophical grounds. Child Abuse and Neglect, 32(5). pp. 511-516.

Mathews, B.P. & Kenny, M.C. (2008) Mandatory Reporting Legislation in the United States, Canada, and Australia: A Cross-Jurisdictional Review of Key Features, Differences, and Issues

Miller, R.D., & Weinstock, R. (1987) Conflict of interest between therapistpatient confidentiality and the duty to report sexual abuse of children. Behavioral sciences & the law, 5(2), 161-174.

Mitrevski, J.P. & Chamberlain, J.R. (2006) Psychotherapist-Patient Privilege, Journal of the American Academy of Psychiatry and the Law, 34:2:245-246.

Reamer, F.G., (2007) Protecting Privileged Information, Social Work Today, Vol. 7 No. 6.

Renke, W.N., (1999) The Mandatory Reporting of Child Abuse Under the Child Welfare Act
Health Law Journal, Vol 7, 91-140.

Seto, M.C., Hanson, R.K., and Babchishin, K.M., (2011) Contact Sexual Offending by Men with Online Sexual Offenses, Sexual Abuse: A Journal of Research and Treatment, 23:124-145.  Originally published online 20 December 2010.

Swoboda, J.S., Elwork, A., Sales, B.D., and Levine, D., (1978) Knowledge of and compliance with privileged communication and child-abuse reporting laws, Professional Psychology, Vol. 9(3), 444-457. 

Wednesday, July 9, 2014

Celebrity, Sexual Abuse and Societal Reaction


One of the biggest issues in sexual violence research, especially child sexual abuse research, is the lack of a coherent baseline. We read research like David Finklehor’s telling us that sexual abuse is, statistically, on the decrease (NY Times) while at the same time we are confronted with ever increasing media stories about the escalation of the reporting and unearthing of sexual violence cases.  The fact that sexual abuse has been under reported and under recorded historically, although this is starting to change in recent years (NSPCC), means that we never really, accurately,  know whether there has been an increase or decrease in recent years. This is stated even with the proviso that there are other data capture techniques which can be used in conjunction with police recording including, medical reports, social work reports and school reporting.  Hence, it difficult to truly get to grips with the nature, extent and reality of sexual violence in modern society and that is just focusing on westernised and developed countries, never mind developing nations. This knowledge vacuum has been, in part, replaced or supplemented with soft, experiential evidence provided in large part by the media, especially the television and print press. The ever increasing reporting of sexual abuse cases, particularly child sexual abuse cases, results in an ipso facto understanding, especially among the public and politicians, that there is more offending; for if offending was not increasing then there would be nothing to report? However, this is not necessarily the case, for as Greer & Reiner (2012) state the media can often misrepresent the abnormal as normal, therefore in their over reporting of unique cases they give the impression that there is more offending. Child sexual Abuse is a particularly potent case of this as it meets all the core components of newsworthiness generally containing, either, (1) a visible/spectacular act, (2) graphic presentation, (3) deviance, (4) sexual/political factors, or (5) individual pathology (Chinball, 1977).  The lack of a sexual violence baseline and issues in media reporting reach almost perfect storm portions with celebrity sexual offending.


In recent years, especially the last 10 years or so, there has been an onslaught in the reporting of, recording of and high profile media discussion of celebrity sexual abuse cases, on both sides of the Atlantic. It seems that since the Michael Jackson and Gary Glitter (Paul Gadd) cases in the late 90’s/early 2000’s there has been an increase in the reporting of sexual abuse by celebrities, historical and current, with a flood gate being opened. In the USA the big cases of Late has been the Jerry Sandusky, Steubenville, OH, and the Duke Lacrosse team, where in the UK there has been a number of historical (Jimmy Savile; Rolf Harris; Stuart Hall) and contemporary (Ian Watkins)individual perpetrator  cases as well as the suggestion of a cover up of sexual abuse by members of the government. This raises an important question, relating to media coverage and the lack of a baseline, has there actually been an increase in the rates of sexual abuse by celebrities or is it just that victims feel better able to report and police forces feel more confident to pursue these cases?  This piece will now discuss the central parts of the argument in turn,


(Sexual) Abuse by celebrities: There is no reason to believe that celebrities would be any more or any less susceptible to being perpetrators of sexual violence comparable to the ordinary members of the public from whence they came. However, what we do know is that celebrity is often linked with cognitive distortions, aspects or narcissism; where often times there whims maybe more likely to be catered to and aspects of transgressive behaviour (i.e., drugs, sexual promiscuity, minor offences, etc) either facilitated or tolerated. This means that being a celebrity can result in the person being treated differently than a “normal” non-celebrity individual. In addition, we know that “celebrity” sells papers and that there will be increased and in depth reporting of celebrity sexual abuse scandals.


Celebrity Culture and Celebrity worship: One of the big questions surrounding celebrity is why should we trust celebrities more than other people? Research has shown that Celebrity status holds a particular sway in modern society (McQuail, 2010). McCutcheon, Lange and Houran (2002) developed the “absorption–addiction” model of celebrity worship which consists of three levels;

1.       “Entertainment–Social” – whereby the individual discusses the behavior and attitudes of their favorite celebrity, this is a low level form of worship that is ultimately social and non-problematic.

2.       “Intense–Personal” – whereby the individual consistently thinks about their favorite celebrity, even at inopportune times, and this is an intermediate level of celebrity worship.

3.       “Borderline-Pathological” - whereby the individual is completely infatuated with their favorite celebrity and would do anything that they asked them to do. This is an extreme version of celebrity worship.


Additional research by North & Hargreves (2006) identified a fourth factor,


4.        “Deleterious Imitation” – whereby the individual is completely infatuated with their favorite celebrity and would go as far to mirror all their behaviors, including their illegal and transgressive ones. This, again, is an extreme version of celebrity worship.


Maltby et al’s research (2001, 2002, 2003, 2004, 2007) goes on to state that there is a relationship between celebrity worship, especially extreme celebrity worship, and mental illness. Individuals with tendencies towards extreme celebrity worship have been shown to have higher levels of vulnerability, personality problems, anxiety disorders, self harm and suicide. Which ties into issues surrounding celebrity and sexual abuse, for as we know vulnerable individuals are more likely to be targeted by sexual abusers, more susceptible to grooming and less likely to report abuse, especially in cases of child sexual abuse (Harrison, 2010). This becomes more problematic in regard to the reporting of these cases by victims because the victims who may report can be, certainly historically and less so now, be seen as problematic and unreliable witnesses by the police because of their vulnerabilities. The Ian Watkins case crystallized these issues with a series of unreliable witnesses (an ex-girlfriend who was a prostitute) as well as dedicated and obsessed vulnerable fans who where co-conspirators to his abuse who where in fact groomed and manipulated by him. The participation of vulnerable fans in abusive practices, although condemned by the press and the public (see the article and message board  responses below), ties in with research indicating that extreme celebrity worship, vulnerability and potential for delinquency all tie together (Sheridan, North, Maltby & Gillett, 2007).


Policing & celebrity sexual abuse: One of the main questions which has arisen as a result of the perceived increases in celebrity sexual abuse cases is the role of the police investigation. This is particularly salient in cases where the police are seeing to be complacent, complicit or absent from these cases. If you look at two cases from the UK (Jimmy Savile and Ian Watkins) you see evidence of a lack of police follow through at times, whereby people will report instances of abuse or suspensions to the police and they have not followed this up properly. In the Jimmy Savile investigation this lack of follow through can be explained, in part, by the societal attitudes to sexual abused at the time, Savile’s status as a celebrity with power and influence (i.e., closely tied to the establishment with high profile public supporters including high ranking police officers) and his personality all of which can been seen to intimate and dissuade investigations (Erooga, 2013). Over time, especially since the 60’s and 70’s, policing has changed and improved; however, the recent Ian Watkins case highlights that there are still issues with evidence indicating numbers reports to the police over a period of time and problematic online behaviour in open internet forums, which has resulted in an IPCC investigation into three police forces . There needs to be an open culture surrounding the policing of celebrity transgression, whether it is minor or serious, with police forces not being afraid to make difficult decisions, but as always these need to be based on evidence because false allegations can be as damaging as real ones (i.e., Michael Le Vell).


The recent high profile discussions of celebrity sexual abuse are important conversations to have, but we need to have them in the context of the role of celebrity in society, vulnerability amongst victims of this abuse and how to better prevent this abuse; how do we realistic manage and respond to celebrity in the culture of celebrity that we live in? The one thing that we need to be careful of is knee jerk political and public reaction, especially in terms of policy for as we have seen in the past with sex offender disclosure and now with anti-pornography legislation, this needs to be coherently through through.

 Kieran McCartan PhD

References


Chibnall, S. (1977). Law and Order News. London: Tavistock.


Erooga, M. (2013). The SAVILE Scandal: beginning to understand. NOTA News, 70, 8 – 11.


Greer, C., & Reiner, R (2012). Mediated mayhem: media, crime, criminal justice. In Maguire, M, Morgan, K and Reiner, R (Eds.). The Oxford handbook of criminology (5rd ed.), (376-416). Oxford: Oxford University Press.


Harrison, K. (2010). Dealing with High-Risk Sex Offenders in the Community: risk management, treatment and social responsibilities. Willan: Cullompton.


Maltby, J., Day, L., McCutcheon, L. E., Gillett, R., Houran, J. and Ashe, D. D. (2004). Personality and coping: A context for examining celebrity worship and mental health. British Journal of Psychology, 95: 411–428.


Maltby, J., Houran, J., Lange, R., Ashe, D. and McCutcheon, L. E. (2002). Thou shalt worship no other gods – Unless they are celebrities: The relationship between celebrity worship and religious orientation. Personality and Individual Differences, 32: 1157–1172.


Maltby, J., Houran, M. A. and McCutcheon, L. E. (2003). A clinical interpretation of attitudes and behaviors associated with celebrity worship. Journal of Nervous and Mental Disease, 191: 25–29.


Maltby, J., McCutcheon, L. E., Ashe, D. D. and Houran, J. (2001). The self-reported psychological well-being of celebrity worshippers. North American Journal of Psychology, 3: 441–452.


McCutcheon, L. E., Lange, R. and Houran, J. (2002). Conceptualization and measurement of celebrity worship. British Journal of Psychology, 93: 67–87.


McQuail, D. (2012). Mass Communication Theory, 6th Ed. London: Sage Publications.

North, A. C. and Hargreaves, D. J. (2006). Problem music and self-harming. Suicide and Life-Threatening Behavior, 36: 582–590.


Sheridan, L., North, A.C., Maltby, J. and Gillett, R. (2007). Celebrity worship, addiction and criminality. Psychology, Crime and Law, 559-571.


Monday, July 7, 2014

Robin Wilson steps down as SAJRT Chief Blogger

After several years at the helm of sajrt.blogspot.com, I will be relinquishing my role as the Chief Blogger. Keeping on top of things as a blogger can be a challenging endeavor under the best of circumstances, but my professional work beyond the blog has now grown to the point where I no longer believe I can do the blog justice.

Effective immediately, I am passing the reins to Dr. Kieran McCartan of the University of the West of England in Bristol, UK. Kieran is an energetic professional with strong convictions -- two qualities important in a blogger. He is also an ATSA member who has made significant contributions to that organization (and its sister organization NOTA).

Staying on as Associate Bloggers will be David Prescott and Jon Brandt. They have both added immeasurably to the blog's readership and coverage of the issues. From time to time, I may also have opportunities to chime in.

So, while I am bittersweet about moving on, Kieran and crew have my full respect, admiration, and confidence that they will continue to grow sajrt.blogspot.com into a site of significance in the prevention of sexual abuse.

Robin J. Wilson

Thursday, May 15, 2014

Assessing Adolescent Sexting

“Sexting with a bad outcome is called sexual harassment;
Sexting with a good outcome is called a date.”

A colleague recently posted a good question on a professional list-serv: 
I am doing an evaluation of a 16 year old male for probation and family court who sent multiple nude pics of himself to various peer aged females (14-16).  He also asked them to send him nude pics of themselves and continued to sext them after being told repeatedly to stop by the girls.  My question is how have people been assessing risk when asked by courts as I would assume the current juvenile risk measures are not valid for this population since I am doubtful that the research samples had those types of juveniles and behaviors in their samples.”
This question raises a number of important issues.  Other members of the listserv in question offered several responses, some of which have been incorporated into this commentary.   In an email exchange with the author (who gave permission to post the question) I confirmed that the request for an assessment was pre-adjudication.  I believe the author is correct, in that adolescent risk assessment tools were not normed on teenagers accused of sexting and, therefore, conventional adolescent risk assessment tools are not appropriate.  (If anyone disagrees with this point, or other statements, comments are welcomed at the end of this blog.)
Forensic risk assessments (somewhat by definition) are predicated on charges, adjudications, or convictions.  Some risk tools count “convictions” and therefore the “risk” in a risk assessment can be altered by a plea agreement or judicial determination. Dynamic risk factors are significant, particularly with teenagers.  It is also important to note that adolescent risk tools have a short life-expectancy – six months to a year, before dynamic considerations suppress static factors or invalidate previous assessments.
Some professionals might argue that psychosexual assessments should not be undertaken prior to adjudication or conviction because disclosures from the client, contained in the report, could be incriminating and the report itself could be detrimental.  In any forensic evaluation, professionals have a duty to victims and public safety but, for licensed mental health providers, professional ethics require advocacy for the primary client – the subject of the evaluation, and a just and balanced outcome.  If there is clarity that all the parties to the case might be in agreement on a disposition, a pre-adjudication evaluation supporting that outcome might well be in the best interest of the client.  If circumstances indicate that an evaluation is not likely to have an adverse affect on the client, a good psychosexual assessment might help guide all parties to a mutually beneficial outcome.  
Another issue raised by the question (and, surprisingly, often lacking in risk assessments) is, “Risk for what”? The obvious response is “reoffending,” but reoffending in what way?  More unwanted sexting?  Sexual harassment?  Contact offending?  Sexual “acting out” (or some other ambiguous term)?   Perhaps more than trying to determine the “risk of reoffending” in the scenario outlined above, the greater focus should be:  Are the girls safe?  Can the relationship violations be reconciled between the offender and victims?  Should he be allowed to remain in school?  Is he a danger to the community?  And, in short, how should these issues be addressed in light of prescriptions regarding Need and Responsivity?
With traditional risk tools being inappropriate for sexting, there is still other empirical information that can be included in an assessment.  Sexting between adolescents these days, even among young teens, is most often not deviant. It is, however, increasingly common among both males and females.   Janis Wolak, David Finkelhor and colleagues at the Crimes against Children Research Center at the University of New Hampshire have published research on sexting.  A 2011 CCRC article proposes a useful typology for sexting, but the report is already dated on the prevalence of sexting.  The Internet, computers, cell phones, and other smart devices are changing the landscape of interpersonal sexual behavior faster than research on adolescents can keep up.
I am not aware of any research to date that identifies sexting as a gateway behavior to contact offending. Sexting is too common these days for the behavior itself to be considered deviant, so what remains is sexting that was unwanted.  If sexting appears to be the digital-age equivalent of flashing or exposing, it could be addressed as such.  But sexting is typically an attempt at reciprocation – with a high potential to go awry.  Unwanted sexting is probably a failure to navigate social relationships – that is, sexting with a bad outcome is called sexual harassment; sexting with a good outcome is called a date.
Sexting is much more likely to be offensive than actually harmful.  Depending on circumstances, there is probably some small risk for repeat sexting – some teenagers are slow learners – but that's probably the worst case scenario.  Based on the information provided, this client is at low risk for “reoffending,” and in all likelihood, needs help with social skills. 
There is a well-established deterrent effect that comes with intervention.  Being told by his peers to not send any more sexual images is not the same as being directed to stop by police and the courts.  Detection, arrest, prosecution, probation, public humiliation, and shame by peers and family are powerful disincentives for reoffending.  This deterrent effect might be the single biggest reason why about 9 out of 10 sexual offenders will not reoffend, even with multiple victims prior to being caught.  Treatment seems to improve the outcome, but for those 9 out of 10 sexual offenders the first intervention stops sexual offending – one and done.
With the low base rate for sexual reoffending (broadly), there is perhaps an inordinate emphasis on risk, while client need and responsivity tend to be marginalized.  Hopefully a good psychosexual assessment gives appropriate weight and balance to the Risk, Need, and Responsivity elements of the client’s presentation and circumstances. Even with a thorough evaluation, sometimes a good psychosexual assessment is simplistically reduced by others to the evaluator's “pronouncement” of risk.  With an emphasis on Need and Responsivity, a good assessment can educate colleagues on the nature and prevalence of sexting, provide the court with prudent recommendations, and help to avoid the tendency of the juvenile system to overreact.
There is a much greater likelihood these days that schools and courts overreact than under-respond to mismanaged sexual behavior.   I recently had a client who was a high school senior and registered sex offender (a younger sibling when he was 14).  “Justin” allegedly sent a message to a younger male student apparently soliciting a relationship (both boys are in the GLBT support group at their school).  Justin denied any sexting, although he admitted to texting and Facebooking with some other boys. He also didn't know who, if anyone, might have been offended.  The school acknowledged that the complaint came anonymously.  They did not know the identity of the younger student or have any documentation of misconduct, but the school knew Justin was a RSO (per state law) and alleged that “sexual harassment” had occurred.   According to the school, to spare Justin any embarrassment, and to mitigate any further discomfort to the unknown younger student, the school suggested that it would be best for Justin to withdraw from school.  Justin had enough credits to graduate and feared that any actual determination of “sexual harassment” might lead to a probation violation or could be viewed as “reoffending.” Justin agreed to withdraw from school in April, missing the last two months of his senior year.   It seems unfortunate that both the school and Justin took the path of least resistance.  It was a lost opportunity for both the boys (and school guidance staff) to learn how to better manage teenage relationships, with an eye to preventing reoccurrences.
Summary
Young people accused of low-level sexual misconduct need skilled professional assistance for three reasons:  1.) for adolescents to understand risky or misguided sexual behaviors and achieve a course correction, 2.) to support other concerned adults to manage productive interventions, and 3.) to help avoid overreactions that might result in teenagers being labeled as sex offenders, with all the ensuing lifelong consequences.  When it comes to sexting (and most other misguided sexual interactions), a good assessment, supported by sound research, with prudent recommendations, may very well provide a roadmap for a just, appropriate, and balanced outcome for all concerned.
There are increasingly perilous challenges for teenagers to navigate interpersonal sexual connections in the digital age.  One result is an elusive sense of “offending,” and an overemphasis on criminal interventions.  By recognizing when sexual transgressions are more relationship violations than criminal conduct, we can help both offenders and victims repair damage, learn to better navigate the social minefield of interpersonal sex, and invest in safe, respectful, and healthy relationships. 
Jon Brandt, MSW, LICSW
St. Paul, MN