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A Position of Trust II: Teachers Facing Prosecution for Failure to Report Child Abuse

By Gregg Woodnick and Isabel Ranney

When mandatory reporters fail to report suspected child abuse, they are complicit in letting the abuse continue. Educators, in particular, have such a unique and consistent level of interaction with children that makes them a reliable source of child abuse/neglect reports. Due to this, nearly all states, including Arizona, lists teachers as mandated reporters. But when mandatory reporters suspect abuse but are silent, this is also a form of violence, though silence is rarely prosecuted out of concern of discouraging good faith reporters. However, the recent prosecution of two former teacher’s aides in West Virginia for a failure to report abuse suggests that persons who stay silent may begin to face legal consequences.

Background

Toward the end of 2021, Nancy Boggs, a special needs teacher at an elementary school in West Virginia was indicted for twenty three (23) counts of battery and one (1) count of verbal abuse of a noncommunicative child [1]. The police used video footage from the inside of the classroom to identify three (3) students that Ms. Boggs was seen hitting, slapping, pulling their hair, verbally abusing, and slamming their faces into desks [2]. Boggs eventually pleaded guilty to ten (10) counts of battery and was sentenced to ten (10) years in prison—one for each count [3].

As the perpetrator of the abuse, Boggs’ sentencing is more than appropriate. But what was missing from the conversation was that teachers, especially special education teachers like Boggs, do not work alone. In fact, Boggs worked with two teacher’s aides.

This past week, a month after Boggs’ sentencing, two former teacher’s aides were charged with not reporting the abuse. The charges were brought under West Virginia’s mandatory reporting statute, which requires school employees to report abuse if they have “reasonable cause to suspect that a child is neglected or abused…”.  WV Code § 49-2-803(a) (2021). If found guilty, the teacher’s aides’ face at least ninety (90) days in jail and/or a fine of $5,000. WV Code § 49-2-812(a).

What if this happened in Arizona?

Arizona’s mandatory reporting statue is similar to that of West Virginia. In Arizona, when a mandatory reporter “reasonably believes that a minor has been the victim of physical injury, abuse, child abuse,” or neglect, they have a statutory duty to report their belief to the police and/or the Department of Child Safety (DCS). A.R.S. § 13-3620(A). Also like West Virginia, Arizona includes “school personnel” in it its list of mandatory reporters.

Arizona also provides education and training to its mandatory reporters to help ensure they are aware of their status as a mandated reporter and are familiar with the signs to look for and how to make a report. Specifically, the Arizona Education Association offers a list of potential signs and symptoms that may indicate a student is the victim or abuse or neglect [4]. DCS also has a recorded PowerPoint presentation that is available for all mandated reporters, but is designed primarily for educators [5].

A failure to report in Arizona is a class one misdemeanor, except in instances where the failure to report involves a “reportable offense,” in which case the mandatory reporter is guilty of a class six felony. A “reportable offense” includes a reasonable belief that a minor is the victim of child sex trafficking, incest, unlawful mutilation, surreptitious photographing, etc.

Based on the facts of this case, Boggs’ actions, while abhorrent, do not arise to the level of a “reportable offense.” Thus, the teacher’s aides would be guilty of a class one misdemeanor, which carries a sentence anywhere from no penalty to six months in jail.

Why does this matter?

Failing to report abuse is a rarely prosecuted, and often overlooked, crime. According to data collated by the Maricopa County Attorney’s Office (MCAO) in 2020, only fourteen people were being considered for charges regarding a failure to report. Out of the fourteen, three people had charges filed against them and one person’s allegations were furthered for more evidence. This meant that ten people were not charged with failing to report. This statistically insignificant data is particularly interesting given population in Maricopa County in 2020 was nearly 4.5 million people.

The logic behind not pursuing prosecution against those who fail to report is valid. Many fail to report because they do not feel comfortable doing so, they do not feel it is their place, or they convince themselves that they may be overreacting. Others fail to report out of fear of retaliation from the abuser. Whatever the reason, a failure to report can have deadly consequences and the simple solution is for mandatory reports to report suspicions of child abuse and neglect.

While this is a lesson for all educators on their responsibility as mandatory reporters, everyone (mandatory and non-mandatory) ought to be reminded that the data they provide to the hotline (or police as reporting obligation is satisfied with both avenues) is anonymous.  Yes, your name is not released in records given to the subject of the report. A.R.S. § 8-807(L).


[1] https://wvmetronews.com/2021/11/18/former-teacher-charged-with-alleged-abuse-in-special-needs-classroom/

[2] Id.

[3] https://wvmetronews.com/2022/05/31/former-kanawha-county-teacher-pleads-guilty-to-multiple-counts-of-battery-on-former-students/

[4] https://www.arizonaea.org/resource-library/mandatory-reporting

[5] https://dcs.az.gov/report-child-abuse/mandated-reporter-overview-training


Gregg Woodnick has been an attorney in Arizona for over 20 years.  He has trained many mandatory reporters, including doctors, physician assistants, mental health workers, educators, and (one time) the Catholic Diocese.

Isabel Ranney is a third-year law student at the Sandra Day O’Connor College of Law at Arizona State University, Associate Editor for the Law Journal for Social Justice, and law clerk at Woodnick Law. 

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