GEORGIA CHILD ABUSE REPORTING REQUIREMENTS

Government Key Witness Recants Her Testimony

Ques: Why is the government still holding Dr. Malachi Z York-EL with these FACTS from there lead witness?

O.C.G.A. 19-7-5 Reporting of child abuse; when mandated or authorized; content of report; to whom made; immunity from liability; report based upon privileged communication; penalty for failure to report.

(a) The purpose of this Code section is to provide for the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear on the situation in an effort to prevent further abuses, to protect and enhance the welfare of these children, and to preserve family life wherever possible. This Code section shall be liberally construed so as to carry out the purposes thereof.

(b) As used in this Code section, the term:

    (1) "Abused" means subjected to child abuse.

    (2) "Child" means any person under 18 years of age.

    (3) 'Child abuse' means:

        (A) Physical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child;

        (B) Neglect or exploitation of a child by a parent or caretaker thereof;

        (C) Sexual abuse of a child; or

        (D) Sexual exploitation of a child.

However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be an "abused" child.

    (3.1) "Sexual abuse" means a person's employing, using, persuading, inducing, enticing, or coercing any minor who is not that person's spouse to engage in any act which involves:

        (A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

        (B) Bestiality;

        (C) Masturbation;

        (D) Lewd exhibition of the genitals or pubic area of any person;

        (E) Flagellation or torture by or upon a person who is nude;

        (F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

        (G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;

        (H) Defecation or urination for the purpose of sexual stimulation; or

        (I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

    "Sexual abuse" shall not include consensual sex acts involving persons of the opposite sex when the sex acts are between minors or between a minor and an adult who is not more than five years older than the minor. This provision shall not be deemed or construed to repeal any law concerning the age or capacity to consent.

    (4) "Sexual exploitation" means conduct by a child's parent or caretaker who allows, permits, encourages, or requires that child to engage in:

        (A) Prostitution, as defined in Code Section 16-6-9; or

        (B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100.

(c)(1) The following persons having reasonable cause to believe that a child has been abused shall report or cause reports of that abuse to be made as provided in this Code section:

        (A) Physicians licensed to practice medicine, interns, or residents;

        (B) Hospital or medical personnel;

        (C) Dentists;

        (D) Licensed psychologists and persons participating in internships to obtain licensing pursuant to Chapter 39 of Title 43;

        (E) Podiatrists;

        (F) Registered professional nurses or licensed practical nurses licensed pursuant to Chapter 24 of Title 43;

        (G) Professional counselors, social workers, or marriage and family therapists licensed pursuant to Chapter 10A of Title 43;

        (H) School teachers;

        (I) School administrators;

        (J) School guidance counselors, visiting teachers, school social workers, or school psychologists certified pursuant to Chapter 2 of Title 20;

        (K) Child welfare agency personnel, as that agency is defined pursuant to Code Section 49-5-12;

        (L) Child-counseling personnel;

        (M) Child service organization personnel; or

        (N) Law enforcement personnel.

    (2) If a person is required to report abuse pursuant to this subsection because that person attends to a child pursuant to such person's duties as a member of the staff of a hospital, school, social agency, or similar facility, that person shall notify the person in charge of the facility, or the designated delegate thereof, and the person so notified shall report or cause a report to be made in accordance with this Code section. A staff member who makes a report to the person designated pursuant to this paragraph shall be deemed to have fully complied with this subsection.

(d) Any other person, other than one specified in subsection (c) of this Code section, who has reasonable cause to believe that a child is abused may report or cause reports to be made as provided in this Code section.

(e) An oral report shall be made as soon as possible by telephone or otherwise and followed by a report in writing, if requested, to a child welfare agency providing protective services, as designated by the Department of Human Resources, or, in the absence of such agency, to an appropriate police authority or district attorney. If a report of child abuse is made to the child welfare agency or independently discovered by the agency, and the agency has reasonable cause to believe such report is true or the report contains any allegation or evidence of child abuse, then the agency shall immediately notify the appropriate police authority or district attorney. Such reports shall contain the names and addresses of the child and the child's parents or caretakers, if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and any other information that the reporting person believes might be helpful in establishing the cause of the injuries and the identity of the perpetrator. Photographs of the child's injuries to be used as documentation in support of allegations by hospital staff, physicians, law enforcement personnel, school officials, or staff of legally mandated public or private child protective agencies may be taken without the permission of the child's parent or guardian; provided, however, that any photograph taken pursuant to this Code section shall, if reasonably possible, be taken in a manner which shall not reveal the identity of the subject. Such photograph shall be made available as soon as possible to the chief welfare agency providing protective services and to the appropriate police authority.

(f) Any person or persons, partnership, firm, corporation, association, hospital, or other entity participating in the making of a report or causing a report to be made to a child welfare agency providing protective services or to an appropriate police authority pursuant to this Code section or any other law or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to this Code section or any other law is made in good faith. Any person making a report, whether required by this Code section or not, shall be immune from liability as provided in this subsection.

(g) Suspected child abuse which is required to be reported by any person pursuant to this Code section shall be reported notwithstanding that the reasonable cause to believe such abuse has occurred or is occurring is based in whole or in part upon any communication to that person which is otherwise made privileged or confidential by law.

(h) Any person or official required by subsection (c) of this Code section to report a suspected case of child abuse who knowingly and willfully fails to do so shall be guilty of a misdemeanor.

(i) A report of child abuse or information relating thereto and contained in such report, when provided to a law enforcement agency or district attorney pursuant to subsection (e) of this Code section or pursuant to Code Section 49-5-41, shall not be subject to public inspection under Article 4 of Chapter 18 of Title 50 even though such report or information is contained in or part of closed records compiled for law enforcement or prosecution purposes unless:

    (1) There is a criminal or civil court proceeding which has been initiated based in whole or in part upon the facts regarding abuse which are alleged in the child abuse reports and the person or entity seeking to inspect such records provides clear and convincing evidence of such proceeding; or

    (2) The superior court in the county in which is located the office of the law enforcement agency or district attorney which compiled the records containing such reports, after application for inspection and a hearing on the issue, shall permit inspection of such records by or release of information from such records to individuals or entities who are engaged in legitimate research for educational, scientific, or public purposes and who comply with the provisions of this paragraph. When those records are located in more than one county, the application may be made to the superior court of any one of such counties. A copy of any application authorized by this paragraph shall be served on the office of the law enforcement agency or district attorney which compiled the records containing such reports. In cases where the location of the records is unknown to the applicant, the application may be made to the Superior Court of Fulton County. The superior court to which an application is made shall not grant the application unless:

        (A) The application includes a description of the proposed research project, including a specific statement of the information required, the purpose for which the project requires that information, and a methodology to assure the information is not arbitrarily sought;

        (B) The applicant carries the burden of showing the legitimacy of the research project; and

        (C) Names and addresses of individuals, other than officials, employees, or agents of agencies receiving or investigating a report of abuse which is the subject of a report, shall be deleted from any information released pursuant to this subsection unless the court determines that having the names and addresses open for review is essential to the research and the child, through his or her representative, gives permission to release the information.

OPINIONS OF THE ATTORNEY GENERAL

"Cause to believe" is equivalent to "cause to suspect." -- For purposes of Georgia's child abuse reporting statute providing for protection of children whose health and welfare are adversely affected and threatened, "cause to believe" is equivalent to "cause to suspect." 1976 Op. Att'y Gen. No. 76- 131.

"Deprived" child includes one who is abused, neglected or exploited. -- Although this section does not explicitly mention "deprived" children as defined in Juvenile Court Code, said definition is certainly inclusive of a child who is abused, neglected or exploited. 1976 Op. Att'y Gen. No. 76-131.

Phrase "participating in any judicial proceeding" in subsection (d) clearly extends to filing of petition as well as mere testimony in proceeding initiated by others. 1967 Op. Att'y Gen. No. 67-70.

"Caretakers." -- Personnel of public and private schools are "caretakers" as defined in this section. 1987 Op. Att'y Gen. No. 87-29.

Scope of authority to investigate. -- The Department of Human Resources, pursuant to this section, has authority and responsibility only for investigating reports of suspected abuse where it is alleged or reasonably suspected that the abuse of the child was by a parent or caretaker. 1987 Op. Att'y Gen. No. 87-29.