HOUSE OF REPRESENTATIVES
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CHILD ABUSE REPORTING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that in 2017, the child welfare services branch of the State's department of human services received 3,702 reports of child abuse. More than half of these reports were made by mandated reporters working in fields such as medicine, law enforcement, and social services. Unfortunately, despite the extent of reporting that does occur, many other instances of child abuse go unreported.
The legislature further finds that Hawaii is one of only a handful of states that do not include members of the clergy as mandatory reporters of child abuse and neglect. Additionally, sexual exploitation of children occurs online, making it easier for some predators to avoid detection and arrest. By requiring commercial computer technicians and commercial film and photographic print or image processors to report computer files containing child pornography to law enforcement, the State can protect more children from exploitation and abuse.
The purpose of this Act is to update Hawaii's child abuse and neglect mandated reporting law by adding members of the clergy, commercial computer technicians, commercial film and photographic print or image processors, and administrators and employees of any public or private organization whose duties require direct contact with or supervision of children, to the categories of persons who are required to report, based on California's Child Abuse and Neglect Reporting Act.
SECTION 2. Section 350-1.1, Hawaii Revised Statutes, is amended to read as follows:
"§350-1.1 Reports. (a) Notwithstanding any other state law concerning confidentiality to the contrary, the following persons who, in their professional or official capacity, have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, shall immediately report the matter orally to the department or to the police department:
(1) Any licensed or registered professional of the healing arts or any health-related occupation who examines, attends, treats, or provides other professional or specialized services, including but not limited to physicians, including physicians in training, psychologists, dentists, nurses, osteopathic physicians and surgeons, optometrists, chiropractors, podiatrists, pharmacists, and other health-related professionals;
(2) Employees or officers of any public or private school;
(3) Employees or officers of any public or private agency or institution, or other individuals, providing social, medical, hospital, or mental health services, including financial assistance;
(4) Employees or officers of any law enforcement agency, including but not limited to the courts, police departments, department of public safety, correctional institutions, and parole or probation offices;
(5) Individual providers of child care, or employees or officers of any licensed or registered child care facility, foster home, or similar institution;
(6) Medical examiners
or coroners; [
(7) Employees of any
public or private agency providing recreational or sports activities[
(8) Commercial film and photographic print or image processors;
(9) Commercial computer technicians;
(10) Members of the clergy or custodians of records therefor; provided that a clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication shall not be subject to the requirements of this section; provided further that nothing in this section shall be construed to modify or limit a clergy member's duty to report known or suspected child abuse or neglect when the clergy member is acting in some other capacity that would otherwise make the clergy member a mandated reporter; and
(11) Administrators and employees of any public or private organization whose duties require direct contact with or supervision of children; provided that this subsection shall not apply to an attorney that has an attorney-client relationship.
(b) Whenever a person designated in subsection (a) is a member of the staff of any public or private school, agency, or institution, that staff member shall immediately report the known or suspected child abuse or neglect directly to the department or to the police department and also shall immediately notify the person in charge or a designated delegate of the report made in accordance with this chapter.
The initial oral report shall be followed as soon as possible by a
report in writing to the department[
.]; provided that:
(1) If a police
department or the department of public safety is the initiating agency, a
written report shall be filed with the department for cases that the police or
the department of public safety takes further action on or for active cases in
the department under this chapter[
(2) All written reports
shall contain the name and address of the child and the child's parents or
other persons responsible for the child's care, if known, the child's age, the
nature and extent of the child's injuries, and any other information that the
reporter believes might be helpful or relevant to the investigation of the
child abuse or neglect[
(3) This subsection
shall not be construed to serve as a cause of action against the department,
the police, or the department of public safety[
(4) Before January 1, 2021, and through and including December 31, 2020, a member of the clergy, or a custodian of records therefor, may report to the department that the clergy member or custodian of records, in the person's professional capacity or within the scope of the person's employment other than during a penitential communication, had acquired knowledge or had a reasonable suspicion that a child was a victim of abuse or neglect and that the clergy member or custodian of records did not previously report the abuse. A person who makes a report pursuant to this paragraph shall not be subject to the penalty for nonreporting under subsection 350-1.2. This paragraph shall apply regardless of whether the victim of the known or suspected abuse or neglect has reached the age of eighteen by the time the report is made.
Any person subject to subsection (a) shall, upon demand of the
department or any police department, provide all information related to the
alleged incident of child abuse or neglect, including[
,] but not limited
to[ ,] medical records and medical reports, which was not included in the
written report submitted pursuant to subsection (c)[ .]; provided that:
(1) A commercial film and photographic print or image processor who has knowledge of or who observes, within the scope of the processor's professional capacity or employment, any film, photograph, videotape, negative, slide, or any representation of information, data, or an image, including any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disk, data storage medium, CD-ROM, computer‑generated equipment, or computer-generated image, depicting a child under eighteen years of age engaged in an act of sexual conduct, shall immediately or as soon as practicable, telephonically report the instance of suspected abuse to the police department of the county in which the images are seen. Within thirty-six hours of becoming aware of the suspected abuse, the person shall provide to that police department a written follow-up report of the incident with a copy of the image or material attached; and
(2) A commercial computer technician who has knowledge of or who observes, within the scope of the technician's professional capacity or employment, any representation of information, data, or an image, including any computer hardware, computer software, computer file, computer floppy disk, data storage medium, CD-ROM, computer-generated equipment, or computer-generated image that is retrievable in perceivable form and that is saved, transmitted, or organized on an electronic medium, depicting a child under eighteen years of age engaged in an act of sexual conduct, shall immediately or as soon as practicable, telephonically report the instance of suspected abuse to the police department of the county in which the images or materials are seen. As soon as practicable after becoming aware of the suspected abuse, the person shall provide to that police department a written follow-up report of the incident with a brief description of the images or materials. An employer of a commercial computer technician may establish internal procedures for facilitating reporting for the purpose of complying with this section. These procedures may direct employees who are mandated reporters under this section to transmit their reports to an employee who is designated by the employer to receive these reports. A commercial computer technician who transmits a report to a designated employee in accordance with an employer‑established procedure shall be deemed to have complied with the requirements of this section.
(e) The director may adopt, amend, or repeal rules, subject to chapter 91, to further define or clarify the specific forms of child abuse or neglect enumerated in section 350-1 for use in implementing this chapter; provided that rules adopted under this subsection shall be limited to such further or clarifying definitions.
(f) All employers of persons subject to subsection (a) shall provide statements to mandated reporters upon their hiring and before the start date of their employment. The statements shall be approved in advance by the department and shall clearly explain the employee's obligation to report pursuant to this section.
(g) As used in this section:
"Commercial computer technician" means a person who, for compensation, works for a company that is in the business of repairing, installing, or otherwise servicing a computer or computer component, including any computer part, device, memory storage or recording mechanism, auxiliary storage recording or memory capacity, or any other material relating to the operation and maintenance of a computer or computer network system. "Commercial computer technician" includes an employee designated by an employer to receive reports made pursuant to an internal reporting procedure that has been voluntarily established by the employer pursuant to subsection (d).
"Commercial film and photographic print or image processor" means a person who, for compensation, develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides, or who prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or an image, including any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disk, data storage medium, CD-ROM, computer-generated equipment, or computer-generated image. "Commercial film and photographic print or image processor" includes any employee of that person, but does not include a person who develops film, or makes prints or images, for a public agency.
"Electronic medium" includes any recording, CD-ROM, magnetic disk memory, magnetic tape memory, CD, DVD, thumb drive, or any other computer hardware or media.
"Member of the clergy" means a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or other religious organization.
"Penitential communication" means a communication, including a sacramental confession, that is intended to be kept confidential and is made to a member of the clergy who, in the course of the discipline or practice of the applicable religious organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of the applicable religious organization, has a duty to keep those communications secret.
"Sexual conduct" means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect on December 31, 2059.
DHS; Child Abuse and Neglect; Mandatory Reporting
Adds members of the clergy, commercial computer technicians, and commercial film, and photographic print or image processors to the categories of persons who are required to report child abuse and neglect to DHS or police. Provides a "safe harbor" through December 31, 2020, for reporting by clergy of known or suspected child abuse that was previously unreported and that did not arise during a penitential communication. Effective 12/31/2059. (HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.