SITTING at the crossroads where violated children, public pressure, and the United States Constitution meet abruptly, a trial judge notices the heavy increase in cases alleging child abuse (sexual or otherwise). In Massachusetts, the county-based district attorneys estimate a rise in reported cases from 130 in 1983 to 2,000 in 1987. Nationwide, according to the American Association for Protecting Children, the decade ending in 1985 saw an increase from 6,000 to 113,000.
Does this mean that more adults have begun abusing children? Is the answer, rather, that more children are coming forward? Or is the ballooning docket a reflection of a changed social attitude?
Since 1973, a Massachusetts statute, amended and strengthened over the years, has tried to encourage the reporting of offenses involving children. The law's contents and structure show dramatically why the courts are seeing more child-abuse cases, and why, here as elsewhere in the administration of justice, even the most straightforward measure entails unforeseen consequences.
The underlying idea is simple and salutary: Certain professionals are particularly likely to encounter evidence of children at risk; the law should require these people, willing or not, to bring that information promptly to someone who can render immediate aid and comfort.
Every part of the legislation, however, contains pitfalls that make achieving its admirable purpose difficult, if not hazardous.
Consider first the list of those required to report: fully 22 different categories, ranging from every conceivable health-care provider to court clerks, and expressly including teachers, firefighters, police, day-care workers, and counselors.
By reasonable implication it also covers the medical student working in hospitals, the candy-striper volunteer, and the mother supplementing the family income by baby-sitting a group of preschoolers. Only one category of child-contacting professionals has escaped: religious personnel, unless they otherwise fall within a listed class.
If one of those designated has, in her or his professional capacity, ``reasonable cause to believe'' that a child - any child - is suffering ``serious physical or emotional injury resulting from abuse,'' including sexual abuse; or ``neglect, including malnutrition,'' he or she must ``immediately'' report the matter to the Department of Social Service, and must follow up with a written report within 48 hours.
No statutorily designated reporter ``shall be liable in any civil or criminal action by reason of such report,'' whatever may have been the motive for reporting. On the other hand, failure to make either report triggers liability to a fine of up to $1,000. Conviction also leaves the nonreporter with a criminal record.
Massachusetts does not afford confidential status to communications with a health-care provider. It does protect in a limited way communications within the psychotherapeutic and social work relationships. The statute, however, explicitly eliminates this confidentiality.
Fairly read, therefore, the statute imposes an immense burden on each designated professional. ``Reasonable cause to believe,'' as a legal standard, means that honest belief is no defense.
The schoolteacher who says she did not report the pale, thin, listless child because the youngster looked normal to her runs the risk that a jury will later conclude that a reasonable person should have believed the child was undernourished.
The statute, in short, places a premium on whistle-blowing, indeed, on crying wolf.
Massachusetts has already had one prosecution. Even the most altruistic designated professional can hardly avoid drawing the self-saving conclusion: Better to sound 1,000 false alarms than risk paying $1,000 and receiving a criminal record, with its devastating effect on the right to continue in one's profession.
Any lawyer advising a school or a police union would be foolish not to advise her client group to report everything even remotely suspicious.
Thus we are left with a cruel, unintended paradox. The more attention the public gives child abuse, and the better known the reporting statute and its sanctions become, the more reports will flow in. But screening the tidal wave, much of it certainly trivial gossip, will perforce deflect professional and fiscal resources badly needed for prosecution and treatment.
The statute designed to bring prompt aid to imperiled children may thus exacerbate the very problem it seeks to ameliorate.
Hiller B. Zobel sits on the Massachusetts Superior Court.