Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

Duty to Report Suspected Child

Abuse Under 42 U.S.C. § 13031

Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all

covered professionals who learn of suspected child abuse while engaged in enumerated

activities and professions on federal land or in federal facilities must report that abuse,

regardless of where the suspected victim is cared for or resides.

The fact that a patient has viewed child pornography may “give reason to suspect that a

child has suffered an incident of child abuse” under the statute, and a covered profes-

sional is not relieved of an obligation to report the possible abuse simply because nei-

ther the covered professional nor the patient knows the identity of the child depicted in

the pornography.

May 29, 2012

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF VETERANS AFFAIRS *

Section 13031 of title 42, a provision in the Victims of Child Abuse

Act of 1990 (“VCAA” or “Act”), Pub. L. No. 101-647, tit. II, § 226, 104

Stat. 4789, 4792, 4806, requires persons engaged in certain activities and

professions on federal lands or in federal facilities to report “facts that

give reason to suspect that a child has suffered an incident of child abuse”

if they learn such facts in the course of their professional activities. Fail-

ure to make a report required by section 13031 could subject such persons

to criminal penalties. See 18 U.S.C. § 2258. You have raised two ques-

tions about the scope of section 13031. See Letter for Eric Holder, Attor-

ney General, from Will A. Gunn, General Counsel, Department of Veter-

ans Affairs (Nov. 9, 2009) (“VA Letter”).

First, you have asked whether section 13031’s reporting requirement is

limited to situations in which the suspected victim of child abuse is cared

for or resides on federal land or in a federal facility. We conclude that it is

not. Instead, under the VCAA, all persons who learn of suspected child

abuse (as defined by the Act) while engaged in the enumerated activities

and professions on federal land or in federal facilities must report that

* Editor’s Note: After this opinion was issued, 42 U.S.C. § 13031 was reclassified

and renumbered as 34 U.S.C. § 20341. The statute has also repeatedly been amended

by Congress since 2012, but not in any way that appears to undermine the analysis or

conclusions reached by this opinion.

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36 Op. O.L.C. 167 (2012)

abuse, regardless of where the suspected victim is cared for or resides. We

recognize that the scope of some of the statutory language may be ambig-

uous, and that narrower readings of the reporting requirement find some

support in certain of the statute’s provisions. But we believe that section

13031, read as a whole and in light of its purpose, is best interpreted

broadly.

Second, you have inquired whether the VCAA’s reporting obligation is

triggered when a person covered by section 13031 learns that a patient

under his or her care has viewed child pornography, even if the person

does not know, and has no reason to believe the patient knows, the identi-

ty of the child or children depicted in the pornography. We conclude that

the fact that a patient has viewed child pornography may be a “fact[] . . .

giv[ing] reason to suspect that a child has suffered an incident of child

abuse” under section 13031, and that the statute does not require a cov-

ered professional to possess knowledge of the identity of an affected child

in order for the reporting duty to apply.

We have concluded that the interpretive questions you have raised can

be resolved using ordinary tools of statutory construction, so we have not

applied the rule of lenity even though the VCAA provides for criminal

penalties. We note, however, that a person who fails to make a report

required by section 13031 will not necessarily be subject to criminal

penalties under the statute. The criminal penalty provision contains no

explicit mens rea requirement, and thus one would almost certainly be

inferred. See United States v. X-Citement Video, Inc., 513 U.S. 64, 70

(1994). While we need not decide what mens rea would apply, a court

construing section 13031 might well require a defendant to have known

that a report was legally required before imposing criminal liability for a

failure to report. Such a reading would, among other things, address any

concern about imposing criminal liability on persons who lacked clear

notice that the failure to report in their particular circumstances was

unlawful.

I.

Congress enacted the VCAA, including section 13031, as title II of the

Crime Control Act of 1990. Pub. L. No. 101-647, §§ 201–255, 104 Stat. at

4792–4815. Section 13031 requires persons on “Federal land or in a

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

federally operated (or contracted) facility” who are engaged in certain

activities—individuals the statute calls “[c]overed professionals”—to

report suspected incidents of child abuse. 42 U.S.C. § 13031(a)–(b)

(2006). Specifically, section 13031(a) provides that

[a] person who, while engaged in a professional capacity or activity

described in subsection (b) of this section on Federal land or in a

federally operated (or contracted) facility, learns of facts that give

reason to suspect that a child has suffered an incident of child abuse,

shall as soon as possible make a report of the suspected abuse to the

agency designated under subsection (d) of this section. 1

Section 13031(d) directs the Attorney General to designate the agency

or agencies to which the reports described in subsection (a) should be

made. It states:

For all Federal lands and all federally operated (or contracted) fa-

cilities in which children are cared for or reside, the Attorney Gen-

eral shall designate an agency to receive and investigate the reports

described in subsection (a) of this section. By formal written agree-

ment, the designated agency may be a non-Federal agency. When

1 Subsection (b) provides:

Persons engaged in the following professions and activities are subject to the re-

quirements of subsection (a) of this section:

(1) Physicians, dentists, medical residents or interns, hospital personnel and

administrators, nurses, health care practitioners, chiropractors, osteopaths,

pharmacists, optometrists, podiatrists, emergency medical technicians, ambu-

lance drivers, undertakers, coroners, medical examiners, alcohol or drug treat-

ment personnel, and persons performing a healing role or practicing the healing

arts.

(2) Psychologists, psychiatrists, and mental health professionals.

(3) Social workers, licensed or unlicensed marriage, family, and individual

counselors.

(4) Teachers, teacher’s aides or assistants, school counselors and guidance per-

sonnel, school officials, and school administrators.

(5) Child care workers and administrators.

(6) Law enforcement personnel, probation officers, criminal prosecutors, and

juvenile rehabilitation or detention facility employees.

(7) Foster parents.

(8) Commercial film and photo processors.

169

36 Op. O.L.C. 167 (2012)

such reports are received by social services or health care agencies,

and involve allegations of sexual abuse, serious physical injury, or

life-threatening neglect of a child, there shall be an immediate refer-

ral of the report to a law enforcement agency with authority to take

emergency action to protect the child. All reports received shall be

promptly investigated, and whenever appropriate, investigations

shall be conducted jointly by social services and law enforcement

personnel, with a view toward avoiding unnecessary multiple inter-

views with the child.

Consistent with this directive, the Attorney General has issued a regula-

tion designating the agencies authorized to receive and investigate reports

of child abuse submitted under section 13031(a). That rule, which appears

as 28 C.F.R. § 81.2 (2010), provides:

Reports of child abuse required by 42 U.S.C. 13031 shall be made

to the local law enforcement agency or local child protective ser-

vices agency that has jurisdiction to investigate reports of child

abuse or to protect child abuse victims in the land area or facility in

question. Such agencies are hereby respectively designated as the

agencies to receive and investigate such reports, pursuant to 42

U.S.C. 13031(d), with respect to federal lands and federally operated

or contracted facilities within their respective jurisdictions, provided

that such agencies, if non-federal, enter into formal written agree-

ments to do so with the Attorney General, her delegate, or a federal

agency with jurisdiction for the area or facility in question. If the

child abuse reported by the covered professional pursuant to 42

U.S.C. 13031 occurred outside the federal area or facility in ques-

tion, the designated local law enforcement agency or local child pro-

tective services agency receiving the report shall immediately for-

ward the matter to the appropriate authority with jurisdiction outside

the federal area in question.

Att’y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996).

Under section 13031, “the term ‘child abuse’ means the physical or

mental injury, sexual abuse or exploitation, or negligent treatment of a

child.” 42 U.S.C. § 13031(c)(1). Section 13031 further explains that “the

term “sexual abuse” includes the employment, use, persuasion, induce-

ment, enticement, or coercion of a child to engage in, or assist another

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

person to engage in, sexually explicit conduct or the rape, molestation,

prostitution, or other form of sexual exploitation of children, or incest

with children.” Id. § 13031(c)(4). “[T]he term ‘exploitation’ means child

pornography or child prostitution.” Id. § 13031(c)(6).

Two other provisions in section 13031 are also relevant. Section

13031(e) provides that “[i]n every federally operated (or contracted)

facility, and on all Federal lands, a standard written reporting form, with

instructions, shall be disseminated to all mandated reporter groups,” and

makes clear as well that although “[u]se of the form shall be encouraged,

. . . its use shall not take the place of the immediate making of oral reports

. . . when circumstances dictate.” Section 13031(h) provides that “[a]ll

individuals in the occupations listed in subsection (b)(1) of this section

who work on Federal lands, or are employed in federally operated (or

contracted) facilities, shall receive periodic training in the obligation to

report, as well as in the identification of abused and neglected children.”

Finally, in section 226(g)(1) of the VCAA (codified as amended at 18

U.S.C. § 2258), Congress criminalized the failure to report child abuse as

mandated by 42 U.S.C. § 13031. The criminal provision states:

A person who, while engaged in a professional capacity or activity

described in subsection (b) of section 226 of the Victims of Child

Abuse Act of 1990 [42 U.S.C. § 13031] on Federal land or in a fed-

erally operated (or contracted) facility, learns of facts that give rea-

son to suspect that a child has suffered an incident of child abuse, as

defined in subsection (c) of that section, and fails to make a timely

report as required by subsection (a) of that section, shall be fined

under this title or imprisoned not more than 1 year or both.

18 U.S.C. § 2258 (2006). When the VCAA was originally enacted, the

offense was a Class B misdemeanor punishable by six months of impris-

onment, Pub. L. No. 101-647, § 226(g)(1), 104 Stat. at 4808; see 18

U.S.C. § 3581(b)(7) (1988), but in 2006, Congress amended 18 U.S.C.

§ 2258 by raising the maximum punishment from six months to one year

of imprisonment. Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, § 209, 120 Stat. 587, 615. Other than this change,

Congress has amended neither 18 U.S.C. § 2258 nor 42 U.S.C. § 13031

since it enacted the provisions in 1990.

171

36 Op. O.L.C. 167 (2012)

II.

A.

We first consider the circumstances under which covered professionals

must report suspected child abuse under the VCAA. 2 We conclude that,

although no interpretation of section 13031 perfectly reconciles all of its

provisions, section 13031 is best read to impose a reporting obligation on

all persons who, while engaged in the covered professions and activities

on federal lands or in federal facilities, learn of facts that give reason to

suspect that child abuse has occurred, regardless of where the abuse might

have occurred or where the suspected victim is cared for or resides. In

reaching this conclusion, we considered the construction of section 13031

that you propose, as well as two other readings that would narrow the

reporting obligation. As explained below, while all of these narrowing

constructions find support in certain provisions of the statute, they are

also in significant tension with other parts of section 13031, leading us to

conclude that section 13031 “‘as a whole’” is best read to impose the

broad reporting obligation described above. See United States v. Atl.

Rsch. Corp., 551 U.S. 128, 135 (2007) (quoting King v. St. Vincent’s

Hosp., 502 U.S. 215, 221 (1991)).

Section 13031(a) sets forth the reporting requirement that is the

VCAA’s core directive. It provides that a covered professional engaged in

a covered activity “on Federal land or in a federally operated (or contract-

ed) facility” who “learns of facts that give reason to suspect that a child

2 In preparing our opinion, we considered views provided by your office, the Depart-

ment of Justice’s Criminal Division, the Department of Defense, the Department of State,

and the Attorney General’s Advisory Council. See E-mail for Jeannie S. Rhee, Deputy

Assistant Attorney General, Office of Legal Counsel (“OLC”), from Alexandra Gelber,

Criminal Division (Jan. 15, 2010, 10:15 AM); E-mail for Jeannie S. Rhee, Deputy Assis-

tant Attorney General, OLC, from John Casciotti, Office of General Counsel, Department

of Defense (Feb. 26, 2010, 5:02 PM); E-mail for Jeannie S. Rhee, Deputy Assistant

Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of

State (July 21, 2010, 2:35 PM); E-mail for Cristina M. Rodríguez, Deputy Assistant

Attorney General et al., from Carter Stewart, United States Attorney for the Southern

District of Ohio (Feb. 3, 2012, 6:45 PM). We also solicited the opinion of the Department

of Health and Human Services, which indicated that it “has no view about the interpreta-

tion advanced by the Veterans Administration.” E-mail for Jeannie S. Rhee, Deputy

Assistant Attorney General, OLC, from Elizabeth J. Gianturco, Senior Advisor to the

General Counsel, Department of Health and Human Services (Apr. 21, 2010, 2:16 PM).

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

has suffered an incident of child abuse, shall as soon as possible make a

report of the suspected abuse to the agency designated under subsection

(d) of this section.” On its face, this is a broad provision: It applies to

covered professionals on all federal lands and in all federal facilities and

requires a report as soon as possible no matter where the suspected child

victim resides, is cared for, or may have been abused. The express incor-

poration of subsection (d), however, gives rise to doubt about the scope of

subsection (a)’s reporting requirement, because subsection (d) appears to

require the Attorney General to designate an agency to receive reports

only “[f]or all Federal lands and all federally operated (or contracted)

facilities in which children are cared for or reside.” The central question,

then, is whether the cross-reference to subsection (d) limits subsection

(a)’s otherwise broad language, and if so, in what way. 3

You suggest that it would be reasonable to read the reporting require-

ment as applying “only with regard to suspected abuse of children resid-

ing or cared for on Federal lands and in federally operated and contracted

facilities,” because “42 U.S.C. § 13031(a) requires reporting only to

agencies as designated under subsection (d), and subsection (d) provides

for designation only of agencies to receive and investigate reports for

Federal reservations in which children are cared for or reside.” VA Letter

at 2. In other words, you maintain that, because subsection (d) specifies

agencies to receive reports only for “Federal lands and . . . facilities in

which children are cared for or reside,” Congress intended to require

reports only for suspected abuse of children who reside or are cared for on

federal lands or in federal facilities. Moreover, it might be argued that

when the Attorney General designates an agency to receive reports for

federal lands and facilities in which children are not cared for and do not

reside, he is not making designations “under” subsection (d), because that

provision expressly addresses designations only for federal lands and

facilities “in which children are cared for or reside.” This construction of

section 13031, in your view, would appropriately align the location of the

3 We assume for purposes of this opinion, as do you, that the phrase “in which chil-

dren are cared for or reside” modifies both “Federal lands” and “federally operated (or

contracted) facilities.” VA Letter at 2 (“subsection (d) provides for designation . . . of

agencies to receive and investigate reports for Federal reservations in which children

are cared for or reside”). The Attorney General’s regulations do not address the issue,

28 C.F.R. pt. 81 (2010), nor do any of the submissions we received.

173

36 Op. O.L.C. 167 (2012)

suspected child victims with subsection (d)’s designation of agencies to

receive reports.

This interpretation is not without some force, but we believe it is incon-

sistent with other subsections of section 13031 and with the statute

viewed in its entirety. See Davis v. Mich. Dep’t of Treasury, 489 U.S.

803, 809 (1989) (“It is a fundamental canon of statutory construction that

the words of a statute must be read in their context and with a view to

their place in the overall statutory scheme.”). As noted above, Congress

phrased subsection (a) using broad language that contains no limitation on

the federal lands or facilities in which reporting is required, and no resi-

dence-based limitation on the suspected child victims whose potential

abuse can give rise to a reporting obligation. In fact, section 13031 as a

whole is devoid of any language that explicitly limits the suspected child

victims whose potential abuse triggers the reporting requirement.

If Congress had intended to limit the scope of the VCAA’s reporting

requirement in the significant manner you propose, an isolated cross-

reference to subsection (d) would have been an obscure and backhanded

way to do so. Cf. Allied Chem. & Alkali Workers of Am., Local Union

No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170–71 (1971) (“To

accept the Board’s reasoning that the union’s § 302(c)(5) responsibilities

dictate the scope of the § 8(a)(5) collective-bargaining obligation would

be to allow the tail to wag the dog.”). Subsection (d) is entitled “[a]gency

designated to receive report and action to be taken,” and purports to

address only the agencies to which reports must be made, not the profes-

sionals who must make reports or the children who may be the subject of

reports. Nothing in subsection (d) expressly narrows the scope of potential

child victims covered by the reporting requirement. Cf. Comm’r v. Clark,

489 U.S. 726, 739 (1989) (“In construing provisions . . . in which a gen-

eral statement of policy is qualified by an exception, we usually read the

exception narrowly in order to preserve the primary operation of the

provision.”).

Indeed, subsection (d) does not say that the Attorney General may only

designate agencies to receive reports for federal lands and facilities “in

which children are cared for or reside.” It simply specifies that the Attor-

ney General “shall designate an agency to receive and investigate” reports

for such lands and facilities, saying nothing about what the Attorney

General should do with respect to other federal lands and facilities. And in

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

implementing this authority, the Attorney General has in fact specified

reporting locations for all covered professionals who learn of any covered

abuse while engaged in their profession or activity on any federal land or

facility, not solely abuse connected to lands or facilities where children

are cared for or reside. See 28 C.F.R. § 81.2.

The broad reading of the reporting requirement gains further support

from two other provisions in the VCAA that unambiguously apply to all

federal lands and facilities, not just those where children are cared for or

reside. Subsection (e) requires dissemination of a standard written report-

ing form to “all mandated reporter groups” “[i]n every federally operated

(or contracted) facility, and on all Federal lands.” In other words, report-

ing forms must be disseminated not only to federal lands and facilities

where children are cared for or reside, but to all federal lands and facili-

ties. This provision thus appears to presume that mandated reporter

groups exist in every federally operated or contracted facility and on all

federal lands. This presumption, in turn, strongly suggests that Congress

intended to require the reporting of abuse discovered by covered profes-

sionals in the course of their covered activities on all federal lands and in

all federal facilities, not simply abuse that occurs on the lands and in the

facilities where children are cared for or reside.

Subsection (h) embodies a similar premise. That provision, entitled

“[t]raining of prospective reporters,” requires “periodic training in the

obligation to report, as well as in the identification of abused and ne-

glected children,” for “[a]ll individuals in the occupations listed in sub-

section (b)(1) of this section who work on Federal lands, or are employed

in federally operated (or contracted) facilities.” Again, this provision

appears to assume that all individuals who work in the listed occupations

on all federal lands and in all federal facilities—not solely those where

children are cared for or reside—might encounter suspected abuse that

must be reported. This further suggests that Congress intended to require

covered professionals working on all federal lands and in all federal

facilities to report suspected abuse, because the across-the-board training

requirement otherwise would serve no clear purpose.

The broad reading of the reporting requirement is also consistent with

the scope of subsection (b). Subsection (b)’s specific list of relevant

professions and activities echoes the mandatory reporter provisions of

numerous state laws requiring the reporting of abuse. Compare 42 U.S.C.

175

36 Op. O.L.C. 167 (2012)

§ 13031(b) (list set forth supra note 1), with Child Welfare Information

Gateway, Dep’t of Health & Human Services, Mandatory Reporters of

Child Abuse and Neglect: Summary of State Laws at 2 (Apr. 2010)

(“Summary of State Laws”), http://www.childwelfare.gov/systemwide/

laws_policies/statutes/manda.pdf (last visted ca. May 2012). The report-

ing requirement, as defined in subsections (a) and (b), focuses on the

nature of the covered professional’s employment activity, not the place

where the child victim is cared for or resides. Indeed, many of the cov-

ered professionals—such as film processors, coroners, and ambulance

drivers—would likely learn of suspected child abuse in circumstances

that provide no indication whether the child victim is cared for or resides

on federal lands or in a federal facility.

The VCAA’s legislative history also reflects a congressional intent to

enact a far-reaching reporting obligation that would protect as many

victims of suspected child abuse as possible. Senator Biden, a co-sponsor

of the legislation, called it a “sweeping title aimed at mak[ing] our crimi-

nal justice system more effective in cracking down on child abusers, and

more gentle in dealing with the child abuse victims.” 136 Cong. Rec.

36,312 (1990); see also id. at 16,240 (statement of Sen. Biden) (“[Y]ou,

the innocent bystander, you, the third party, you have a legal obligation to

report when you observe or have reason to believe that an abuse of an

innocent child takes place.”); id. at 16,238 (statement of co-sponsor Sen.

Reid) (“A critical step in protecting our children is to identify child vic-

tims . . . before it is too late. My proposed bill of rights requires certain

professionals to identify who they suspect are victims of abuse and ne-

glect.”).

As we recognize above, our interpretation of the statute does not recon-

cile perfectly all of the statute’s parts, specifically subsection (a)’s cross-

reference to subsection (d). Read in context, however, we think subsection

(d) need not and should not be construed to limit either the scope of the

reporting requirement under subsection (a) or the Attorney General’s

authority to designate agencies to receive the required reports. Such an

interpretation would be in marked tension with the breadth of subsection

(a)’s terms, the requirements of subsections (e) and (h), the scope of

subsection (b), and the general evidence of Congress’s intent.

The two additional narrowing constructions we identified also fail to

make better sense of the statute than the broad reading we have adopted.

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

We first considered whether the reporting requirement should be limited

to situations involving children who had been abused on federal lands or

facilities. But under this reading, as under your suggested reading, we

would have to conclude that Congress acted to limit the apparently broad

reporting requirement set forth in subsection (a) through the oblique

mechanism of a cross-reference to subsection (d). What is more, this

reading, too, would make it difficult to explain the breadth of the mandat-

ed training and provision of forms on all federal lands and in all federal

facilities in subsections (e) and (h) and the scope of covered professionals

in subsection (b). Further, and significantly, this reading would narrow the

class of children whose suspected abuse could give rise to a required

report, despite the fact that no provision in the statute—including subsec-

tion (d)—addresses the location of the suspected abuse.

We also considered a third alternative reading—one that would require

reporting only from covered professionals who engage in the specified

professions and activities on federal lands or in federal facilities where

children are cared for or may have been abused. This construction, too,

would rest on a presumption that Congress intended to limit the scope of

the reporting obligation through a single cross-reference to subsection (d).

Further, it would be in particularly sharp tension with subsections (e) and

(h), which require training and distributing reporting forms on all federal

lands and in all federal facilities, not just where children are cared for or

reside. This reading would also produce an anomalous result—a profes-

sional’s obligation to report facts giving reason to suspect that a child

unconnected with federal lands or facilities had been abused would turn

on the apparently unrelated question whether other children happened to

be cared for or reside on the lands or in the facility where the professional

works. In our judgment, these difficulties make this interpretation less

coherent than the broad reading we have given the statute.

We therefore conclude that the best reading of section 13031 as a whole

is that a covered professional is required to report suspected child abuse

discovered while engaged in the professions or occupations specified in

subsection (b) on federal lands or in federal facilities. 4

4 This interpretation of the reporting requirement is consistent with the law of most

states. “All States, the District of Columbia, [and all U.S. territories] have statutes identi-

fying persons who are required to report child maltreatment under specific circumstanc-

es,” and, in most states, the list of individuals with reporting obligations closely resembles

177

36 Op. O.L.C. 167 (2012)

B.

We next consider whether “the mere knowledge that a patient has

viewed child pornography [would] trigger a covered professional’s duty

to report the suspected child abuse, even if he or she does not know the

identity of the child or children depicted and has no reason to believe the

patient knew their identity.” VA Letter at 2. 5 In raising this question, you

point to language in a later part of subsection (d) providing that, when

reports required by subsection (a) are “received by social services or

health care agencies, and involve allegations of sexual abuse, serious

physical injury, or life-threatening neglect of a child, there shall be an

immediate referral of the report to a law enforcement agency with authori-

ty to take emergency action to protect the child.” Based on subsection

(d)’s reference to “the” child, you note that, while it is clear that “the

[reporting] requirement applies when the identity of an abused child can

be determined by the covered provider so that the law-enforcement agen-

cy with jurisdiction can be identified, . . . it is less clear . . . that it applies

when that is not the case.” VA Letter at 2. 6 We conclude, however, that

the text of the statute covers the situation you describe.

the list of covered professionals in section 13031. Summary of State Laws at 1–2. In fact,

some jurisdictions require all persons, not just certain professionals, to report suspected

child abuse. Id. at 3. Thus, many, if not all, covered professionals who learn of suspected

child abuse on federal lands or in federal facilities would also be required to report under

state laws. Covered professionals should therefore consult relevant state law to ensure that

they are fully informed about the scope of their legal reporting requirements.

5 As we have noted, section 13031(b) subjects a wide range of individuals to the re-

porting duty of subsection (a), including physicians, pharmacists, school officials, deten-

tion facility employees, and commercial film and photo processors. See supra note 1

(quoting 42 U.S.C. § 13031(b)). Those covered professionals thus may learn of possible

child abuse from a variety of individuals besides those commonly referred to as “pa-

tients.” For simplicity, however, we use the term “patient” as shorthand for any person

from whom a covered professional may learn of potential child abuse.

6 Similarly, the Department of Defense states that its relevant policy “does not con-

template that the statute applies in a situation where the patient merely blurts out that he

has an addiction to child pornography.” Instead, under its policy, reporting would be

required in contexts where the patient “is drawn to a particular child,” “knows the identity

or whereabouts of a child depicted in the pornography,” “help[s] to produce the pornogra-

phy,” or in other contexts where “there is an identifiable child or identifiable children that

could be the subject of action by the child protective agency.” E-mail for Jeannie S. Rhee,

Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Coun-

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Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031

The text of section 13031(a) imposes a reporting duty on a covered

professional “who, while engaged in a professional capacity or activity

described in subsection (b) . . . , learns of facts that give reason to sus-

pect that a child has suffered an incident of child abuse.” “[C]hild abuse,”

in turn, is defined as “the physical or mental injury, sexual abuse or ex-

ploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1).

The statute further provides that “the term ‘sexual abuse’ includes the

employment [or] use . . . of a child to engage in . . . sexual exploitation of

children,” and that “the term ‘exploitation’ means child pornography or

child prostitution.” Id. § 13031(c)(4), (6). Under these definitions, cov-

ered professionals must report suspected abuse if they learn of facts

giving reason to suspect that a child “has suffered an incident of [em-

ployment or use to engage in child pornography],” 7 or “has suffered an

incident of [child pornography].”

Although section 13031 does not define the term “child pornography,”

it is defined elsewhere in the U.S. Code as

any visual depiction, . . . whether made or produced by electronic,

mechanical, or other means, of sexually explicit conduct, where—

sel, Department of Defense (Feb. 26, 2010, 5:02 PM). The Department of State “does not

have a formal position or policy addressing whether the reporting requirement is triggered

when a covered professional learns that someone has viewed child pornography, but the

professional does not know the identity of the child or children depicted and has no

reason to believe that the viewer knows their identities.” E-mail for Jeannie S. Rhee,

Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser,

Department of State (July 21, 2010, 2:35 PM). It recognizes, however, that this situation

“may trigger other actions including the enforcement of child pornography laws, if

applicable, or internal discipline.” Id.

7 The substitution in the text is not completely straightforward, in that the statute de-

fines “exploitation”—without any qualification—to include “child pornography or child

prostitution,” but defines “sexual abuse” to include “rape, molestation, prostitution, or

other form[s] of sexual exploitation of children.” Compare 42 U.S.C. § 13031(c)(6)

(definition of “exploitation”), with id. § 13031(c)(4) (definition of “sexual abuse”). We do

not think, however, that the statute intends to draw a strong distinction between “exploita-

tion” and “sexual exploitation.” The latter phrase is not a defined term. And the statute in

other respects seems to treat the two terms as essentially interchangeable. In particular,

the definition of “sexual abuse” expressly provides that “prostitution . . . of children” is a

form of “sexual exploitation of children,” and the definition of “exploitation” similarly

provides that “child prostitution” is a form of “exploitation.” Id. § 13031(c)(4), (6).

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(A) the production of such visual depiction involves the use of

a minor engaging in sexually explicit conduct;

(B) such visual depiction is . . . of a minor engaging in sexually

explicit conduct; or

(C) such visual depiction has been created, adapted, or modi-

fied to appear that an identifiable minor is engaging in sexually

explicit conduct.

18 U.S.C. § 2256(8). 8 This definition is consistent with dictionary defini-

tions of child pornography. See, e.g., Black’s Law Dictionary 1279 (9th

ed. 2009) (defining “child pornography” as “[m]aterial depicting a person

under the age of 18 engaged in sexual activity”).

Under these definitions, child pornography is not a specific action or

set of actions, but an end product, a particular kind of visual depiction that

is “made or produced.” 18 U.S.C. § 2256(8). It is thus not entirely clear

what it means “to engage in child pornography,” or for “a child” to have

“suffered an incident of” child pornography. Notably, however, certain

other forms of “child abuse” in section 13031 are also defined as end

results rather than actions. “[P]hysical injury,” for example, is defined to

include, among other things, “lacerations, fractured bones, burns, [and]

internal injuries.” 42 U.S.C. § 13031(c)(2). And it is relatively straight-

forward to conclude that a child has “suffered an incident of” lacerations

or fractured bones if the child has been subjected to physical abuse that

results in those injuries. We think it is similarly clear that, whatever else

the phrase may include, a person has “engage[d] in child pornography” if

that person has produced or created pornographic images of children, and

that “a child has suffered an incident of ” child pornography if that child

has been made the subject of pornographic images. The pornography is “a

permanent record” of the abusive conduct of creating a pornographic

image of a child. New York v. Ferber, 458 U.S. 747, 759 (1982).

Based on this analysis, we conclude that a covered professional who

learns that a patient under his or her care has viewed child pornography

may be aware of “facts that give reason to suspect that a child”—the

8Other definitions in section 13031, including the definition of “sexually explicit con-

duct”—a concept closely related to “child pornography,” as the definition quoted above

makes clear—track definitions in the same chapter (chapter 110) of the criminal code.

Compare 42 U.S.C. § 13031(c)(5) (2006), with 18 U.S.C. § 2256(2) (2006).

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subject of the specific pornographic images viewed by the patient—“has

suffered an incident of child abuse.” 42 U.S.C. § 13031(a).

We do not believe a covered professional in such a situation is relieved

of an obligation to report such facts simply because he or she does not

know or have reason to know, or have reason to believe a patient knows,

the identity of the child depicted in the pornography. Subsections (a) and

(d) of section 13031 do not require, either expressly or by implication,

that a covered professional (or his or her patient) know the identity of the

child or children abused in order to have a reporting obligation. We gen-

erally “‘resist reading words or elements into a statute that do not appear

on its face.’” Dean v. United States, 556 U.S. 568, 572 (2009) (quoting

Bates v. United States, 522 U.S. 23, 29 (1997)). Moreover, imposing a

requirement that the victim’s identity be known would be in tension with

Congress’s protective purpose. See, e.g., 136 Cong. Rec. 36,312 (1990)

(statement of Sen. Biden) (noting that the statute would “make [the]

criminal justice system more effective in cracking down on child abus-

ers”).

Even assuming that the statute’s references to “a child” in section

13031(a) and (d) limit the reporting requirement to situations involving

“a” specific, potentially identifiable child, that limitation provides no

basis for imposing the additional prerequisites to reporting that the

covered professional know or have reason to believe his or her patient

knows the identity of a child depicted in pornography the patient admits

to viewing. Pornography may well involve “a” specific, potentially

identifiable child even if neither covered professionals nor their patients

know the child’s identity. Even if covered professionals (or their pa-

tients) do not know the identity of any children depicted in pornography

viewed by a patient, a report may lead authorities to specific, identifia-

ble children. While some child pornography may be the work of profes-

sionals and therefore difficult to link to specific identifiable children,

other such images are homemade recordings, taken in domestic contexts,

of sexually abusive acts “committed against young neighbors or family

members,” and therefore traceable through law enforcement investiga-

tion to a particular child or children. Philip Jenkins, Beyond Tolerance:

Child Pornography on the Internet 82 (2001); see also Richard Wortley

& Stephen Smallbone, Community Oriented Policing Services, Dep’t of

Justice, Problem-Oriented Guides for Police, Problem-Specific Guides

Series No. 41, Child Pornography on the Internet at 9 (2006), http://

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36 Op. O.L.C. 167 (2012)

www.cops.usdoj.gov/Publications/e04062000.pdf (last visited ca. 2012)

(“[M]ore commonly, amateurs make records of their own sexual abuse

exploits, particularly now that electronic recording devices such as

digital cameras and web cams permit individuals to create high quality,

homemade images.”).

For the same reasons, section 13031(d)’s statement that, in certain

circumstances, social services or health care agencies must refer reports of

suspected child abuse “to a law enforcement agency with authority to take

emergency action to protect the child” (emphasis added) should not be

read to restrict the reporting obligation to situations in which covered

professionals know the identity of the children who are the victims of

suspected abuse. This law-enforcement referral requirement applies not to

covered professionals, but to the “social services or health care agencies”

that receive reports of suspected child abuse. 42 U.S.C. § 13031(d). The

statute expressly contemplates that the agency receiving the report, not the

covered professional, must ascertain which law enforcement agency is

“authori[zed] to take emergency action to protect the child.” Id. And

although the referral requirement could be read to reflect an assumption

that these agencies generally will know the identity of the child in need of

protection, the requirement also could be satisfied by identifying a law

enforcement agency with authority to initiate an investigation to ascertain

the identity and location of the suspected victim.

We therefore conclude that the fact that a patient has viewed child por-

nography may constitute a “fact[] that give[s] reason to suspect that a

child has suffered an incident of child abuse” under section 13031, and

that a covered professional is not relieved of the obligation to report such

a fact simply because the identity of the injured child is unknown.

C.

As noted, the VCAA provides for criminal penalties. 18 U.S.C.

§ 2258. When interpreting a statute’s civil provision, the violation of

which is also subject to criminal sanction, the rule of lenity may be

invoked to resolve ambiguity in the provision. See Leocal v. Ashcroft,

543 U.S. 1, 11–12 & n.8 (2004); United States v. Thompson/Center

Arms Co., 504 U.S. 505, 517–18 & n.10 (1992) (plurality opinion).

Here, however, we resolved both of the interpretive questions you

presented without employing the rule of lenity, because we concluded

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that the provisions at issue did not present any “grievous ambiguity or

uncertainty” that could not be addressed by applying ordinary tools of

statutory construction. Muscarello v. United States, 524 U.S. 125, 139

(1998) (internal quotation marks omitted).

We recognize, however, that the statutory trigger for the reporting re-

quirement—the learning of “facts that give reason to suspect that a child

has suffered an incident of child abuse”—is extremely broad. For exam-

ple, the statute’s text does not appear to require either that the suspected

abuse have occurred recently or that there be a direct connection between

the facts and a particular perpetrator of or witness to abuse. Thus, a doc-

tor’s duty to report conceivably could be triggered by a patient’s revela-

tion that his neighbor confided that he was abused as a child some dec-

ades ago, a patient’s revelation that acquaintances long ago had viewed

child pornography, or a patient’s expression of amazement that he had

learned from the Internet that child abuse or child pornography was far

more prevalent than he had previously believed. 9 Because failures to

report may be criminally prosecuted, courts may be concerned about the

uncertain breadth of the suspected abuse that may be subject to section

13031’s reporting requirement, particularly when combined with the

ambiguities discussed in Parts II.A and II.B.

You have not asked us to define the boundaries of the phrase “facts

that give reason” to suspect child abuse or to discuss the application of

18 U.S.C. § 2258, but we note that covered professionals who fail to

make a report required by the statute may not always be criminally liable

for their failure to do so. Significantly, although the VCAA’s criminal

penalty provision lacks an express mens rea requirement, courts general-

ly “interpret[] criminal statutes to include broadly applicable scienter

requirements, even where the statute by its terms does not contain them.”

X-Citement Video, 513 U.S. at 70. 10 Courts deciding whether to impose

9 We do not consider here whether other aspects of the language quoted in the text

above, or of language elsewhere in the statute, might limit its application in some such

situations. A court might also adopt a narrowing construction of the statutory trigger for

the reporting requirement to avoid notice concerns. See Skilling v. United States, 130

S. Ct. 2896, 2931 (2010).

10 As the Supreme Court has explained, the presumption that a statute contains a mens

rea requirement even when that requirement is not explicit in the statutory text is con-

sistent with the rule of lenity. See Liparota v. United States, 471 U.S. 419, 427–28 (1985).

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36 Op. O.L.C. 167 (2012)

criminal penalties on a covered professional for failing to file a report

would have to decide (i ) whether to construe 18 U.S.C. § 2258 to impose

a mens rea requirement, and (ii) if they do so, what the required mens rea

is. And while for some statutes, courts have required only that a defendant

have knowledge of the “facts that make his conduct illegal,” Staples v.

United States, 511 U.S. 600, 605 (1994), for others, courts have required

that a defendant know that his or her conduct was “unauthorized or ille-

gal” before criminal liability could be imposed, particularly where failure

to impose such a requirement would “criminalize a broad range of appar-

ently innocent conduct,” Liparota v. United States, 471 U.S. 419, 426,

434 (1985). Here, a court concerned about ordinary citizens’ ability to

decipher the contours of the abuse that must be reported, or about the

statute’s punishment of a failure to act rather than an affirmative act,

might be inclined to adopt this kind of heightened mens rea requirement.

See Skilling v. United States, 130 S. Ct. 2896, 2927–28 (2010) (noting that

a “‘criminal offense’” must be defined “‘with sufficient definiteness that

ordinary people can understand what conduct is prohibited’” (quoting

Kolender v. Lawson, 461 U.S. 352, 357 (1983))); id. at 2933 (noting that a

“mens rea requirement” can help “blunt[] . . . notice concern[s]”); Lam-

bert v. California, 355 U.S. 225, 228 (1957) (holding that due process

requires that a person who is “wholly passive and unaware of any wrong-

doing” have notice of a registration requirement before she may be held

criminally liable).

III.

In sum, any person who, while engaged in a professional capacity or

activity described in subsection (b) of section 13031 on any federal land

or in any federally operated (or contracted) facility, learns of “facts that

give reason to suspect that a child has suffered any incident of child

abuse” must report the suspected abuse to a designated agency. The fact

that a patient has viewed child pornography may “give reason to suspect

that a child has suffered an incident of child abuse” under the statute, and

Inferring a mens rea requirement is, however, a distinct practice from applying the rule of

lenity, and the Court has suggested that lenity principles may not apply in determining the

degree of mens rea that is required. See Staples v. United States, 511 U.S. 600, 619 n.17

(1994).

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a covered professional is not relieved of an obligation to report the possi-

ble abuse simply because neither the covered professional nor the patient

knows the identity of the child depicted in the pornography. As described,

however, a covered professional’s failure to file a required report will not

necessarily result in criminal liability.

VIRGINIA A. SEITZ

Assistant Attorney General

Office of Legal Counsel

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