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Top court: All must report child abuse

Copyright © 2015 Albuquerque Journal

Plain words may not work when it comes to interpreting laws enacted by the Legislature.

That’s the cautionary advice from the New Mexico Supreme Court in a case about whether a private social worker who learned about alleged child abuse during a counseling session can be required to disclose it in court during a criminal prosecution.

The short answer: Yes, he can be forced to testify.

A 37-page treatise by Justice Charles Daniels for a unanimous court issued Monday overturns decisions by an Albuquerque judge and a divided Court of Appeals on the question.

“We conclude that both privately and publicly employed social workers are mandatory child abuse reporters,” the court said in its opinion. “Consequently, statements made to a social worker by an alleged child abuser in private counseling sessions are not protected from disclosure in a court proceeding …,” it says in part.

According to the background in the case, a man allegedly revealed to his wife that he had been sexually abusing the couple’s minor daughter. The father moved out of the home, began counseling with a licensed social worker, and moved back in after a few months and continued seeing the social worker. When the couple’s daughter reported that the abuse had never stopped, the wife and the girl moved out, and the wife reported the abuse to authorities.

The father was charged with four counts of criminal sexual contact of a minor, a second-degree felony with enhanced penalties for abusing a child under age 13.

Prosecutors notified the defense of plans to call the social worker to testify and the defense sought a protective order, arguing that the discussions between the father and his counselor were protected.

District Judge Jacqueline Flores agreed and so did a majority of the Court of Appeals because the social worker had not been acting in an official capacity – that is, working as a government employee – and because the appellate court found that the Social Work Practice Act created a privilege with exceptions for testimony about child abuse.

A dissent concluded that language requiring “every person” to report child abuse is evidence of legislative intent to create a duty on everyone to report child abuse.

That is the phrase echoed in a statement from the Governor’s Office.

“For more than four decades, New Mexico law has been crystal clear that child abuse and/or neglect must be reported by anyone who knows or suspects it to be taking place. This ruling affirms that ‘every person’ means every person. Regardless of profession, the requirement of everyone to report child abuse and/or neglect is a long-standing precedent,” Gov. Susana Martinez said in a written statement.

The Supreme Court wrote that, in interpreting statutes, the first rule is to look at the actual wording. But when in doubt, the court said, “the plain language approach may not lead to a correct interpretation of true legislative intent.”

“We have repeatedly cautioned that, despite the ‘beguiling simplicity’ of parsing the words on the face of a statute, we must take care to avoid adoption of a construction that would render the statute’s application absurd or unreasonable or lead to injustice or contradiction,” the opinion says.

The case, which was indicted in 2011, was ordered back to the district court for further proceedings. Once the protective order was granted in March 2012, the case proceeded no further until the social worker issue could be decided.

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