By ERIC A. HOWALD
Of the Keizertimes
A decision by the Oregon Court of Appeals regarding the dismissal of an employee for failure to report a potential case of sexual abuse (see related story, Page A2), threw a wrench into the way the Salem-Keizer School District had been interpreting its mandatory reporting guidelines.
While the court sided with the counselor who chose not to report a somewhat vaguely-described incident of abuse, it additionally determined that for mandatory reporting to be required “reasonable suspicion of sexual abuse necessarily encompasses a judgement as to whether the asserted physical contact was sexually motivated.” Essentially, the court said that for an incident to fall under the sexual abuse category, and therefore trigger mandatory reporting to the Department of Human Services, the incident had to include the touching of private or intimate parts for the purpose of arousing either party.
That determination, and two executive sessions on the topic, led to a special meeting of the Salem-Keizer School Board on Aug. 15 to consider asking the Oregon Supreme Court for clarification on mandatory reporting laws. Board members approved moving forward with the request in a 4-2 vote with one abstention.
While the board is no longer seeking to punish the counselor whose actions led to the court decision, the action has led to new guidelines for mandatory reporting in the Salem-Keizer School District that includes a student inquiring about birth control options after admitting to sex with a partner; reports of a pregnancy; a student confiding in a teacher after being kicked out of his home for divulging a sexually active, same-sex relationship; in addition to suspected abuse or neglect.
Board Member Sheronne Blasi said she believed the Fair Dismissals Appeals Board (DFAB) made the wrong decision to reinstate the counselor involved in the inciting incident, but “I think that it’s in the interest of children and protecting children and it’s incredibly important that we bring this forward.”
Board Member Jesse Lippold contended that such an action would reinforce the need to report and it would take pressure off teachers because they wouldn’t have to make extra judgement calls or perform investigations.
Board Chair Paul Kyllo disagreed.
“I think it puts more responsibility to report any suspicion they hear,” Kyllo said. “Any time there’s somebody having sex under the age of 18 they must report it. Therefore, any time they don’t report it, under the new standard we are setting, it means the mandatory reporter could be sent to the police and put before the DFAB board. We create that new problem.”
Kyllo added the reporting guidelines might also be weaponized by students who are mad at one another.
“I believe that then clogs up the system and creates more problems than it helps solve in any way, shape or form,” Kyllo said.
Board member Kathy Goss worried that a court might respond with requirements the district didn’t want.
“The court has to rule on the facts but, in so doing, they could articulate a standard that is better for (mandatory) reporters, the same or worse. That’s all within the conceivable,” said the school district’s attorney Paul Dakopolos.
Lippold responded, “I don’t want a teenager who is worried about whether or not she is pregnant to be taken to court to be prosecuted along with any other because we decided to
take this to court.”
Dakolopos said his concern was the introduction of reporters needing to determine whether sexual gratification was part of a reported incident.
“We have never trained, nor has any school district ever trained, mandatory reporters to ask that question because sexual gratification is what law enforcement would have to prove in a sex abuse case,” Dakopolos said. “There were specific words spoken and gestures made in this case. Are the facts as described enough to trigger mandatory reporting? Should the reporter inquire regarding sexual gratification? It’s a complicated question that the court of appeals has added: the idea that a reporter could dismiss a report because the touching was not for sexual gratification. That’s a change for all mandatory reporters. ”
Jim Green, Sheronne Blasi, Jesse Lippold and Chuck Lee supported asking the Supreme Court for additional clarification. Kyllo and Kathy Goss opposed. Marty Heyen abstained.
Keizertimes asked Kyllo how district officials got from the vote for judicial clarification to the issuance of new mandatory reporting guidelines.
Kyllo responded: “The reporting guidelines are not new. If you looked at the mandatory reporting videos required to be watched in other school districts you would find that it is mentioned in those videos. Salem-Keizer has just taken a position to follow the law. No one is being hounded to report the abuse, no one is being monitored, and no one is excused from not reporting if there is a complaint or later allegation of abuse made by someone on behalf of an underage student, Is your newspaper advocating that the school district employees be exempt from following the law?”
No other school district in Oregon has yet moved to include consensual sex between students in the list of reportable incidents.