Abuse Investigation Delayed and Polluted by Internal Reporting

Due to increased awareness about abuse, we now have Jewish community serving organizations that work hard to prevent abuse and “interven[e] effectively and with cultural sensitivity when abuse occurs.” Unfortunately, these community organizations can unintentionally make the problem worse in many ways when they don’t clearly teach that mandated reporters must call the police themselves. “Mandated reporter” means “mandated reporter to the police”, not “mandated reporter to the organization’s director”This lack of clarity leads to some schools, synagogues, and summer camps directing employees to internally report abuse, delaying the reporting process. During this delay, the administration often conducts their own in-house investigation and reports to the police after they are done. 

My intention in writing this post is not to cast aspersions on these important organizations themselves, but express a sincere desire that they update their programs and engage experts from outside our community who can advise them on best practices. These organizations can serve a critical education function if they are properly educating people on the law. In short, if you become aware of child abuse, you must report it yourself to the appropriate state agency (police for emergencies or State Central Registry/Child Protective Services depending on your state). For the purposes of this post, I will say “police” in general for simplicity, but follow your own state laws for the appropriate government reporting agency.

Rabbinic leaders justify delay as necessary to prevent false allegations, and then erroneously believe they have fulfilled their legal obligation in reporting. Delay may unintentionally serve to pollute the police investigation and reduce the success of prosecution. The result is abusers twisting the corrupted reporting process into evidence of their innocence.

Once again, I am not a lawyer and am not providing legal advice, but am sharing what I have learned from publicly sourced documents and encourage you to do your own research. If you believe, like I do, that abuse should be reported to the police and not internally first, then ask your kid’s school for a copy of their child safety policy and compare it to your state’s laws.

Why don’t mandated reporters call the police themselves?

Much of the historical concern comes from the issue of mesirah, a prohibition on reporting to secular authorities. The Agudath Israel teaches that one must have raglayim la’davar or reason to believe, to call the police. In determining if one has reason to believe, the Agudah holds that the individual should not rely exclusively on his own judgement” but “rather he should present the facts of the case to a rabbi.” Rabbi Shmuel Kamentzky similarly instructs that abuse should be reported first to a rabbi who can determine if the allegations meet the requirements of raglayim la’davarThey make clear, “where the circumstances of the case do not rise to threshold level … the matter should not be reported to authorities.”

The Rabbinical Council of America (RCA) has a differently nuanced position, declaring that while abuse must be reported if certain, “where the facts are uncertain, one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities.” The Agudah and RCA position are different in style, but both often result in delayed reporting based on individual interpretation of their positions.

USA Gymnastics (USAG) also conducted its own investigations prior to reporting, as documented in the Ropes and Gray independent report published on December 10, 2018. This report is a worthwhile read cover to cover, but I recommend pages 1-10, 44-62, 174-199 as background for this post.

Today, many know USAG as the disgraced organization that allowed Larry Nassar to prey on young female gymnasts for decades. What many do not know is that the USAG had developed some of the most rigorous anti-abuse policies in the industry. They created some of the first sexual abuse prevention policies in the Olympics and even maintained the first ineligible list for Olympic sports. USAG was seen as a leader in abuse prevention.

All these steps made athletes and authorities ironically more trusting of an organization whose policies served to make the problem worse.

USAG shares more similarities to the Orthodox Jewish world, including an intense culture that “demanded obedience and deference to authority.” Long practices meant that children “were largely separated from their parents.” USAG spoke strongly on abuse education and prevention, but failed when it came to reporting abuse and acting on allegations. It should come as no surprise that Larry Nasser himself contributed to policies which placed concern over false accusation above the safety of the athletes.

USAG had a complex list of requirements they followed prior to deciding to open an investigation (their version of raglayim la’davar). The escalation process required an athlete to first raise the issue with their abuser directly, and then file a written, signed report if that was not effective. USAG would ignore reports that were unsigned or anonymous. Reports were also not accepted by witnesses. If a coach saw an employee abuse an athlete, USAG would consider it conjecture (their version of eizeh dimyon) and refuse the report.

Larry Nassar had been investigated and exonerated by the police both in 2004 and 2014, and these two exonerations were used to allow him continued access to victims during his later police investigation in 2015. When the latest allegations of abuse were relayed to USAG in 2015, the USAG spent five-weeks conducting an internal investigation prior to being instructed by an outside investigator to tell the police.

Most critically, the USAG notified Larry Nassar of the exact nature of the allegations prior to police reporting, and coached witnesses to manage the message and attempt to control the investigation.

State mandatory reporting laws require the witness to report suspect child abuse to the police immediately. While exact laws vary by state, most of the state laws share many similarities. A mandatory reporter (a teacher or in some states, everyone) must make an immediate police report. States give 24-48 hours for a written follow-up, but the oral report must be immediate and not to an institution’s director, but to the police or “State Central Registry” to investigate. If the school principal finds out before the authorities, it gives an opportunity for internal investigation and delayed reporting. As Rabbi Tzvi Hirsch Weinreb stated, “If there’s a fire, you call the fire department, you don’t go to the rabbinical court….We’re obligated to go to the authorities.” Failure to report can result in imprisonment in many states, though it is rarely prosecuted.

When child sexual abuse is reported, a social worker with the local state appointed child protection agency conducts a forensic interview of the victim, sometimes over several weeks. These interviews are generally recorded so they can be used in future prosecution. Police and prosecutors will view these recordings and decide if they are able to pursue criminal charges. The government social worker may make findings on behalf of Child Protective Service (CPS) at an administrative or civil level of responsibility (preponderance of the evidence), but the police must determine if they can prove a higher burden of proof at a criminal level (beyond a reasonable doubt).

CPS findings could impact a parent’s custody of their child or a teacher’s ability to work in a school, but do not lead to imprisonment. This would be akin to how O.J. Simpson was found “not guilty” for the murder of his wife, as the prosecution could not prove his guilt beyond a reasonable doubt (criminal). However, he was found liable for her death at the level of preponderance of the evidence (civil), the same standard that is used by CPS to determine responsibility in abuse cases.

To get to the certainty needed for criminal conviction (which may include imprisonment), the police may choose to interview the suspect, requiring him to make a sworn statement attesting to certain facts that may be falsified through future interviews with uncoached witnesses. If the suspect works with children, he may be asked about where and how he does his work. They will attempt to get him to commit to a story in a sworn statement that may implicate his own guilt as the investigation proceeds.

Successful prosecution requires a clean investigation.

USAG officials, like rabbis and organizational leaders, are untrained in forensic protocol. Both may purposefully or unwittingly coach or confuse victims with alternate stories to protect their institution. Lack of rigorous standards may cause them to misreport what was disclosed initially to police investigators, creating confusion when institutional investigators have memories of the disclosure that conflict with what is actually disclosed by the victim.

Worse, the investigation prior to reporting ends up alerting the suspect to the allegations. This allows him to habituate to the specific allegations and appear relaxed during his interview. “With repeated presentation to emotionally charged material, autonomic responses habituate over time,” giving the illusion of a cooperative and truthful suspect. To an improperly trained police detective, a calm and socially skilled suspect will appear more credible than a victim of sexual assault who may be embarrassed, afraid, withdrawn, confused, or depressed. If the suspect is aware of which facts were disclosed by his victim, he can easily control and direct the investigation. Socially skilled child molesters can turn a police interview into a friendly chat, where the detective commiserates with the suspect and even becomes their most valued ally (see page 109 of linked book).

Potential witnesses who support the organization where the abuse occurred can be coached with concurring alibis for the suspect, and those who wish to cooperate with police can be intimidated to stay quiet.

When the police showed up to interview Larry Nassar about his unique “pelvic floor” therapy, he was prepared with a PowerPoint presentation to explain that what he did was not sexual abuse, but medical treatment. Since he often sexually abused in semi-public places and sometimes even near witnesses, investigators were fooledNasser was habituated to his own lies, and his charming nature led investigators to praise his openness and candor about his innovative techniques. When the police sought to verify his story in 2014, they did not consult independent experts, but rather consulted his colleagues at Michigan State University who vouched for their friend. When he was exonerated, his victims were denigrated as overly sensitive and uneducated on medical procedure. Only when the police interviewed colleagues who were not prepared with an alibi did they start to unravel the truth.

Unfortunately, many of our community safety policies might lead us down the same road as USAG with delayed reporting. One rabbi advised his congregants that when there is an indication of abuse, “Call [our community serving organization], and together with their guidance and support, they will help you navigate if and when to involve the police, CPS, or whatever may be most appropriate.” He should have directed his congregants to go straight to the police, not to alert a community serving organization and allow them to make the decision.

At a recent child safety event sponsored by a community serving organization, they had a presentation by an instructor in pastoral counseling with a focus on child psychology. This speaker had previously spoken about child abuse in Lakewood, where he said he followed the directions of the rabbinate in Lakewood to not encourage direct police reporting by parents.

This speaker excused his behavior in Lakewood by saying he personally thinks abuse should be reported directly to the police by parents, but that, “Lakewood is an interesting neighborhood.” The same speaker participated in an almost two-hour presentation in another town where the process of reporting and mandated reporting laws were not discussed. The speakers shared unsourced stories, where abusers seem to get instantly arrested, and the only direct contact with police is through leadership. Having personally taken similar classes outside the Jewish world, it is concerning to me that mandated reporting guidelines were not discussed.

A safety policy put in place by this child safety organization at a yeshiva in Pennsylvania makes this intention clear as it states on abuse, “Our school will conduct a thorough investigation…..and report such violations when legally mandated to appropriate authorities…..Any concerns, suspicions or allegations of abuse…should be promptly with or reported to [the school principal]” with only a reference to follow state guidelines, and no clear directive for mandated reporters to call the police themselves without first telling the school administration.

The State of Pennsylvania makes it clear in response to the question, “Can’t I just tell my boss about the abuse and he can take it from there?” that “No, changes to CPSL now require that a mandated reporter must personally make the report.” Once again, precise laws vary by state so find out your state laws and see if your synagogue and kid’s school is properly instructing mandated reporters in the law.

Our Jewish Day Schools have even documented their policies of internal reporting in their published parent handbooks. Yeshiva University High School (YUHS) implemented a new policy after disclosures of abuse, but the policy is so unclear that it has been described by Marci Hamilton of CHILD USA as “convoluted” and “guaranteed to have employees throwing up their hands in confusion”, and “likely to result in reports that get lost in the cracks of the bureaucracy.”

YUHS policy may be confusing, but other day schools are sadly not confusing when they specifically tell mandated reporters to internally report abuse and fail to instruct them to inform authorities themselves. These are quotes directly from Yeshiva safety policies that don’t instruct those who become aware of child abuse to dial 911 immediately, but rather send concerns through a school administrator:

An effective policy would tell mandated reporters that they themselves must tell authorities, and that informing the institution is optional. Telling the school principal or director does not satisfy mandatory reporting in many states.

A better child safety policy should read as follows, “Reports may be made directly by an individual to the Statewide Central Register (SCR) of Child Abuse and Maltreatment. Individuals are encouraged, but not obligated to notify the Child Protection Committee after making such a report.”

Prosecution of abusers is a good start, but the cover-up won’t end until we demand better child safety policies and the police continue filing obstruction of justice charges against those that don’t follow mandatory reporting guidelines. The head of a major educational institution has been charged with lying to the police about her knowledge of prior abuse investigations. A Catholic bishop was convicted for failure to report abuse.

Even the law is sadly behind on this issue in some states. Failure to report abuse can result in one year imprisonment in New York, two years in Pennsylvania, and five years in Maryland and Florida. New Jersey has mandatory reporting laws, but specifies no jail time at all, just referring to the person who fails to make a report as a “disorderly person”! Certainly New Jersey could learn something from Maryland, Pennsylvania, New York, and Florida.

Community serving organizations and rabbis do have a role to play in the reporting of child abuse, but it is not to act as prescreeners for law enforcement. They should not be a “clearinghouse of abuse complaints” and should not “appoint investigators to look into allegations.”

Community serving organizations can provide spiritual counsel for victims as they go through the difficult process of the police investigation, and they can provide guidance to a community after a failure to prosecute. This last point is important and will be discussed in a future blog post. Many of the USAG’s failures were related to allowing coaches to continue to abuse even after credible reports were received.

As the Ropes and Gray report documents (page 190), coaches were repeatedly allowed to continue as long as they evaded prosecution.

The USAG suffered from the same problem as many of our community safety organizations. It conducted internal investigation prior to reporting, thus reducing the chance of prosecution, and then used lack of prosecution to justify taking no further action to protect its children.

To protect our children and ensure safer communities, we must view delayed and internal reporting today as comparable to the failure to report of yesterday.

About the Author
Joel Avrunin is a leader in building technical sales teams, with a passion for technology, teambuilding, coaching, and helping people develop their careers. Experiencing the heartache of being a father to a victim of clergy child sex abuse has motivated him to be a vocal proponent of robust child safety and anti-grooming policies in our schools, houses of worship, and summer camps. He lives in Atlanta, Georgia with his wife and children, where he enjoys long runs down the Atlanta Beltline and hikes in the North Georgia mountains with his family.
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