November 20, 1980
Mr. James Ellenbecker
Secretary
Department of Social Services
Kneip Building
Pierre, South Dakota 57501
Official Opinion No. 80-68
SDCL 26-10-10: Reporting Requirements for Sexual Abuse and Exploitation of Children
Dear Mr. Ellenbecker:
You have requested an official opinion from this office to determine if the State of South Dakota has provisions for reporting sexual abuse and sexual exploitation of children under the age of 18. Your request is pursuant to the requirements of P.L. 93-247 which is an Act '(t)o provide financial assistance for a demonstration program for the prevention and treatment of child abuse and neglect, and for other purposes.'
You have asked the following two questions:
QUESTIONS:
1. Are sexual abuse and sexual exploitation included in the reporting requirements of SDCL 26-10-10?
2. If the answer to the first question is yes, are children sixteen years of age or older included within the reporting requirements of SDCL 26-10-10?
IN RE QUESTION NO. 1:
A review of the legislative history of SDCL 26-10-10 reveals that the 1964 Legislature codified mandatory reporting requirements for physical injuries and abuse sustained by children. Various professionals must report physical injuries, or neglect of children pursuant to SDCL 26-10-10 which requires:
Any physician, surgeon, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, psychologist, social worker, hospital intern or resident, law enforcement officer, teacher, school counselor, school official, nurse, or coroner, having reasonable cause to suspect that any child under the age of eighteen years, examined by such person either for care or treatment or noticed in their usual and ordinary contact with the child has been starved, neglected as defined in § 26-8-6, or has had physical injury or injuries inflicted upon him by abuse or intentional neglect other than by accidental means, by any person, including parent or other person responsible for his care, shall report or cause reports to be made in accordance with the provisions of § § 26-10-11 and 26-10-12. Any person hereinbefore described who knowingly and intentionally fails to make a report required of him is guilty of a Class 1 misdemeanor. Any person who knows, suspects, or has reason to believe that a child has received physical or emotional injury or injuries as the result of abuse or intentional neglect may make a report as provided by law.
Included within the reporting requirements of SDCL 26-10-10 is 'neglect' as defined by SDCL 26-8-6. That section defines 'neglected or dependent child' as one:
(1) Whose parent, guardian, or custodian has abandoned him or has subjected him to mistreatment or abuse;
(2) Who lacks proper parental care through the actions or omissions of the parent, guardian, or custodian;
(3) Whose environment is injurious to his welfare;
(4) Whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or wellbeing; or
(5) Who is homeless, without proper care, or not domiciled with his parent, guardian, or custodian through no fault of his parent, guardian or custodian.
These elements are to be liberally construed in favor of the State for the purposes of protection of children from abuse and exploitation. SDCL 26-8- 2. The State's neglect statute has withstood constitutional scrutiny since it defines conduct which when measured by common understanding is sufficiently definite to protect due process rights. Matter of D.T., 237 N.W.2d 166 (1975).
Sexual abuse and sexual exploitation are defined by P.L. 93-247 (amended by P.L. 95-266) as:
The obscene or pornographic photographing, filming, or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution, or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened thereby, as determined in accordance with the regulations prescribed by the Secretary.
Sexual abuse and sexual exploitation as defined above are criminal conduct which is included in the criminal statutes of South Dakota. These criminal sanctions indicate that the State considers this kind of conduct to be harmful to all citizens of South Dakota including children.
The State has defined the term 'harmful to minors' as:
the quality of any material or of any performance or of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
(a) predominantly appeals to the prurient, shameful or morbid interest of minors, and
(b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and
(c) is without serious literary, artistic, political, or scientific value. SDCL 22-24-27.
It is therefore my opinion that sexual abuse and sexual exploitation of children would be conduct included in the elements of neglect in SDCL 26-8- 6. Since SDCL 26-10-10 requires that neglect as defined in 26-8-6 must be reported, it is my opinion that sexual abuse and sexual exploitation of children would fall within the reporting requirements of SDCL 26-10-10.
IN RE QUESTION NO. 2:
SDCL 26-8-1 defines 'child' as:
. . . a person less than eighteen years of age, and any person under twenty-one years of age under the continuing jurisdiction of the court, or who is before the court for an alleged delinquent act committed prior to his eighteenth birthday.
It is therefore my opinion that persons 16 years of age or older would be children included in the reporting requirements set forth in SDCL 26-10-10.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
