Neal Davis Interviewed In Houston Chronicle About Failure-To-Report Law

Few charged with failure to report abuse
By Ericka Mellon
December 9, 2013

A state law meant to ensure adults don’t keep quiet about suspected child abuse rarely lands Harris County residents or other Texans in court, and prosecutors say securing convictions is difficult.

A total of 27 people over the last five years were criminally charged with failing to report child abuse in Harris County, according to data from the district clerk’s office. Of the closed cases, slightly more than half the defendants got jail time or probation. Prosecutors dismissed the others.

The recent charges against three Sharpstown High School administrators have brought renewed scrutiny of the decades-old reporting law that the Legislature toughened with little fanfare last spring. In one bill that took effect in September, lawmakers upped the offense to a felony for people who intentionally try to conceal child abuse or neglect.

“The objective is to go after those individuals that have knowledge of severe, ongoing abuse, and they’re not reporting it,” said state Rep. Tan Parker, the Flower Mound Republican who co-authored the bill.

“I certainly think it should be taken very seriously, and it should be utilized as a tool for prosecutors in the state,” he said. “I defer to them in the way they want to implement it and pursue it.”

Across Texas, an average of 23 people a year were arrested on charges of failing to report child abuse from 2008 through 2012, according to data from the Texas Department of Public Safety. Of the 117 charged, fewer than a quarter were convicted, the data show.

The standard charge is a misdemeanor punishable by up to a year in county jail and a $4,000 fine. The felony could result in up to two years in state jail.

Lawmakers also revised the state’s education code this year to reiterate that school officials have to report suspected child abuse or neglect to the police or to Child Protective Services. Mandatory reporting to authorities within 48 hours has been required for years, but child advocates voiced concerns that districts were directing educators just to tell their supervisors.

Attorney General Janet Reno urged President Clinton to oppose the passage of the Hyde Amendment; Deputy Attorney General Eric Holder warned that, if the Hyde Amendment became law, people such as the “three Johns” — Gotti, Hinckley, and DeLorean — “could wind up with big taxpayer checks.”20 Former Attorney General Griffin Bell wrote a newspaper editorial invoking the image of Manuel Noriega receiving a government check for the attorney fees and costs that led to his partial acquittal.

Superiors told
The reporting chain-of-command is a key issue in the Sharpstown cases. The principal, Rob Gasparello, is accused of not telling police or CPS that at least two male students alleged a Spanish teacher, Ysidoro Rosales-Motola, touched their genital area.

Gasparello’s attorney, Rusty Hardin, said the principal quickly made sure the teacher wasn’t alone with students, contacted their parents and told his superiors “with the belief they would notify law enforcement.”

Hardin said Gasparello followed the spirit, if not the letter, of the law, and said prosecutors should use discretion.

“This is just another form of zero tolerance,” Hardin said.

The assistant principals who were charged, Jason Thomson and Silvio Leiva, helped translate a Spanish-speaking student’s accusations against the teacher to Gasparello, according to court records. The criminal complaints against them said they, too, should have passed on the information to authorities.

HISD policy
The Texas Association for the Protection of Children successfully lobbied lawmakers this year to clarify the reporting requirements for school officials. The group had surveyed schools and found an emphasis on internal reporting.

“Many of the schools were skirting the law,” said Madeline McClure, the executive director of the association, also called TexProtects.

HISD’s 15-page policy on child abuse says employees should report allegations to their principal or immediate supervisor, to the school nurse or counselor, as well as to law enforcement or Child Protective Services.

Part of the policy, however, is outdated. It says an administrator should contact the “regional superintendent” if the abuse involves a school employee. That job title changed in 2010.

One of the laws that took effect in September said all school districts must adopt rules developed by the Texas Education Agency that outline the external reporting mandate for suspected abuse. Agency officials are working on the rules, said spokeswoman Debbie Ratcliffe.

Mostly a family matter
While a few high-profile cases involving educators make headlines, most of the criminal charges for failure to report child abuse concern family matters, according to Harris County court records.

The 27 Harris County charges for failing to report child abuse from 2009 to 2013 include those lodged against the three Sharpstown administrators. Most of the charges targeted mothers for not telling authorities their children reported being sexually abused by relatives or others.

Only one other educator, the superintendent of a Houston charter school, Jamie’s House, was listed among those charged in the last five years. Prosecutors later dismissed the case against her.

The incident involved a teacher, captured on a cellphone video, kicking and hitting a student.

Attorney Neal Davis, who represented the superintendent, Ollie Hilliard, said his client didn’t see the video until it went viral. He said prosecutors dismissed the case after a jury acquitted the school principal on the same charge.

Records for the principal and another staffer appear to have been expunged, essentially erasing the original charges.

Jane Waters, chief of the special victims bureau of the Harris County District Attorney’s Office, said prosecuting failure-to-report cases can be challenging, but prosecutors take the charge seriously.

“It’s hard to prove a negative sometimes,” she said. “You have to prove somebody didn’t do something.”

Five of the 27 Harris County defendants received jail time, five admitted responsibility and were placed on a form of probation known as deferred adjudication, eight cases were dismissed and nine remain open.

Law among strictest
Typically, school officials are the most common people to contact Child Protective Services with concerns. School personnel made about 43,100 reports to the agency last year, according to state data.

Texas law is among the nation’s strictest, requiring everyone to tell the proper authorities about suspected child abuse. Even those usually allowed confidential communication such as attorneys and clergy are not exempt.

All states have mandatory reporting laws, but some apply only to certain professionals.

Rep. Parker said he was inspired to toughen the state law with the potential felony charge after the 2011 scandal involving an alleged cover-up of sexual abuse at Pennsylvania State University.

“It’s not something that we’d expect to see police making a lot of charges on,” he said. “States have these laws on the books to encourage good behavior.”

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