Child Abuse: New York Mandated Reporter Training

Abuse involves serious injury such as burns, fractures, head trauma, and internal injuries. Be prepared to give examples of what would constitute substantial risk of death or substantial risk of physical harm.

The following are elements of abuse are defined in the Family Court Act 1012 (Research foundation, 2011, Trainer’s Presentation Guide, pg. 16-17):

Subject inflicts or allows to be inflicted on a child serious physical injury by other than accidental means.

AND

Such action causes or creates a substantial risk of death or serious or protracted disfigurement, impairment of physical or emotional health or impairment of the function of any bodily organ

OR

• Subject creates or allows to be created a substantial risk of physical injury to the child by other than accidental means

AND

• Such action causes or creates a substantial risk of death or serious or protracted disfigurement, impairment of physical or emotional health, or impairment of the function of any bodily organ

OR

• Subject commits or allows to be committed a sex offense as described in section 130 of the penal law
  • Sexual misconduct
  • Rape
  • Criminal sexual act
  • Forcible touching
  • Persistent sexual abuse
  • Sexual abuse
  • Aggravated sexual abuse
  • Course of sexual conduct against the child
  • Female genital mutilation
  • Facilitating a sex offense with a controlled substance

OR

• Subject commits or encourages the child to engage in any act defined in section 230.25, 230.30, or 230.32 of the penal law (promoting prostitution)

OR

• Subject commits any acts described in section 255.25 of the penal law (incest)

OR

• Subject allows child to engage in acts described in article 263 of the penal law:
  • Use of a child in a sexual performance
  • Promoting an obscene sexual performance by a child
  • Possessing an obscene sexual performance by a child
  • Promoting a sexual performance by a child
  • Possessing a sexual performance by child

In NYS, while reasonable physical correction of a child is allowed, excessive corporal punishment is not. “Excessive” is a case-by-case determination based on the form of the punishment, its ability to cause serious injury, the purpose of the punishment, and what the child did to warrant such punishment. More specifically, the following questions should help focus mandated reporters’ thought processes or a class discussion. A “yes” response to any of these questions may make a physical punishment excessive:

• Does the child (based on age, maturity, physical/mental condition) lack the capacity to understand the corrective quality of the discipline?
• Is a less severe method of punishment available and likely to be effective?
• Is the punishment unnecessarily degrading to the child?
• Was the punishment inflicted for the gratification of the parent’s rage?
• Was the punishment brutal?
• Did the punishment last for such a time that it surpassed a child’s power of endurance?

An example may clarify this point:

• A parent slaps their twelve-year-old son for being disrespectful. The child did not sustain any bruises. This type of discipline would not be considered “excessive.” A parent slaps their twelve-year-old son for being disrespectful. As a result of this level of physical discipline, the child sustained a bruise and slight laceration on the right side of his cheek. This type of discipline would be a registered report.

REMINDER: The terms “maltreatment” and “neglect” are often used interchangeably. Both terms have legal foundation in the CPS system. “Maltreatment” is the term used in the Social Service Law and “neglect” is used in the Family Court Act.

The following is the definition of maltreatment is defined as (Research foundation, 2011, Trainer’s Presentation Guide, pg. 18):

• A child whose physical, mental, or emotional condition has been impaired or is at imminent danger of becoming impaired

AND

• the subject failed to exercise a minimum degree of care
  • in supplying adequate food, clothing, or shelter, or
  • in supplying adequate education, or
  • in supplying medical or dental care though financially able to do so or offered financial or other reasonable means to do so, or
  • in providing proper supervision or guardianship, or
  • by inflicting excessive corporal punishment, or
  • by misuse of drugs or alcohol

AND

• There is a causal connection between the child’s conditions in the subject’s failure to exercise the minimum degree of care

OR

• The parent has abandoned the child by demonstrating intent to forgo his or her parental rights and obligations by failing to visit the child to communicate with the child though able to do so.

A copy of The Family Court Act is available here.

The Abandoned Infant Protection Act (AIPA, refer to the AIPA tab) does NOT affect your responsibilities as a mandated reporter.

AIPA does NOT amend the law in regard to mandated reporters or does NOT in any way change or lessen the responsibilities of mandated reporters.

Mandated reporters who learn of abandonment are still obligated to fulfill their legal responsibility.

The following figure illustrates normal and suspicious bruising areas. Note the “normal” areas versus the “suspicious” areas.

(AbuseWatch.net, 2012)

In addition to location, the size and the shape of the injury needs to be considered.

Children are susceptible to injuries in relation to their developmental stage.

If a plausible explanation is offered, consider the age of the child and the location of a suspicious injury when developing your thoughts about “reasonable cause to suspect.”

Accidental injuries usually involve injury to the boney prominences of the body, i.e., shins, elbows, knees. For example:

• Toddlers fall while learning to walk.
• Young children “skin” elbows and knees when learning to ride a bicycle.

Suspicious injuries usually occur in areas not susceptible to accidental, age-appropriate areas.

Common physical indicators are severe unexplained or suspicious bruises and welts, fractures, burns, lacerations, or abrasions. Specific physical indicators are (Research foundation, 2011, pg. 6) (NYOFS, 2016):

1. Unexplained bruises and welts
   1. On face, lips, mouth, torso, back, buttocks or thighs.

Handprint Injury
(AbuseWatch.net, 2012)

(AbuseWatch.net, 2012)

2. Bruising of torso, buttocks, and thighs
3. Bruises in various stages of healing clustered bruises forming regular patterns that might reflect the shape of an article used to inflict the injury
4. Bruises on several different areas
5. Bruises regularly appear after absence, weekend, or vacation

2. Unexplained fractures
   1. To nose, skull, or facial structure
   2. In various stages of healing
   3. Multiple or Spiral fractures

Spiral Fracture
(AbuseWatch.net, 2012)

4. Swollen or tender lambs

3. Unexplained burns
   1. Cigar, cigarette burns especially on the soles of feet, palms, back and buttocks

Cigarette burn
(AbuseWatch.net, 2012)

2. Immersion burns: sock like, glove like, doughnut shaped on buttocks or genitalia

Glove like burn
(AbuseWatch.net, 2012)

Sock like burn
AbuseWatch.net, 2012)

3. Patterned like electric burner or iron

Steam Iron Injury
(AbuseWatch.net, 2012)

4. Rope burns on arms, legs, neck, or torso

Looped cord injury (AbuseWatch.net, 2012)

4. Unexplained lacerations or abrasions
   1. To mouth, lips, gums, or eyes
   2. To external genitalia
   3. On back of arms, legs, or torso
   4. Human bite marks
   5. Frequent injuries that are accidental or unexplained

Accidental injuries usually involve injury on a bony prominence of the body such as elbows and knees and shins. Suspicious injuries usually occur in areas not susceptible to accidental age-appropriate areas. The following pictures indicate areas where children would not normally bruise, and suspicious bruising areas, as well as other suspicious areas of injury.

Bruising Areas
(AbuseWatch.net, 2012)

Suspicious areas of bruising
(AbuseWatch.net, 2012)

Clues to the mechanism of injury
(AbuseWatch.net, 2012)

Consider the size and shape of the injury, as well as the location of injury (Research foundation, 2011). Consider the relationship of the mechanism of injury (explanation of how the injury occurred) to the child’s developmental stage. For example, toddlers fall when they learn to walk, and young children scrape their knees when learning to ride a bicycle. Consider if the story that was given as an explanation for an injury would produce the physical indicators that are present. For instance, a toddler falls to the floor while walking, not striking anything when he fell. That toddler has bruises on the back of his legs. One would expect that from a fall while walking, the toddler would have bruises and scrapes on his hands, knees, and shins; not bruises on the back of his legs.

Child behavioral indicators of physical abuse may be (Research foundation, 2011, participant’s guide pg. 6) (NYOFS, 2016):

1. The child is wary of adult contact
2. Apprehensive when other children cry
3. Demonstrates behavioral extremes
4. Frightened of parents
5. Afraid to go home
6. Reports injury by a parent
7. Wears long sleeve or similar clothing to hide injuries
8. Seeks affection from adults

Parent behavioral indicators of physical abuse may be (Research foundation, 2011, participant’s guide pg. 6) (NYOFS, 2016):

1. Seemed unconcerned about the child
2. Takes a usual amount of time to obtain medical care for the child
3. Offers inadequate or inappropriate explanations for the injury
4. Gives different explanations for the same injury
5. Misuses drugs or alcohol
6. Disciplines the child too harshly considering the child’s age or what she has done wrong
7. Sees the child as bad or evil
8. Has a history of abuse as a child
9. Attempts to conceal the child’s injury
10. Takes a child to a different hospital or doctor for each injury
11. Has poor impulse control

Child physical indicators of maltreatment/neglect may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Consistent hunger, poor hygiene, inappropriate dress
2. Consistent lack of supervision, especially in dangerous activities or for long periods
3. Unattended physical problems or medical or dental needs
4. Abandonment

Child behavioral indicators of maltreatment/neglect may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Begging or stealing food
2. Extended stays in school – arrives early, leaves late
3. Attendance at school infrequent
4. Consistent fatigue, falls asleep in class
5. Alcohol and drug abuse
6. States there is no caretaker

Parental behavior indicators of maltreatment/neglect may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Misuses alcohol or other drugs
2. Has disorganized, upsetting home life
3. Is apathetic, feeling nothing will change
4. Is isolated from friends, relatives, neighbors
5. Has long term chronic illness
6. Cannot be found
7. Has history of neglect as a child
8. Exposes child to unsafe living conditions
9. Evidences limited intellectual capacity

Child physical indicators of emotional maltreatment may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Conduct disorders such as fighting in school, antisocial, or destructive
2. Habit disorders such as rocking, fighting, or sucking fingers
3. Neurotic disorders such as speech disorders, sleep problems, or inhibition of play
4. Psychoneurotic reactions such as phobias, hysterical reactions, compulsions, or hypochondria
5. Lags in physical development
6. Failure to thrive

FIG. 6-3. Photograph of patient with marked failure to thrive (case 6-7).
(AbuseWatch.net, 2012)

Child behavioral indicators of emotional maltreatment may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Overly adaptive behavior such as inappropriately adult or inappropriately infantile
2. Developmental delays, mental or emotional
3. Extremes of behavior such as compliant, passive, aggressive, or demanding
4. Suicide attempt or gestures or self-mutilation

Parent behavioral indicators of emotional maltreatment may be (Research foundation, 2011, participant’s guide pg. 7) (NYOFS, 2016):

1. Treats children in the family unequally
2. Doesn’t seem to care much about the child’s problem
3. Blames or belittles the child
4. Is cold and rejecting
5. Inconsistent behavior toward the child

Child physical indicators of sexual abuse may be (Research foundation, 2011, participant’s guide pg. 8) (NYOFS, 2016):

1. Difficulty in walking or sitting
2. Torn, sustained, or bloody underclothing
3. Pain or itching in genitalia
4. Pregnancy, especially in early adolescence
5. Bruises or bleeding in external genitalia, vaginal or anal areas
6. Sexually transmitted diseases, especially in pre-adolescent age group including venereal oral infections

Child behavioral indicators of sexual abuse may be (Research foundation, 2011, participant’s guide pg. 8) (NYOFS, 2016):

1. Unwilling to change for or participate in physical education class
2. Withdrawal, fantasy, or infantile behavior
3. Bizarre, sophisticated, unusual sexual behavior or knowledge
4. Self-injurious behaviors, suicide attempts
5. Poor peer relationships
6. Aggressive or disruptive behavior, delinquency, running away, or school truancy
7. Reports sexual assault by caretakers
8. Exaggerated fear of closeness or physical contact

Parent behavioral indicators of sexual abuse may be (Research foundation, 2011, participant’s guide pg. 8) (NYOFS, 2016):

1. Very protective or jealous of the child
2. Encourages the child to engage in prostitution or sexual acts in the presence of caretaker
3. Misuses alcohol or drugs
4. Is geographically isolated and/or lacking in social and emotional contacts outside the family
5. Has low self-esteem

• Case Study A
  • What indicators are present?
    • Sexual abuse and verbal disclosure
  • Is there reasonable cause to suspect abuse or maltreatment?
    • Yes
  • Is there a parent or other person responsible for the suspected abuse or maltreatment?
    • 38-year-old boyfriend is an adult living in the home acting as a caregiver
  • What are your next steps?
    • Call SCR
• Case Study B
  • What indicators are present?
    • Bruises, scrapes
  • Is there reasonable cause to suspect abuse or maltreatment?
    • No, the story is consistent with a bike injury. Injuries sustained in an accidental fall would be along one side of the child’s body.
  • Is there a parent or other person responsible for the suspected abuse or maltreatment?
    • No
  • What are your next steps?
    • Treat the child’s injury.
• Case Study C
  • What indicators are present?
    • Neonatal drug withdrawal and no plan for the baby
  • Is there reasonable cause to suspect abuse or maltreatment?
    • Yes
  • Is there a parent or other person responsible for the suspected abuse or maltreatment?
    • Mother
  • What are your next steps?
    • Call SCR
• Case Study D
  • What indicators are present?
    • Spiral fracture, the explanation is not plausible
  • Is there reasonable cause to suspect abuse or maltreatment?
    • Yes
  • Is there a parent or other person responsible for the suspected abuse or maltreatment?
    • Mother
  • What are your next steps?
    • Call SCR

Download the LDSS-2221A PDF Form here

How and where do I report child abuse and/or maltreatment?

• Reports of suspected child abuse or maltreatment should be made immediately -- at any time of the day and on any day of the week -- by telephone to the New York Statewide Central Register of Child Abuse and Maltreatment (sometimes referred to as the State Central Register or SCR). The telephone numbers are:
  • Child Abuse Hotline Number: 1-800-342-3720
• The Child Protective Specialist who answers your call will ask you for as much information as you can provide about both the suspected abuse or maltreatment and the family about which you are calling. Below are examples of some questions the Child Protective Specialist might ask you when you call. Even if you have very little information available to you, please call the SCR. The specialists will analyze the information you do have and determine if it is sufficient to register a report.
  • What is the nature and extent of the child's injuries, or the risk of harm to the child?
  • Have there been any prior suspicious injuries to this child or his/ her siblings?
  • What is the child's name, home address, and age?
  • What is the name and address of the parent or other person legally responsible who caused the injury, or created the risk of harm to the child?
  • What are the names and addresses of the child's siblings and parents if different from the information provided above?
  • Do you have any information regarding the treatment of the child, or the child's current whereabouts?

Where can I find the laws pertaining to Child Protective Services and Social Services?

• There are two bodies of law in New York State that deal with child abuse and maltreatment in a familial context. They are the Social Services Law (SSL) and the Family Court Act (FCA). Further, some acts of child abuse and maltreatment are also crimes. For more information on the crimes associated with child abuse and maltreatment, you should contact your local police or district attorney's office or refer to the Penal Law.
• Title Six of Article Six of the Social Services Law, specifically Sections 411-428, define child abuse and maltreatment. The law also outlines the roles and responsibilities of the Office of Children and Family Services (OCFS) and Local Departments of Social Services (LDSS) regarding investigations, outcomes and records related to such.
• Article 10 of the Family Court Act, specifically section 1012 of the FCA, further defines child abuse, maltreatment and other key terms commonly used in investigations and reports.
• Both these sections of law can be found at the New York State Legislature website. Choose the link "Laws of New York," and scroll down to the "S" section for Social Services Law.
• Then look for Title Six of Article Six.
• A similar process will allow you to find the relevant sections of the Family Court Act.

What is HIPAA and does it affect or limit my responsibility as a mandated reporter of suspected child abuse or maltreatment?

• HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. The privacy provisions contained in this regulation do not affect the responsibilities of mandated reporters, as they are defined in the New York State Social Services Law.
• Information concerning the provisions of HIPAA may be found here.

What happens after I make a report?

• The Child Protective Service (CPS) unit of the local department of social services is required to begin an investigation of each report within 24 hours. The investigation should include an evaluation of the safety of the child named in the report and any other children in the home, and a determination of the risk to the children if they continue to remain in the home.
• CPS may take a child into protective custody if it is necessary for the protection from further abuse or maltreatment. Based upon an assessment of the circumstances, CPS may offer the family appropriate services. The CPS caseworker has the obligation and authority to petition the Family Court to mandate services when they are necessary for the care and protection of a child.
• CPS has 60 days after receiving the report to determine whether the report is "indicated" or "unfounded." The law requires CPS to provide written notice to the parents or other subjects of the report concerning the rights accorded to them by the New York State Social Services Law. The CPS investigator will also inform the SCR of the determination of the investigation.

What does the language that amends SSL §415 regarding mandated reporters and the provision of records mean?

• Chapter 3 provides that:
  • Notwithstanding the privileges set forth in article forty-five of the civil practice law and rules, and any other provision of law to the contrary, mandated reporters who make a report which initiates an investigation of an allegation of child abuse or maltreatment are required to comply with all requests for records made by a child protective service relating to such report, including records relating to diagnosis, prognosis or treatment, and clinical records, of any patient or client that are essential for a full investigation of allegations of child abuse or maltreatment pursuant to this title; provided, however, that disclosure of substance abuse treatment records shall be made pursuant to the standards and procedures for disclosure of such records delineated in federal law.
• This language is not intended to be an expansion of a mandated reporters current obligations under the existing language of SSL §415. Under current law, if a mandated reporter has reasonable cause to suspect that a child coming before him or her in his or her professional/official capacity is an abused or maltreated child, he or she must immediately report such suspicion to the Statewide Central Register of Child Abuse and Maltreatment. SSL §§413, 415.
• Since the passage of the federal HIPAA, confusion has arisen regarding the obligation of a mandated reporter to provide copies of written records that underlie the report. The intent of the amendment is to make clear that the mandated reporters obligation also extends to the provision of the records necessary to investigate the report, as has always been the case.

Regarding the requirement that mandated reporters provide records needed for a CPS investigation irrespective of HIPAA constraints: Does this only apply when the records are controlled by the mandated reporter who is the source of the report, or any mandated reporter that has had contact with the subject family?

• The amendment to SSL §415 only applies to the records of the mandated reporter who was the source of the report of suspected child abuse or maltreatment. However, for a mandated reporter employed by an institution, this requirement applies to all of the records of the institution that pertain to the report regardless of who actually made the report.
• Additionally, the records that CPS requests should be limited only to information that directly pertains to the report itself.

Who decides what information pertaining to the report is "essential for a full investigation" and therefore must be provided to CPS: the mandated reporter or CPS?

• In the first instance, the mandated reporter to whom the request is directed makes the determination of what information is essential. If CPS believes that the mandated reporter has additional essential information pertaining to the report, CPS should ask the mandated reporter for the additional records and attempt to come to agreement regarding any additional records. If CPS and the mandated reporter cannot come to agreement and CPS disagrees with the mandated reporter's rationale for why the records are not relevant to the report, CPS may seek a court order pursuant to Civil Practice Law and Rules (CPLR) Article 31 and SSL §415 directing the mandated reporter to produce the essential information.

Do the amendments to SSL §415 apply where a mandated reporter (e.g. mental health therapist or domestic violence service provider) makes the report based on information disclosed by a parent who is not alleged to be the subject and the mandated reporter only has additional information concerning such allegedly non-offending parent?

• Where the reporter has no other records or other additional information pertaining to the allegations contained in the report other than the portion of the records relating to the information disclosed by the parent not alleged to be the subject, the amendments to Section 415 of the SSL would not apply. Nothing in the amendments suggests that the reporter provide information about, for example, the mental health services being received by the non-subject parent, unless that information is determined by the reporter to be essential in supporting the information contained in the report.

Must the mandated reporter receive written consent from the parent(s) in order to provide CPS with the additional essential information?

• The statutory amendments do not require written consent and are intended to promote CPS getting the needed supplemental information that supports the initial report. However, good practice would dictate seeking the consent, or notifying the parent(s) that such essential information is being (and is required to be) shared, unless the child's health or safety would be put at risk by notifying the parent(s). If the parent does not consent, however, the mandated reporter must still provide the information.

SSL § 412

I. When used in this title and unless the specific context indicates otherwise:

• 1. An "abused child" means:
  • (a) a child under eighteen years of age defined as an abused child by the family court act;
  • (b) a child under the age of eighteen years who is defined as an abused child in residential care pursuant to subdivision eight of this section; or
  • (c) a child with a handicapping condition, as defined in subdivision one of section forty-four hundred one of the education law, who is eighteen years of age or older, is in residential care in a school or facility described in paragraph (c), (d), (e) or (f) of subdivision seven of this section, and is defined as an abused child pursuant to subdivision eight of this section; provided that such term shall include a pupil with a handicapping condition in residential care in such a school or facility which is defined as an abused child pursuant to subdivision eight of this section, is twenty-one years of age, and is entitled, pursuant to subdivision five of section forty-four hundred two of the education law, to remain in such school or facility until either the termination of the school year or the termination of the summer program, as applicable;
• 2. A "maltreated child" includes:
  • (a) a child under eighteen years of age not in "residential care" as defined in subdivision seven of this section:
    • (i) defined as a neglected child by the family court act, or
    • (ii) who has had serious physical injury inflicted upon him by other than accidental means; or
  • (b) a child in residential care as defined in subdivision seven of this section who is: (i) under eighteen years of age, except that a child with a handicapping condition, as defined in subdivision one of section forty-four hundred one of the education law, who is eighteen years of age or older, is in residential care in a school or facility described in paragraph (c), (d), (e) or (f) of subdivision seven of this section, provided that such term shall include a pupil with a handicapping condition in residential care in such a school or facility who is twenty-one years of age, and is entitled, pursuant to subdivision five of section forty-four hundred two of the education law, to remain in such school or facility until either the termination of the school year or the termination of the summer program, as applicable; and(ii) is a neglected child in residential care as defined in subdivision nine of this section;
• 3. "Person legally responsible" for a child means a person legally responsible as defined by the family court act;
• 4. "Subject of the report" means any parent of, guardian of, custodian of or other person eighteen years of age or older legally responsible for, as defined in subdivision (g) of section one thousand twelve of the family court act, a child reported to the central register of child abuse and maltreatment who is allegedly responsible for causing injury, abuse or maltreatment to such child or who allegedly allows such injury, abuse or maltreatment to be inflicted on such child, or a director or an operator of or employee or volunteer in a home operated or supervised by an authorized agency, the division for youth, or an office of the department of mental hygiene or in a family day-care home, a day-care center, a group family day care home or a day-services program, or a consultant or any person who is an employee or volunteer of a corporation, partnership, organization or any governmental entity which provides goods or services pursuant to a contract or other arrangement which provides for such consultant or person to have regular and substantial contact with children in residential care who is allegedly responsible for causing injury, abuse or maltreatment to a child who is reported to

II. the central register of child abuse or maltreatment or who allegedly allows such injury, abuse or maltreatment to be inflicted on such child;

• 5. "Other persons named in the report" shall mean and be limited to the following persons who are named in a report of child abuse or maltreatment other than the subject of the report: the child who is reported to the central register of child abuse and maltreatment; and such child's parent, guardian, custodian or other person legally responsible for the child who have not been named in the report as allegedly responsible for causing injury, abuse or maltreatment to the child or as allegedly allowing such injury, abuse or maltreatment to be inflicted on such child; in the case of a report involving abuse or maltreatment of a child in residential care, such term shall be deemed to include the child's parent, guardian or other person legally responsible for the child who is not named in such report;
• 6. "Custodian" means a director, operator, employee or volunteer of a residential care facility or program;
• 7. "Residential care" means:
  • (a) care provided to a child who has been placed by the family court with a social services official or the state division for youth, or whose care and custody or custody and guardianship has been transferred or committed to, a social services official, another authorized agency, or the state division for youth and such care is provided in an agency operated boarding home, a group home or child care institution;
  • (b) care provided a child in a facility or program operated or certified by the state division for youth pursuant to article nineteen-G or nineteen-H of the executive law, excluding foster family care;
  • (c) care provided a child in the New York state school for the blind or the New York state school for the deaf, pursuant to the provisions of articles eighty-seven and eighty-eight of the education law;
  • (d) care provided a child in a private residential school which is within the state and which has been approved by the commissioner of education for special education services or programs;
  • (e) care provided in institutions for the instruction of the deaf and the blind which have a residential component, and which are subject to the visitation of the commissioner of education pursuant to article eighty-five of the education law;
  • (f) care provided through a residential placement of a child with a special act school district listed in chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, as amended; or
  • (g) care provided a child in a residential facility licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities, excluding family care homes;
  • (h) care provided by an authorized agency licensed to provide both care enumerated in paragraph (a) of this subdivision and care provided a child in a residential facility licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities, excluding family care homes.
• 8. "Abused child in residential care" means a child whose custodian:
  • (a)
    • (i) inflicts any injury upon such child by other than accidental means which causes death, serious or protracted disfigurement, serious or protracted impairment of physical health, serious or protracted loss or impairment of the function of any organ, or a serious emotional injury; or
    • (ii) by their conduct and with knowledge or deliberate indifference allows any such injury to be inflicted upon such child; or
  • (b)
    • (i) creates a substantial risk of any injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, protracted impairment of physical health, protracted loss or impairment of the function of any organ, or a serious emotional injury; or
    • (ii) by his or her conduct and with knowledge or deliberate indifference creates a substantial risk of such injury to such child; or
• 9. commits, promotes or knowingly permits the commission of a sex offense against such child, as described in article one hundred thirty of the penal law; allows, permits or encourages such child to engage in any act described in article two hundred thirty of the penal law; commits any of the acts described in sections 255.25, 255.26, and 255.27 of the penal law; or allows or promotes or uses such child to engage in acts or conduct described in article two hundred sixty-three of the penal law, provided, however, that
  • (a) the corroboration requirements in the penal law and
  • (b) the age requirements for the application of articles one hundred thirty, two hundred thirty and two hundred sixty-three of such law and any age-based element of any crime described therein shall not apply to the provisions of this title; or
• 10. fails to comply with a rule or regulation involving care, services or supervision of a child promulgated by a state agency operating, certifying or supervising a residential facility or program, and such failure to comply results in death, serious or protracted disfigurement, serious or protracted impairment of physical health, or serious or protracted loss or impairment of the function of any organ where such result was reasonably foreseeable.
• 11. "Neglected child in residential care" means a child whose custodian:
  • (a) inflicts by act or omission physical injury, excluding minor injury, to such child by other than accidental means;
  • (b) creates a substantial risk of physical injury, excluding minor injury, to such child by other than accidental means; or
  • (c) fails to comply with a rule or regulation involving care, services or supervision of a child promulgated by a state agency operating, certifying, or supervising a residential facility or program, and such failure to comply results in physical injury, excluding minor injury, or serious emotional injury to such child where such result was reasonably foreseeable; or
  • (d) fails to meet a personal duty imposed by an agreed upon plan of prevention and remediation pursuant to this chapter or the mental hygiene law, the executive law or the education law, arising from abuse or neglect of a child in residential care and such failure results in physical injury, excluding minor injury, or serious emotional injury or the risk thereof to the child; or
  • (e) intentionally administers to the child any prescription drug other than in substantial compliance with a physician's, physician's assistant's or nurse practitioner's prescription.
• 12. "Institutionally neglected child in residential care" means a child whose health, safety or welfare is harmed or placed in imminent danger of harm as a result of a lack of compliance with applicable standards of the state agency operating, certifying or supervising such facility or program for the care and treatment of such child or an agreed upon plan of prevention and remediation pursuant to this chapter or the mental hygiene law, the executive law or the education law, arising from abuse or neglect of a child in residential care, including, but not limited to, the provision of supervision, food, clothing, shelter, education, medical, dental, optometric or surgical care.
• 13. An "unfounded report" means any report made pursuant to this title unless an investigation determines that some credible evidence of the alleged abuse or maltreatment exists;
• 14. An "indicated report" means a report made pursuant to this title if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists.
• 15. "Substance abuse counselor" or "alcoholism counselor" means any person who has been issued a credential therefore by the office of alcoholism and substance abuse services, pursuant to paragraphs one and two of subdivision (d) of section 19.07 of the mental hygiene law.

SSL§413

Persons and officials required to report cases of suspected child abuse or maltreatment.

• (a) The following persons and officials are required to report or cause a report to be made in accor- dance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child: any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical techni- cian; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or adminis- trative license or certificate; social services worker; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility defined in subdivision four of section four hundred twelve-a of this title or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.
• (b) Whenever such person is required to report under this title in his or her capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, he or she shall make the report as required by this title and immediately notify the person in charge of such institution, school, facility or agency, or his or her designated agent. Such person in charge, or the designated agent of such person, shall be responsible for all subsequent administration necessitated by the report. Any report shall include the name, title and contact information for every staff person of the institution who is believed to have direct knowledge of the allegations in the report. Nothing in this section or title is intended to require more than one report from any such institution, school or agency.
• (c) A medical or other public or private institution, school, facility or agency shall not take any retaliatory personnel action, as such term is defined in paragraph (e) of subdivision one of section seven hundred forty of the labor law, against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee, therefore, makes a report in accordance with this title. No school, school official, child care provider, foster care provider, residential care facility provider, hospital, medical institution provider or mental health facility provider shall impose any conditions, including prior approval or prior notification, upon a member of their staff specifically required to report under this title. At the time of the making of a report, or at any time thereafter, such person or official may exercise the right to request, pursuant to paragraph (A) of subdivision four of section four hundred twenty-two of this title, the findings of an investigation made pursuant to this title or section 45.07 of the mental hygiene law.
• (d) Social services workers are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child is an abused or maltreated child where a person comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child.

• 11. Any person, institution, school, facility, agency, organization, partnership or corporation which employs persons mandated to report suspected incidents of child abuse or maltreatment pursuant to subdivision one of this section shall provide consistent with section four hundred twenty one of this chapter, all such current and new employees with written information explaining the reporting requirements set out in subdivision one of this section and in sections four hundred fifteen through four hundred twenty of this title. The employers shall be responsible for the costs associated with printing and distributing the written information.
• 12. Any state or local governmental agency or authorized agency which issues a license, certificate or permit to an individual to operate a family day care home or group family day care home shall provide each person currently holding or seeking such a license, certificate or permit with written information explaining the reporting requirements set out in subdivision one of this section and in sections four hundred fifteen through four hundred twenty of this title.
• 13. Any person, institution, school, facility, agency, organization, partnership or corporation, which employs persons who are mandated to report suspected incidents of child abuse or maltreatment pursuant to subdivision one of this section and whose employees, in the normal course of their employment, travel to locations where children reside, shall provide, consistent with section four hundred twenty one of this title, all such current and new employees with information on recognizing the signs of an unlawful methamphetamine laboratory. Pursuant to section 19.27 of the mental hygiene law, the office of alcoholism and substance abuse services shall make available to such employers information on recognizing the signs of unlawful methamphetamine laboratories.

SSL §415

Reports of suspected child abuse or maltreatment made pursuant to this title shall be made immediately by telephone or by telephone facsimile machine on a form supplied by the commissioner of the office of children and family services. Oral reports shall be followed by a report in writing within forty-eight hours after such oral report. Oral reports shall be made to the statewide central register of child abuse and maltreatment unless the appropriate local plan for the provision of child protective services provides that oral reports should be made to the local child protective service. In those localities in which oral reports are made initially to the local child protective service, the child protective service shall immediately make an oral or electronic report to the statewide central register. Written reports shall be made to the appropriate local child protective service except that written reports involving children in residential care, as defined in subdivision four of section four hundred twelve-a of this title, or being cared for in a home operated or supervised by an authorized agency, office of children and family services, or an office of the department of mental hygiene, shall be made to the statewide central register of child abuse and maltreatment which shall transmit the reports to the agency responsible for investigating the report, in accordance with paragraph (a) or (c) of subdivision eleven of section four hundred twenty two or section four hundred twenty-four-b of this title, as applicable. Written reports shall be made in a manner prescribed and on forms supplied by the commissioner of the office of children and family services and shall include the following information: the names and addresses of the child and his or her parents or other person responsible for his or her care, if known, and, as the case may be, the name and address of the residential care facility or program in which the child resides or is receiving care; the child's age, sex and race; the nature and extent of the child's injuries, abuse or maltreatment, including any evidence of prior injuries, abuse or maltreatment to the child or, as the case may be, his or her siblings; the name of the person or persons alleged to be responsible for causing the injury, abuse or maltreatment, if known; family composition, where appropriate; the source of the report; the person making the report and where he or she can be reached; the actions taken by the reporting source, including the taking of photographs and x-rays, removal or keeping of the child or notifying the medical examiner or coroner; and any other information which the commissioner of the office of children and family services may, by regulation, require, or the person making the report believes might be helpful, in the furtherance of the purposes of this title. Notwithstanding the privileges set forth in article forty-five of the civil practice law and rules, and any other provision of law to the contrary, mandated reporters who make a report which initiates an investigation of an allegation of child abuse or maltreatment are required to comply with all requests for records made by a child protective service relating to such report, including records relating to diagnosis, prognosis or treatment, and clinical records, of any patient or client that are essential for a full investigation of allegations of child abuse or maltreatment pursuant to this title; provided, however, that disclosure of substance abuse treatment records shall be made pursuant to the standards and procedures for disclosure of such records delineated in federal law. Written reports from persons or officials required by this title to report shall be admissible in evidence in any proceedings relating to child abuse or maltreatment.

SSL §416

Any person or official required to report cases of suspected child abuse and maltreatment may take or cause to be taken at public expense photographs of the areas of trauma visible on a child who is subject to a report and, if medically indicated, cause to be performed a radiological examination on the child. Any photographs or x-rays taken shall be sent to the child protective service at the time the written report is sent, or as soon thereafter as possible. Whenever such person is required to report under this title in his capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, he shall immediately notify the person in charge of such institution, school, facility or agency, or his designated agent, who shall then take or cause to be taken at public expense color photographs of visible trauma and shall, if medically indicated, cause to be performed a radiological examination on the child.

SSL §419

Any person, official, or institution participating in good faith in the providing of a service pursuant to section four hundred twenty-four of this title, the making of a report, the taking of photographs, the removal or keeping of a child pursuant to this title, or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. For the purpose of any proceeding, civil or criminal, the good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a service pursuant to section four hundred twenty-four or the disclosure of child protective services information in compliance with sections twenty, four hundred twenty-two and four hundred twenty-two-a of this chapter shall be presumed, provided such person, official or institution was acting in discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official or institution.

SSL §420

• 1. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a class A misdemeanor.
• 2. Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.

SSL §422

• 1. There shall be established in the department a statewide central register of child abuse and maltreatment reports made pursuant to this title.
• 2.
  • (a) The central register shall be capable of receiving telephone calls alleging child abuse or maltreatment and of immediately identifying prior reports of child abuse or maltreatment and capable of monitoring the provision of child protective service twenty-four hours a day, seven days a week. To effectuate this purpose, but subject to the provisions of the appropriate local plan for the provision of child protective services, there shall be a single statewide telephone number that all persons, whether mandated by the law or not, may use to make telephone calls alleging child abuse or maltreatment and that all persons so authorized by this title may use for determining the existence of prior reports in order to evaluate the condition or circumstances of a child. In addition to the single statewide telephone number, there shall be a special unlisted express telephone number and a telephone facsimile number for use only by persons mandated by law to make telephone calls, or to transmit telephone facsimile information on a form provided by the commissioner, alleging child abuse or maltreatment, and for use by all persons so authorized by this title for determining the existence of prior reports in order to evaluate the condition or circumstances of a child. When any allegations contained in such telephone calls could reasonably constitute a report of child abuse or maltreatment, such allegations shall be immediately transmitted orally or electronically by the department to the appropriate local child protective service for investigation. The inability of the person calling the register to identify the alleged perpetrator shall, in no circumstance, constitute the sole cause for the register to reject such allegation or fail to transmit such allegation for investigation. If the records indicate a previous report concerning a subject of the report, the child alleged to be abused or maltreated, a sibling, other children in the household, other persons named in the report or other pertinent information, the appropriate local child protective service shall be immediately notified of the fact, except as provided in subdivision eleven of this section. If the report involves either (i) suspected physical injury as described in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act or sexual abuse of a child or the death of a child or (ii) suspected maltreatment which alleges any physical harm when the report is made by a person required to report pursuant to section four hundred thirteen of this title within six months of any other two reports that were indicated, or may still be pending, involving the same child, sibling, or other children in the household or the subject of the report, the department shall identify the report as such and note any prior reports when transmitting the report to the local child protective services for investigation.
  • (b) Any telephone call made by a person required to report cases of suspected child abuse or maltreatment pursuant to section four hundred thirteen of this chapter containing allegations, which if true would constitute child abuse or maltreatment shall constitute a report and shall be immediately transmitted orally or electronically by the department to the appropriate local child protective service for investigation.
  • (c) Whenever a telephone call to the statewide central register described in this section is received by the department, and the department finds that the person allegedly responsible for abuse or maltreatment of a child cannot be a subject of a report as defined in subdivision four of section four hundred twelve of this chapter, but believes that the alleged acts or circumstances against a child described in the telephone call may constitute a crime or an immediate threat to the child's health or safety, the department shall convey by the most expedient means available the information contained in such telephone call to the appropriate law enforcement agency, district attorney or other public official empowered to provide necessary aid or assistance.
  • (d) A telephone call made to the statewide central register described in this section alleging facts that support a finding of the institutional neglect of a child in residential care pursuant to subdivision ten of section four hundred twelve of this article and that, if true, clearly could not support a finding that the child is an abused or neglected child in residential care, shall not constitute a report, and shall immediately be transmitted to the state agency responsible for the operation or supervision of the residential facility or program and, in the case of a facility operated or certified by an office of the state department of mental hygiene, to the state commission on quality of care for the mentally disabled, for appropriate action.
• 3. The central register shall include but not be limited to the following information: all the information in the written report; a record of the final disposition of the report, including services offered and services accepted; the plan for rehabilitative treatment; the names and identifying data, dates and circumstances of any person requesting or receiving information from the register; and any other information which the commissioner believes might be helpful in the furtherance of the purposes of this chapter.
• 4. (A) Reports made pursuant to this title as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the department, local departments, or the commission on quality of care for the mentally disabled, shall be confidential and shall only be made available to:
  • (z) an entity with appropriate legal authority in another state to license, certify or otherwise approve prospective foster and adoptive parents where disclosure of information regarding the prospective foster or adoptive parents and other persons over the age of eighteen residing in the home of such prospective parents is required by paragraph twenty of subdivision (a) of section six hundred seventy-one of title forty-two of the United States code.
  • (y) members of a citizen review panel as established pursuant to section three hundred seventy-one-b of this article; provided, however, members of a citizen review panel shall not disclose to any person or government official any identifying information which the panel has been provided and shall not make public other information unless otherwise authorized by statute; and
  • (x) members of a local or regional multidisciplinary investigative team as established pursuant to subdivision six of section four hundred twenty-three of this title;
  • (w) members of a local or regional fatality review team approved by the office of children and family services in accordance with section four hundred twenty-two-b of this title;
  • (v)
    • (i) officers and employees of the state comptroller or of the city comptroller of the city of New York, or of the county officer designated by law or charter to perform the auditing function in any county not wholly contained within a city, for purposes of a duly authorized performance audit, provided that such comptroller shall have certified to the keeper of such records that he or she has instituted procedures developed in consultation with the department to limit access to client-identifiable information to persons requiring such information for purposes of the audit and that appropriate controls and prohibitions are imposed on the dissemination of client-identifiable information contained in the conduct of the audit. Information pertaining to the substance or content of any psychological, psychiatric, therapeutic, clinical or medical reports, evaluations or like materials or information pertaining to such child or the child's family shall not be made available to such officers and employees unless disclosure of such information is absolutely essential to the specific audit activity and the department gives prior written approval.
    • (ii) any failure to maintain the confidentiality of client-identifiable information shall subject such comptroller or officer to denial of any further access to records until such time as the audit agency has reviewed its procedures concerning controls and prohibitions imposed on the dissemination of such information and has taken all reasonable and appropriate steps to eliminate such lapses in maintaining confidentiality to the satisfaction of the office of children and family services. The office of children and family services shall establish the grounds for denial of access to records contained under this section and shall recommend as necessary a plan of remediation to the audit agency. Except as provided in this section, nothing in this subparagraph shall be construed as limiting the powers of such comptroller or officer to access records which he or she is otherwise authorized to audit or obtain under any other applicable provision of law. Any person given access to information pursuant to this subparagraph who releases data or information to persons or agencies not authorized to receive such information shall be guilty of a class A misdemeanor;
  • (u) A child care resource and referral program subject to the provisions of subdivision six of section four hundred twenty-four-a of this title;
  • (t) a law guardian, appointed pursuant to the provisions of section ten hundred sixteen of the family court act, at any time such appointment is in effect, in relation to any report in which the respondent in the proceeding in which the law guardian has been appointed is the subject or another person named in the report, pursuant to sections ten hundred thirty-nine-a and ten hundred fiftytwo- a of the family court act;
  • (s) a child protective service of another state when such service certifies that the records and reports are necessary in order to conduct a child abuse or maltreatment investigation within its jurisdiction of the subject of the report and shall be used only for purposes of conducting such investigation and will not be re-disclosed to any other person or agency;
  • (r) in relation to a report involving a child in residential care, the director or operator of the residential facility or program and, as appropriate, the local social services commissioner or school district placing the child, the division for youth, the department of education, the commission on quality of care for the mentally disabled, the office of mental health, the office of mental retardation and developmental disabilities, and any law guardian appointed to represent the child whose appointment has been continued by a family court judge during the term of the placement, subject to the limitations contained in subdivisions nine and ten of this section and subdivision five of section four hundred twenty-four-c of this title;
  • (q) a criminal justice agency conducting an investigation of a missing child where there is reason to suspect such child or such child's sibling, parent, guardian or other person legally responsible for such child is a person named in an indicated report of child abuse or maltreatment and that such information is needed to further such investigation;
  • (p) a disinterested person making an investigation pursuant to section one hundred sixteen of the domestic relations law, provided that such disinterested person shall only make this information available to the judge before whom the adoption proceeding is pending;
  • (o) a provider or coordinator of services to which a child protective service or social services district has referred a child or a child's family or to whom the child or the child's family have referred themselves at the request of the child protective service or social services district, where said child is reported to the register when the records, reports or other information are necessary to enable the provider or coordinator to establish and implement a plan of service for the child or the child's family, or to monitor the provision and coordination of services and the circumstances of the child and the child's family, or to directly provide services; provided, however, that a provider of services may include appropriate health care or school district personnel, as such terms shall be defined by the department; provided however, a provider or coordinator of services given access to information concerning a child pursuant to this subparagraph (o) shall, notwithstanding any inconsistent provision of law, be authorized to re-disclose such information to other persons or agencies which also provide services to the child or the child's family only if the consolidated services plan prepared and approved pursuant to section thirty-four-a of this chapter describes the agreement that has been or will be reached between the provider or coordinator of service and the local district. An agreement entered into pursuant to this subparagraph shall include the specific agencies and categories of individuals to whom re-disclosure by the provider or coordinator of services is authorized. Persons or agencies given access to information pursuant to this subparagraph may exchange such information in order to facilitate the provision or coordination of services to the child or the child’s family;
  • (n) chief executive officers of authorized agencies, directors of day care centers and directors of facilities operated or supervised by the department of education, the division for youth, the office of mental health or the office of mental retardation and developmental disabilities, in connection with a disciplinary investigation, action, or administrative or judicial proceeding instituted by any ofsuch officers or directors against an employee of any such agency, center or facility who is the subject of an indicated report when the incident of abuse or maltreatment contained in the report occurred in the agency, center, facility or program, and the purpose of such proceeding is to determine whether the employee should be retained or discharged; provided, however, a person given access to information pursuant to this subparagraph (n) shall, notwithstanding any inconsistent provision of law, be authorized to redisclose such information only if the purpose of such re-disclosure is to initiate or present evidence in a disciplinary, administrative or judicial proceeding concerning the continued employment or the terms of employment of an employee of such agency, center or facility who has been named as a subject of an indicated report and, in addition, a person or agency given access to information pursuant to this subparagraph (n) shall also be given information not otherwise provided concerning the subject of an indicated report where the commission of an act or acts by such subject has been determined in proceedings pursuant to article ten of the family court act to constitute abuse or neglect;
  • (m) the New York city department of investigation provided however, that no information identifying the subjects of the report or other persons named in the report shall be made available to the department of investigation unless such information is essential to an investigation within the legal authority of the department of investigation and the state department of social services gives prior approval;
  • (l) a district attorney, an assistant district attorney or investigator employed in the office of a district attorney, a sworn officer of the division of state police, of the regional state park police, of a city police department, or of a county, town or village police department or county sheriff's office or department when such official requests such information stating that such information is necessary to conduct a criminal investigation or criminal prosecution of a person, that there is reasonable cause to believe that such person is the subject of a report, and that it is reasonable to believe that due to the nature of the crime under investigation or prosecution, such person is the subject of a report, and that it is reasonable to believe that due to that nature of the crime under investigation or prosecution, such records may be related to the criminal investigation or prosecution;
  • (k) a probation service conducting an investigation pursuant to article three or seven or section six hundred fifty-three of the family court act where there is reason to suspect the child or the child's sibling may have been abused or maltreated and such child or sibling, parent, guardian or other person legally responsible for the child is a person named in an indicated report of child abuse or maltreatment and that such information is necessary for the making of a determination or recommendation to the court; or a probation service regarding a person about whom it is conducting an investigation pursuant to article three hundred ninety of the criminal procedure law, or a probation service or the state division of parole regarding a person to whom the service or division is providing supervision pursuant to article sixty of the penal law or section two hundred fifty-nine-a of the executive law, where the subject of investigation or supervision has been convicted of a felony under article one hundred twenty, one hundred twenty-five or one hundred thirty-five of the penal law or any felony or misdemeanor under article one hundred thirty, two hundred thirty-five, two hundred forty-five, two hundred sixty or two hundred sixty-three of the penal law, or has been indicted for any such felony and, as a result, has been convicted of a crime under the penal law, where the service or division requests the information upon a certification that such information is necessary to conduct its investigation, that there is reasonable cause to believe that the subject of an investigation is the subject of an indicated report and that there is reasonable cause to believe that such records are necessary to the investigation by the probation service or the state division of parole, provided, however, that only indicated reports shall be furnished pursuant to this subdivision;
  • (j) the state commission on quality of care for the mentally disabled in connection with an investigation being conducted by the commission pursuant to article forty-five of the mental hygiene law;
  • (i) a provider agency as defined by subdivision three of section four hundred twenty-four-a of this chapter, or a licensing agency as defined by subdivision four of section four hundred twenty-four-a of this chapter, subject to the provisions of such section;
  • (h) any person engaged in a bona fide research purpose provided, however, that no information identifying the subjects of the report or other persons named in the report shall be made available to the researcher unless it is absolutely essential to the research purpose and the department gives prior approval;
  • (g) any appropriate state legislative committee responsible for child protective legislation;
  • (f) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;
  • (e) a court, upon a finding that the information in the record is necessary for the determination of an issue before the court;
  • (d) any person who is the subject of the report or other persons named in the report;
  • (c) a duly authorized agency having the responsibility for the care or supervision of a child who is reported to the central register of abuse and maltreatment;
  • (b) a person authorized to place a child in protective custody when such person has before him or her a child whom he or she reasonably suspects may be abused or maltreated and such person requires the information in the record to determine whether to place the child in protective custody;
  • (a) a physician who has before him or her child whom he or she reasonably suspects may be abused or maltreated;

After a child, other than a child in residential care, who is reported to the central register of abuse or maltreatment reaches the age of eighteen years, access to a child's record under subparagraphs (a) and (b) of this paragraph shall be permitted only if a sibling or offspring of such child is before such person and is a suspected victim of child abuse or maltreatment. In addition, a person or official required to make a report of suspected child abuse or maltreatment pursuant to section four hundred thirteen of this chapter shall receive, upon request, the findings of an investigation made pursuant to this title or section 45.07 of the mental hygiene law. However, no information may be released unless the person or official's identity is confirmed by the department. If the request for such information is made prior to the completion of an investigation of a report, the released information shall be limited to whether the report is "indicated," "unfounded" or “under investigation," whichever the case may be. If the request for such information is made after the completion of an investigation of a report, the released information shall be limited to whether the report is "indicated" or “unfounded," whichever the case may be. A person given access to the names or other information identifying the subjects of the report, or other persons named in the report, except the subject of the report or other persons named in the report, shall not divulge or make public such identifying information unless he or she is a district attorney or other law enforcement official and the purpose is to initiate court action, or the disclosure is necessary in connection with the investigation or prosecution of the subject of the report for a crime alleged to have been committed by the subject against another person named in the report. Nothing in this section shall be construed to permit any release, disclosure or identification of the names or identifying descriptions of persons who have reported suspected child abuse or maltreatment to the statewide central register or the agency, institution, organization, program or other entity where such persons are employed or the agency, institution, organization or program with which they are associated without such persons' written permission except to persons, officials, and agencies enumerated in subparagraphs (e), (f), (h), (j), (l), (m) and (v) of this paragraph.

To the extent that persons or agencies are given access to information pursuant to subparagraphs (a), (b), (c), (j), (k), (l), (m), (o) and (q) of this paragraph, such persons or agencies may give and receive such information to each other in order to facilitate an investigation conducted by such persons or agencies.

• (B)Notwithstanding any inconsistent provision of law to the contrary, a city or county social services commissioner may withhold, in whole or in part, the release of any information which he or she is authorized to make available to persons or agencies identified in subparagraphs (a), (k), (l), (m), (n), (o), (p) and (q) of paragraph (A) of this subdivision if such commissioner determines that such information is not related to the purposes for which such information is requested or when such disclosure will be detrimental to the child named in the report.
• (C) A city or county social services commissioner who denies access by persons or agencies identified in subparagraphs (a), (k), (l), (m), (n), (o), (p) and (q) of paragraph (A) of this subdivision to records, reports or other information or parts thereof maintained by such commissioner in accordance with this title shall, within ten days from the date of receipt of the request fully explain in writing to the person requesting the records, reports or other information the reasons for the denial.
• (D) A person or agency identified in subparagraphs (a), (k), (l), (m), (n), (o), (p) and (q) of paragraph (A) of this subdivision who is denied access to records, reports or other information or parts thereof maintained by a local department pursuant to this title may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules.

• 5. (a) Unless an investigation of a report conducted pursuant to this title or subdivision (c) of section 45.07 of the mental hygiene law determines that there is some credible evidence of the alleged abuse or maltreatment, all information identifying the subjects of the report and other persons named in the report shall be legally sealed forthwith by the central register and any local child protective services or the state agency which investigated the report. Such unfounded reports may only be unsealed and made available:
  • (i) to the office of children and family services for the purpose of supervising a social services district;
  • (ii) to the office of children and family services and local or regional fatality review team members for the purpose of preparing a fatality report pursuant to section twenty or four hundred twenty-two-b of this chapter;
  • (iii) to a local child protective service, the office of children and family services, all members of a local or regional multidisciplinary investigative team, the commission on quality of care for the mentally disabled, or the department of mental hygiene, when investigating a subsequent report of suspected abuse or maltreatment involving a subject of the unfounded report, a child named in the unfounded report, or a child’s sibling named in the unfounded report;
  • (iv) to the subject of the report; and
  • (v) to a district attorney, an assistant district attorney, an investigator employed in the office of a district attorney, or to a sworn officer of the division of state police, of a city, county, town or village police department or of a county sheriff's office when such official verifies that the report is necessary to conduct an active investigation or prosecution of a violation of subdivision three of section 240.55 of the penal law.
• (b) Persons given access to unfounded reports pursuant to subparagraph (v) of paragraph (a) of this subdivision shall not re-disclose such reports except as necessary to conduct such appropriate investigation or prosecution and shall request of the court that any copies of such reports produced in any court proceeding be redacted to remove the names of the subjects and other persons named in the reports or that the court issue an order protecting the names of the subjects and other persons named in the reports from public disclosure. The local child protective service or state agency shall not indicate the subsequent report solely based upon the existence of the prior unfounded report or reports. Notwithstanding section four hundred fifteen of this title, section one thousand forty-six of the family court act, or, except as set forth herein, any other provision of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action; provided, however, an unfounded report may be introduced into evidence:
  • (i) by the subject of the report where such subject is a respondent in a proceeding under article ten of the family court act or is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment; or
  • (ii) in a criminal court for the purpose of prosecuting a violation of subdivision three of section 240.55 of the penal law. Legally sealed unfounded reports shall be expunged ten years after the receipt of the report. Whenever the office of children and family services determines that there is some credible evidence of abuse or maltreatment as a result of an investigation of a report conducted pursuant to subdivision (c) of section 45.07 of the mental hygiene law, the office of children and family services shall notify the commission on quality of care for the mentally disabled.
• (c) Notwithstanding any other provision of law, the office of children and family services may, in its discretion, grant a request to expunge an unfounded report where:
  • (i) the source of the report was convicted of a violation of subdivision three of section 240.55 of the penal law in regard to such report; or
  • (ii) the subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment; provided however, that the absence of credible evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report. Nothing in this paragraph shall require the office of children and family services to hold an administrative hearing in deciding whether to expunge a report. Such office shall make its determination upon reviewing the written evidence submitted by the subject of the report and any records or information obtained from the state or local agency which investigated the allegations of abuse or maltreatment.
• * 5-a. Upon notification from a local social services district, that a report is part of the family assessment and services track pursuant to subparagraph (i) of paragraph (c) of subdivision four of section four hundred twenty-seven-a of this title, the central register shall forthwith identify the report as an assessment track case and legally seal such report.

* NB Repealed June 1, 2011

• 6. In all other cases, the record of the report to the central register shall be expunged ten years after the eighteenth birthday of the youngest child named in the report. In the case of a child in residential care as defined in subdivision seven of section four hundred twelve of this chapter, the record of the report to the central register shall be expunged ten years after the reported child's eighteenth birthday. In any case and at any time, the commissioner may amend any record upon good cause shown and notice to the subjects of the report and other persons named in the report.
• 7. At any time, a subject of a report and other persons named in the report may receive, upon request, a copy of all information contained in the central register; provided, however, that the commissioner is authorized to prohibit the release of data that would identify the person who made the report or who cooperated in a subsequent investigation or the agency, institution, organization, program or other entity where such person is employed or with which he is associated, which he reasonably finds will be detrimental to the safety or interests of such person.
• 8.
  • (a)
    • (i) At any time subsequent to the completion of the investigation but in no event later than ninety days after the subject of the report is notified that the report is indicated the subject may request the commissioner to amend the record of the report. If the commissioner does not amend the report in accordance with such request within ninety days of receiving the request, the subject shall have the right to a fair hearing, held in accordance with paragraph (b) of this subdivision, to determine whether the record of the report in the central register should be amended on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this title.
    • (ii) Upon receipt of a request to amend the record of a child abuse and maltreatment report the department shall immediately send a written request to the child protective service or the state agency which was responsible for investigating the allegations of abuse or maltreatment for all records, reports and other information maintained by the service or state agency pertaining to such indicated report. The service or state agency shall as expeditiously as possible but within no more than twenty working days of receiving such request, forward all records, reports and other information it maintains on such indicated report to the department. The department shall as expeditiously as possible but within no more than fifteen working days of receiving such materials from the child protective service or state agency, review all such materials in its possession concerning the indicated report and determine, after affording such service or state agency a reasonable opportunity to present its views, whether there is some credible evidence to find that the subject committed the act or acts of child abuse or maltreatment giving rise to the indicated report and whether, based on guidelines developed by the department pursuant to subdivision five of section four hundred twenty-four-a of this title, such act or acts could be relevant and reasonably related to employment of the subject of the report by a provider agency, as defined by subdivision three of section four hundred twenty-four-a of this title, or relevant and reasonably related to the subject of the report being allowed to have regular and substantial contact with children who are cared for by a provider agency, or relevant and reasonably related to the approval or disapproval of an application submitted by the subject of the report to a licensing agency, as defined by subdivision four of section four hundred twenty-four-a of this title.
    • (iii) If it is determined at the review held pursuant to this paragraph (a) that there is no credible evidence in the record to find that the subject committed an act or acts of child abuse or maltreatment, the department shall amend the record to indicate that the report is "unfounded" and notify the subject forthwith.
    • (iv) If it is determined at the review held pursuant to this paragraph a) that there is some credible evidence in the record to find that the subject committed such act or acts but that such act or acts could not be relevant and reasonably related to the employment of the subject by a provider agency or to the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency or the approval or disapproval of an application which could be submitted by the subject to a licensing agency, the department shall be precluded from informing a provider or licensing agency which makes an inquiry to the department pursuant to the provisions of section four hundred twenty-four-a of this title concerning the subject that the person about whom the inquiry is made is the subject of an indicated report of child abuse or maltreatment. The department shall notify forthwith the subject of the report of such determinations and that a fair hearing has been scheduled pursuant to paragraph (b) of this subdivision. The sole issue at such hearing shall be whether the subject has been shown by some credible evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report.
    • (v) If it is determined at the review held pursuant to this paragraph (a) that there is some credible evidence in the record to prove that the subject committed an act or acts of child abuse or maltreatment and that such act or acts could be relevant and reasonably related to the employment of the subject by a provider agency or to the subject being allowed to have regular and substantial contact with children cared for by a provider agency or the approval or disapproval of an application which could be submitted by the subject to a licensing agency, the department shall notify forthwith the subject of the report of such determinations and that a fair hearing has been scheduled pursuant to paragraph (b) of this subdivision.
  • (b)
    • (i) If the department, within ninety days of receiving a request from the subject that the record of a report be amended, does not amend the record in accordance with such request, the department shall schedule a fair hearing and shall provide notice of the scheduled hearing date to the subject, the statewide central register and, as appropriate, to the child protective service or the state agency which investigated the report.
    • (ii) The burden of proof in such a hearing shall be on the child protective service or the state agency which investigated the report, as the case may be. In such a hearing, the fact that there is a family court finding of abuse or neglect against the subject in regard to an allegation contained in the report shall create an irrebuttable presumption that said allegation is substantiated by some credible evidence.
  • (c)
    • (i) If it is determined at the fair hearing that there is no credible evidence in the record to find that the subject committed an act or acts of child abuse or maltreatment, the department shall amend the record to reflect that such a finding was made at the administrative hearing, order any child protective service or state agency which investigated the report to similarly amend its records of the report, and shall notify the subject forthwith of the determination.
    • (ii) Upon a determination made at a fair hearing held on or after January first, nineteen hundred eighty-six scheduled pursuant to the provisions of subparagraph (v) of paragraph (a) of this subdivision that the subject has been shown by some credible evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report, the hearing officer shall determine, based on guidelines developed by the department pursuant to subdivision five of section four hundred twenty-four-a of this chapter, whether such act or acts are relevant and reasonably related to employment of the subject by a provider agency, as defined by subdivision three of section four hundred twenty-four-a of this title, or relevant and reasonably related to the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency or relevant and reasonably related to the approval or disapproval of an application submitted by the subject to a licensing agency, as defined by subdivision four of section four hundred twenty-four-a of this title. Upon a determination made at a fair hearing that the act or acts of abuse or maltreatment are relevant and reasonably related to employment of the subject by a provider agency or the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency or the approval or denial of an application submitted by the subject to a licensing agency, the department shall notify the subject forthwith. The department shall inform a provider or licensing agency which makes an inquiry to the department pursuant to the provisions of section four hundred twenty-four-a of this title concerning the subject that the person about whom the inquiry is made is the subject of an indicated child abuse or maltreatment report. The failure to determine at the fair hearing that the act or acts of abuse and maltreatment are relevant and reasonably related to the employment of the subject by a provider agency or to the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency or the approval or denial of an application submitted by the subject to a licensing agency shall preclude the department from informing a provider or licensing agency which makes an inquiry to the department pursuant to the provisions of section four hundred twenty-four-a of this title concerning the subject that the person about whom the inquiry is made is the subject of an indicated child abuse or maltreatment report.
  • (d) The commissioner or his or her designated agent is hereby authorized and empowered to make any appropriate order respecting the amendment of a record to make it accurate or consistent with the requirements of this title.
  • (e) Should the department grant the request of the subject of the report pursuant to this subdivision either through an administrative review or fair hearing to amend an indicated report to an unfounded report. Such report shall be legally sealed and shall be released and expunged in accordance with the standards set forth in subdivision five of this section.
• 9. Written notice of any expungement or amendment of any record, made pursuant to the provisions of this title, shall be served forthwith upon each subject of such record, other persons named in the report, the commissioner, and, as appropriate, the applicable local child protective service, the commission on quality of care for the mentally disabled, the division for youth, department of education, office of mental health, office of mental retardation and developmental disabilities, the local social services commissioner or school district placing the child, any law guardian appointed to represent the child whose appointment has been continued by a family court judge during the term of a child's placement, and the director or operator of a residential care facility or program. The local child protective service or the state agency which investigated the report, upon receipt of such notice, shall take the appropriate similar action in regard to its child abuse and maltreatment register and records and inform, for the same purpose, any other agency which received such record.
• 10. Whenever the department determines that there is some credible evidence of abuse or maltreatment as a result of an investigation of a report conducted pursuant to this title or section 45.07 of the mental hygiene law concerning a child in residential care, the department shall notify the child's parent or guardian and transmit copies of reports made pursuant to this title to the director or operator of the residential facility or program and, as applicable, the local social services commissioner or school district placing the child, division for youth, department of education, commission on quality of care for the mentally disabled, office of mental health, office of mental retardation and developmental disabilities, and any law guardian appointed to represent the child whose appointment has been continued by a family court judge during the term of a child's placement.
• 11.
  • (a) Reports and records made pursuant to this title, including any previous report concerning a subject of the report, other persons named in the report or other pertinent information, involving children who reside in residential facilities or programs enumerated in paragraphs (a), (b), (c), (d), (e), (f) and (h) of subdivision seven of section four hundred twelve of this chapter, shall be transmitted immediately by the central register to the commissioner who shall commence an appropriate investigation consistent with the terms and conditions set forth in section four hundred twenty-four-c of this title. If an investigation determines that some credible evidence of alleged abuse or maltreatment exists, the commissioner shall recommend to the local social services department, the state education department or the division for youth, as the case maybe, that appropriate preventive and remedial action including legal action, consistent with applicable collective bargaining agreements and applicable provisions of the civil service law, pursuant to standards and regulations of the department promulgated pursuant to section four hundred sixty-two of this chapter and standards and regulations of the division for youth and the department of education promulgated pursuant to section five hundred one of the executive law, sections forty-four hundred three, forty-three hundred fourteen, forty-three hundred fifty-eight and forty-two hundred twelve of the education law and other applicable provisions of law, be taken with respect to the residential facility or program and/or the subject of the report. However, nothing in this paragraph shall prevent the commissioner from making recommendations, as provided for by this paragraph, even though the investigation may fail to result in a determination that there is some credible evidence of the alleged abuse or maltreatment.
  • (b) The department shall establish standards for the provision of training to its employees charged with the investigation of reports of child abuse and maltreatment in residential care in at least the following: (a) basic training in the principles and techniques of investigation, including relationships with other investigative bodies, (b) legal issues in child protection including the legal rights of children, employees and volunteers, (c) methods of identification, remediation, treatment and prevention, (d) safety and security procedures, and (e) the principles of child development, the characteristics of children in care, and techniques of group and child management including crisis intervention. The department shall take all reasonable and necessary actions to assure that its employees are kept apprised on a current basis of all department policies and procedures relating to the protection of children from abuse and maltreatment.
  • (c) Reports and records made pursuant to this title, including any previous report concerning a subject of the report, other persons named in the report or other pertinent information, involving children who reside in a residential facility licensed or operated by the offices of mental health or mental retardation and developmental disabilities except those facilities or programs enumerated in paragraph (h) of subdivision seven of section four hundred twelve of this chapter, shall be transmitted immediately by the central register to the commission on quality of care for the mentally disabled, which shall commence an appropriate investigation in accordance with the terms and conditions set forth in section 45.07 of the mental hygiene law.
• 12. Any person who willfully permits and any person who encourages the release of any data and information contained in the central register to persons or agencies not permitted by this title shall be guilty of a class A misdemeanor.
• 13. There shall be a single statewide telephone number for use by all persons seeking general information about child abuse, maltreatment or welfare other than for the purpose of making a report of child abuse or maltreatment.
• 14. The department shall refer suspected cases of falsely reporting child abuse and maltreatment in violation of subdivision three of section 240.55 of the penal law to the appropriate law enforcement agency or district attorney.

§ 422.14 The department shall refer suspected cases of falsely reporting child abuse and maltreatment in violation of subdivision three of section 240.55 of the penal law to the appropriate law enforcement agency or district attorney. *

* [The relevant portions of the penal law were amended and the sections renumbered. The penal law reference to

intentional false reports is now at Section 240.50(4) of the penal law. The Social Service Law has not yet been

changed to reflect that.]

Penal Law

§ 240.50 Falsely reporting an incident in the third degree. A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he:

1. Initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a crime, catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result; or
2. Reports, by word or action, to an official or quasi-official agency or organization the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a catastrophe or emergency which did not in fact occur or does not in fact exist; or
3. Gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur; or (b) an allegedly impending occurrence of an offense or incident which in fact is not about to occur; or (c) false information relating to an actual offense or incident or to the alleged implication of some person therein; or
4. Reports, by word or action, an alleged occurrence or condition of child abuse or maltreatment which did not in fact occur or exist to: (a) the statewide central register of child abuse and maltreatment, as defined in title six of article six of the social services law, or (b) any person required to report cases of suspected child abuse or maltreatment pursuant to subdivision one of section four hundred thirteen of the social services law, knowing that the person is required to report such cases, and with the intent that such an alleged occurrence be reported to the statewide central register.

Falsely reporting an incident in the third degree is a class A misdemeanor.

When used in this article and unless the specific context indicates otherwise:(sections a, b, c, and d not included here)

• (e) "Abused child" means a child less than eighteen years of age whose parent or other person legally responsible for his care
  • (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
  • (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
  • (iii) commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law; allows, permits or encourages such child to engage in any act described in sections 230.25, 230.30 and 230.32 of the penal law; commits any of the acts described in section 255.25 of the penal law; or allows such child to engage in acts or conduct described in article two hundred sixty-three of the penal law provided, however, that
    • (a) the corroboration requirements contained in the penal law and
    • (b) the age requirement for the application of article two hundred sixty-three of such law shall not apply to proceedings under this article.
• (f) "Neglected child" means a child less than eighteen years of age
  • (i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care
    • (A)in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so; or
    • (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision; or
  • (ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his parents or other person legally responsible for his care.
• (g) "Person legally responsible" includes the child's custodian, guardian, any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.
• (h) "Impairment of emotional health" and "impairment of mental or emotional condition" includes a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.

§ 130.00

The following definitions are applicable to this article:

• 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.
• 2.
  • (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
  • (b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.
• 3. "Sexual contact" means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.
• 4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.
• 5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.
• 6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.
• 7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
• 8. "Forcible compulsion" means to compel by either:
  • a. use of physical force; or
  • b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
• 9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis or rectum, is capable of causing physical injury.
• 10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.
• 11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis or rectum of a child, thereby causing physical injury to such child.
• 12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty one of the education law.
• 13. "Mental health care provider" means any person who is, or is required to be, licensed or registered, or holds himself or herself out to be licensed or registered, or provides mental health services as if he or she were licensed or registered in the profession of medicine, psychology or social work under any of the following: article one hundred thirty-one, one hundred fifty-three, or one hundred fifty-four of the education law.

§ 130.05

• 1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
• 2. Lack of consent results from:
  • (a) Forcible compulsion; or
  • (b) Incapacity to consent; or
  • (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or
  • (d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse or deviate sexual intercourse, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.
• 3. A person is deemed incapable of consent when he or she is:
  • (a) less than seventeen years old; or
  • (b)mentally disabled; or
  • (c) mentally incapacitated; or
  • (d) physically helpless; or
  • (e) committed to the care and custody of the state department of correctional services or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. For purposes of this paragraph, "employee" means
    • (i) an employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates;
    • (ii) an employee of the division of parole who performs professional duties in a state correctional facility and who provides institutional parole services pursuant to section two hundred fifty-nine-e of the executive law; or
    • (iii) an employee of the office of mental health who performs professional duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law, consisting of providing custody, or medical or mental health services for such inmates; or
  • (f ) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, "employee" means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates; or
  • (g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, "employee" means an employee of the office of children and family services or of a residential facility who performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for persons committed to or placed with the office of children and family services and in residential care; or
  • (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.

§ 130.10

• 1. In any prosecution under this article in which the victim’s lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.
• 2. Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article.
• 3. In any prosecution for the crime of rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55 in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.
• 4. In any prosecution under this article in which the victim`s lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old, mentally disabled, or a client or patient and the actor is a health care provider, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.

§ 130.16

A person shall not be convicted of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim`s mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:

• (a) Establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact, as the case may be, at the time of the occurrence; and
• (b) Connect the defendant with the commission of the offense or attempted offense.

§ 130.20

A person is guilty of sexual misconduct when:

• 1. He or she engages in sexual intercourse with another person without such person’s consent; or
• 2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent; or
• 3. He or she engages in sexual conduct with an animal or a dead human body.
  • (a) Sexual misconduct is a class A misdemeanor.

§ 130.25

A person is guilty of rape in the third degree when:

• 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
• 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
• 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Rape in the third degree is a class E felony.

§ 130.30

A person is guilty of rape in the second degree when:

• 1. Being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
• 2. He or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

Rape in the second degree is a class D felony.

§ 130.35

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

• 1. By forcible compulsion; or
• 2. Who is incapable of consent by reason of being physically helpless; or
• 3. Who is less than eleven years old; or
• 4. Who is less than thirteen years old and the actor is eighteen years old or more.

Rape in the first degree is a class B felony.

§ 130.40

A person is guilty of criminal sexual act in the third degree when:

• 1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;
• 2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or
• 3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Criminal sexual act in the third degree is a class E felony.

§ 130.45

A person is guilty of criminal sexual act in the second degree when:

• 1. Being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or
• 2. He or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

Criminal sexual act in the second degree is a class D felony.

§ 130.50

A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person:

• 1. By forcible compulsion; or
• 2. Who is incapable of consent by reason of being physically helpless; or
• 3. Who is less than eleven years old; or
• 4. Who is less than thirteen years old and the actor is eighteen years old or more.

Criminal sexual act in the first degree is a class B felony.

§ 130.52

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

Forcible touching is a class A misdemeanor.

§ 130.53

A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree as defined in section 130.55 of this article, sexual abuse in the second degree, as defined in section 130.60 of this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.

Persistent sexual abuse is a class E felony.

§ 130.55

A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent; except that in any prosecution under this section, it is an affirmative defense that

• (a) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and
• (b) such other person was more than fourteen years old, and
• (c)the defendant was less than five years older than such other person.

Sexual abuse in the third degree is a class B misdemeanor.

§ 130.60

A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

• 1. Incapable of consent by reason of some factor other than being less than seventeen years old; or
• 2. Less than fourteen years old.

Sexual abuse in the second degree is a class A misdemeanor.

§ 130.65

A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:

• 1. By forcible compulsion; or
• 2. When the other person is incapable of consent by reason of being physically helpless; or
• 3. When the other person is less than eleven years old.

Sexual abuse in the first degree is a class D felony.

§ 130.65-a

• 1. A person is guilty of aggravated sexual abuse in the fourth degree when:
  • (a) He or she inserts a foreign object in the vagina, urethra, penis or rectum of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or
  • (b) He or she inserts a finger in the vagina, urethra, penis or rectum of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old.
• 2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated sexual abuse in the fourth degree is a class E felony.

§ 130.66

• 1. A person is guilty of aggravated sexual abuse in the third degree when he inserts a foreign object in the vagina, urethra, penis or rectum of another person:
  • (a) By forcible compulsion; or
  • (b) When the other person is incapable of consent by reason of being physically helpless; or
  • (c) When the other person is less than eleven years old.
• 2. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.
• 3. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated sexual abuse in the third degree is a class D felony.

§ 130.67

• 1. A person is guilty of aggravated sexual abuse in the second degree when he inserts a finger in the vagina, urethra, penis, or rectum of another person causing physical injury to such person:
  • (a) By forcible compulsion; or
  • (b) When the other person is incapable of consent by reason of being physically helpless; or
  • (c) When the other person is less than eleven years old.
• 2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated sexual abuse in the second degree is a class C felony.

§ 130.70

• 1. A person is guilty of aggravated sexual abuse in the first degree when he inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury to such person:
  • (a) By forcible compulsion; or
  • (b) When the other person is incapable of consent by reason of being physically helpless; or
  • (c) When the other person is less than eleven years old.
• 2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

Aggravated sexual abuse in the first degree is a class B felony.

§ 130.75

• 1. A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration:
  • (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or
  • (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.
• 2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

Course of sexual conduct against a child in the first degree is a class B felony.

§ 130.80

• 1. A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration:
  • (a) He or she engages in two or more acts of sexual conduct with a child less than eleven years old; or
  • (b) He or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.
• 2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

Course of sexual conduct against a child in the second degree is a class D felony.

§ 130.85

• 1. A person is guilty of female genital mutilation when:
  • (a) A person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or
  • (b) Being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child’s labia majora or labia minora or clitoris.
• 2. Such circumcision, excision, or infibulation is not a violation of this section if such act is:
  • (a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
  • (b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
• 3. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.

Female genital mutilation is a class E felony.

§ 130.90

A person is guilty of facilitating a sex offense with a controlled substance when he or she:

• 1. Knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in this article; and
• 2. Commits or attempts to commit such conduct constituting a felony defined in this article.

Facilitating a sex offense with a controlled substance is a class D felony.

§ 230.00

A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

Prostitution is a class B Misdemeanor.

§ 230.25

A person is guilty of promoting prostitution in the third degree when he knowingly:

• 1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; or
• 2. Advances or profits from prostitution of a person less than nineteen years old.

Promoting prostitution in the third degree is a class D felony.

§ 230.30

A person is guilty of promoting prostitution in the second degree when he knowingly:

• 1. Advances prostitution by compelling a person by force or intimidation to engage in prostitution, or profits from such coercive conduct by another; or
• 2. Advances or profits from prostitution of a person less than sixteen years old.

Promoting prostitution in the second degree is a class C felony.

§ 230.32

A person is guilty of promoting prostitution in the first degree when he knowingly advances or profits from prostitution of a person less than eleven years old.

Promoting prostitution in the first degree is a class B felony.

§ 255.25

A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

Incest is a class E felony.

§ 263.00

As used in this article the following definitions shall apply:

• 1. "Sexual performance" means any performance or part thereof which, for purposes of section 263.16 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section263.05 or 263.15 of this article, includes sexual conduct by a child less than seventeen years of age.
• 2. "Obscene sexual performance" means any performance which, for purposes of section 263.11 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.10of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such term is defined in section 235.00 of this chapter.
• 3. "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.
• 4. "Performance" means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience.
• 5. "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.
• 6. "Simulated" means the explicit depiction of any of the conduct set forth in subdivision three of this section which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks.
• 7. "Deviate sexual intercourse" means the conduct defined by subdivision two of section 130.00 of this chapter.
• 8. "Sado-masochistic abuse" means the conduct defined in subdivision five of section 235.20 of this chapter.

§ 263.05

A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

Use of a child in a sexual performance is a class C felony.

§ 263.10

A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age.

Promoting an obscene sexual performance by a child is a class D felony.

§ 263.11

A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any obscene performance which includes sexual conduct by a child less than sixteen years of age.

Possessing an obscene sexual performance by a child is a class E felony.

§ 263.15

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

Promoting a sexual performance by a child is a class D felony.

§ 263.16

A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

Possessing a sexual performance by a child is a class E felony.