               Duty to Report Suspected Child Abuse Under
                            42 U.S.C. § 13031
Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all covered
  professionals who learn of suspected child abuse while engaged in enumerated activities and
  professions on federal land or in federal facilities must report that abuse, regardless of where the
  suspected victim is cared for or resides.
The fact that a patient has viewed child pornography may “give reason to suspect that a child has
  suffered an incident of child abuse” under the statute, and a covered professional is not relieved of
  an obligation to report the possible abuse simply because neither the covered professional nor the
  patient knows the identity of the child depicted in the pornography.

                                                                                       May 29, 2012

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                  UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

   Section 13031 of title 42, a provision in the Victims of Child Abuse Act of
1990 (“VCAA” or “Act”), Pub. L. No. 101-647, tit. II, § 226, 104 Stat. 4789,
4806, requires persons engaged in certain activities and professions on federal
lands or in federal facilities to report “facts that give reason to suspect that a child
has suffered an incident of child abuse” if they learn such facts in the course of
their professional activities. Failure to make a report required by section 13031
could subject such persons to criminal penalties. See 18 U.S.C. § 2258 (2006).
You have raised two questions about the scope of section 13031. See Letter for the
Honorable Eric Holder, Attorney General, from Will A. Gunn, General Counsel,
Department of Veterans Affairs (Nov. 9, 2009) (“VA Letter”).
   First, you have asked whether section 13031’s reporting requirement is limited
to situations in which the suspected victim of child abuse is cared for or resides on
federal land or in a federal facility. We conclude that it is not. Instead, under the
VCAA, all persons who learn of suspected child abuse (as defined by the Act)
while engaged in the enumerated activities and professions on federal land or in
federal facilities must report that abuse, regardless of where the suspected victim
is cared for or resides. We recognize that the scope of some of the statutory
language may be ambiguous, and that narrower readings of the reporting require-
ment find some support in certain of the statute’s provisions. But we believe that
section 13031, read as a whole and in light of its purpose, is best interpreted
broadly.
   Second, you have inquired whether the VCAA’s reporting obligation is trig-
gered when a person covered by section 13031 learns that a patient under his or
her care has viewed child pornography, even if the person does not know, and has
no reason to believe the patient knows, the identity of the child or children
depicted in the pornography. We conclude that the fact that a patient has viewed
child pornography may be a “fact[] . . . giv[ing] reason to suspect that a child has



                                                  1
                       Opinions of the Office of Legal Counsel in Volume 36


suffered an incident of child abuse” under section 13031, and that the statute does
not require a covered professional to possess knowledge of the identity of an
affected child in order for the reporting duty to apply.
   We have concluded that the interpretive questions you have raised can be re-
solved using ordinary tools of statutory construction, so we have not applied the
rule of lenity even though the VCAA provides for criminal penalties. We note,
however, that a person who fails to make a report required by section 13031 will
not necessarily be subject to criminal penalties under the statute. The criminal
penalty provision contains no explicit mens rea requirement, and thus one would
almost certainly be inferred. See United States v. X-Citement Video, Inc., 513 U.S.
64, 70 (1994). While we need not decide what mens rea would apply, a court
construing section 13031 might well require a defendant to have known that a
report was legally required before imposing criminal liability for a failure to
report. Such a reading would, among other things, address any concern about
imposing criminal liability on persons who lacked clear notice that the failure to
report in their particular circumstances was unlawful.

                                                     I.

   Congress enacted the VCAA, including section 13031, as title II of the Crime
Control Act of 1990. Pub. L. No. 101-647, §§ 201-255, 104 Stat. at 4792-4815.
Section 13031 requires persons on “Federal land or in a federally operated (or
contracted) facility” who are engaged in certain activities—individuals the statute
calls “[c]overed professionals”—to report suspected incidents of child abuse. 42
U.S.C. § 13031(a)-(b) (2006). Specifically, section 13031(a) provides that

          [a] person who, while engaged in a professional capacity or activity
          described in subsection (b) of this section on Federal land or in a
          federally operated (or contracted) facility, learns of facts that give
          reason to suspect that a child has suffered an incident of child abuse,
          shall as soon as possible make a report of the suspected abuse to the
          agency designated under subsection (d) of this section.

Id. § 13031(a).1

   1
       Subsection (b) provides:
          Persons engaged in the following professions and activities are subject to the require-
          ments of subsection (a) of this section:
              (1) Physicians, dentists, medical residents or interns, hospital personnel and ad-
              ministrators, nurses, health care practitioners, chiropractors, osteopaths, pharma-
              cists, optometrists, podiatrists, emergency medical technicians, ambulance drivers,
              undertakers, coroners, medical examiners, alcohol or drug treatment personnel,
              and persons performing a healing role or practicing the healing arts.
              (2) Psychologists, psychiatrists, and mental health professionals.




                                                     2
              Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


   Section 13031(d) directs the Attorney General to designate the agency or agen-
cies to which the reports described in subsection (a) should be made. It states:

        For all Federal lands and all federally operated (or contracted) facili-
        ties in which children are cared for or reside, the Attorney General
        shall designate an agency to receive and investigate the reports de-
        scribed in subsection (a) of this section. By formal written agree-
        ment, the designated agency may be a non-Federal agency. When
        such reports are received by social services or health care agencies,
        and involve allegations of sexual abuse, serious physical injury, or
        life-threatening neglect of a child, there shall be an immediate refer-
        ral of the report to a law enforcement agency with authority to take
        emergency action to protect the child. All reports received shall be
        promptly investigated, and whenever appropriate, investigations
        shall be conducted jointly by social services and law enforcement
        personnel, with a view toward avoiding unnecessary multiple inter-
        views with the child.

Id. § 13031(d) (2006).
    Consistent with this directive, the Attorney General has issued a regulation
designating the agencies authorized to receive and investigate reports of child
abuse submitted under section 13031(a). That rule, which appears as 28 C.F.R.
§ 81.2 (2010), provides:

        Reports of child abuse required by 42 U.S.C. 13031 shall be made to
        the local law enforcement agency or local child protective services
        agency that has jurisdiction to investigate reports of child abuse or to
        protect child abuse victims in the land area or facility in question.
        Such agencies are hereby respectively designated as the agencies to
        receive and investigate such reports, pursuant to 42 U.S.C. 13031(d),
        with respect to federal lands and federally operated or contracted fa-
        cilities within their respective jurisdictions, provided that such agen-
        cies, if non-federal, enter into formal written agreements to do so

           (3) Social workers, licensed or unlicensed marriage, family, and individual coun-
           selors.
           (4) Teachers, teacher’s aides or assistants, school counselors and guidance person-
           nel, school officials, and school administrators.
           (5) Child care workers and administrators.
           (6) Law enforcement personnel, probation officers, criminal prosecutors, and ju-
           venile rehabilitation or detention facility employees.
           (7) Foster parents.
           (8) Commercial film and photo processors.
42 U.S.C. § 13031(b).




                                                 3
                  Opinions of the Office of Legal Counsel in Volume 36


       with the Attorney General, her delegate, or a federal agency with ju-
       risdiction for the area or facility in question. If the child abuse re-
       ported by the covered professional pursuant to 42 U.S.C. 13031 oc-
       curred outside the federal area or facility in question, the designated
       local law enforcement agency or local child protective services
       agency receiving the report shall immediately forward the matter to
       the appropriate authority with jurisdiction outside the federal area in
       question.

Att’y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996).
   Under section 13031, “the term ‘child abuse’ means the physical or mental
injury, sexual abuse or exploitation, or negligent treatment of a child.” 42 U.S.C.
§ 13031(c)(1) (2006). Section 13031 further explains that

       the term ‘sexual abuse’ includes the employment, use, persuasion,
       inducement, enticement, or coercion of a child to engage in, or assist
       another person to engage in, sexually explicit conduct or the rape,
       molestation, prostitution, or other form of sexual exploitation of
       children, or incest with children.

Id. § 13031(c)(4) (2006). “[T]he term ‘exploitation’ means child pornography or
child prostitution.” Id. § 13031(c)(6) (2006).
    Two other provisions in section 13031 are also relevant. Section 13031(e)
provides that “[i]n every federally operated (or contracted) facility, and on all
federal lands, a standard written reporting form, with instructions, shall be
disseminated to all mandated reporter groups,” and makes clear as well that
although “[u]se of the form shall be encouraged, . . . its use shall not take the place
of the immediate making of oral reports . . . when circumstances dictate.” Id.
§ 13031(e). Section 13031(h) provides that “[a]ll individuals in the occupations
listed in subsection (b)(1) of this section who work on Federal lands, or are
employed in federally operated (or contracted) facilities, shall receive periodic
training in the obligation to report, as well as in the identification of abused and
neglected children.” Id. § 13031(h).
    Finally, in section 226(g)(1) of the VCAA, codified as amended at 18 U.S.C.
§ 2258, Congress criminalized the failure to report child abuse as mandated by 42
U.S.C. § 13031. The criminal provision states:

       A person who, while engaged in a professional capacity or activity
       described in subsection (b) of section 226 of the Victims of Child
       Abuse Act of 1990 [42 U.S.C. § 13031] on Federal land or in a fed-
       erally operated (or contracted) facility, learns of facts that give rea-
       son to suspect that a child has suffered an incident of child abuse, as
       defined in subsection (c) of that section, and fails to make a timely




                                           4
               Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


        report as required by subsection (a) of that section, shall be fined un-
        der this title or imprisoned not more than 1 year or both.

18 U.S.C. § 2258. When the VCAA was originally enacted, the offense was a
Class B misdemeanor punishable by six months of imprisonment, id. § 226(g)(1),
104 Stat. at 4808; 18 U.S.C. § 3581(b)(7) (1988), but in 2006, Congress amended
18 U.S.C. § 2258 by raising the maximum punishment from six months to one
year of imprisonment. Adam Walsh Child Protection and Safety Act of 2006, Pub.
L. No. 109-248, § 209, 120 Stat. 587, 615. Other than this change, Congress has
amended neither 18 U.S.C. § 2258 nor 42 U.S.C. § 13031 since it enacted the
provisions in 1990.

                                                 II.

                                                 A.

    We first consider the circumstances under which covered professionals must
report suspected child abuse under the VCAA.2 We conclude that, although no
interpretation of section 13031 perfectly reconciles all of its provisions, section
13031 is best read to impose a reporting obligation on all persons who, while
engaged in the covered professions and activities on federal lands or in federal
facilities, learn of facts that give reason to suspect that child abuse has occurred,
regardless of where the abuse might have occurred or where the suspected victim
is cared for or resides. In reaching this conclusion, we considered the construction
of section 13031 that you propose, as well as two other readings that would
narrow the reporting obligation. As explained below, while all of these narrowing
constructions find support in certain provisions of the statute, they are also in
significant tension with other parts of section 13031, leading us to conclude that
section 13031 “‘as a whole’” is best read to impose the broad reporting obligation
described above. See United States v. Atlantic Research Corp., 551 U.S. 128, 135
(2007) (quoting King v. St. Vincent’s Hospital, 502 U.S. 215, 221 (1991)).

    2
      In preparing our opinion, we considered views provided by your office, the Department of Jus-
tice’s Criminal Division, the Department of Defense, the Department of State, and the Attorney
General’s Advisory Council. See E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General,
Office of Legal Counsel (“OLC”), from Alexandra Gelber, Criminal Division (Jan. 15, 2010 10:15
AM); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti,
Office of General Counsel, Dep’t of Defense (Feb. 26, 2010 5:02 PM); E-mail for Jeannie S. Rhee,
Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Dep’t of
State (July 21, 2010 2:35 PM); E-mail for Cristina M. Rodríguez, Deputy Assistant Attorney General,
Benjamin Mizer, Senior Counsel, and Matthew Roberts, Senior Counsel, OLC, from Carter Stewart,
United States Attorney for the Southern District of Ohio (Feb. 3, 2012 6:45 PM). We also solicited the
opinion of the Department of Health and Human Services, which indicated that it “has no view about
the interpretation advanced by the Veterans Administration.” E-mail for Jeannie S. Rhee, Deputy
Assistant Attorney General, OLC, from Elizabeth J. Gianturco, Senior Advisor to the General Counsel,
Dep’t of Health and Human Servs. (Apr. 21, 2010 2:16 PM).




                                                  5
                      Opinions of the Office of Legal Counsel in Volume 36


   Section 13031(a) sets forth the reporting requirement that is the VCAA’s core
directive. It provides that a covered professional engaged in a covered activity “on
Federal land or in a federally operated (or contracted) facility” who “learns of
facts that give reason to suspect that a child has suffered an incident of child
abuse, shall as soon as possible make a report of the suspected abuse to the agency
designated under subsection (d) of this section.” 42 U.S.C. § 13031(a). On its face,
this is a broad provision: It applies to covered professionals on all federal lands
and in all federal facilities and requires a report as soon as possible no matter
where the suspected child victim resides, is cared for, or may have been abused.
The express incorporation of subsection (d), however, gives rise to doubt about the
scope of subsection (a)’s reporting requirement, because subsection (d) appears to
require the Attorney General to designate an agency to receive reports only “[f]or
all Federal lands and all federally operated (or contracted) facilities in which
children are cared for or reside.” Id. § 13031(d) (emphasis added). The central
question, then, is whether the cross-reference to subsection (d) limits subsection
(a)’s otherwise broad language, and if so, in what way.3
   You suggest that it would be reasonable to read the reporting requirement as
applying “only with regard to suspected abuse of children residing or cared for on
Federal lands and in federally operated and contracted facilities,” because “42
U.S.C. § 13031(a) requires reporting only to agencies as designated under
subsection (d), and subsection (d) provides for designation only of agencies to
receive and investigate reports for Federal reservations in which children are cared
for or reside.” VA Letter at 2. In other words, you maintain that, because subsec-
tion (d) specifies agencies to receive reports only for “Federal lands and . . .
facilities in which children are cared for or reside,” 42 U.S.C. § 13031(d),
Congress intended to require reports only for suspected abuse of children who
reside or are cared for on federal lands or in federal facilities. Moreover, it might
be argued that when the Attorney General designates an agency to receive reports
for Federal lands and facilities in which children are not cared for and do not
reside, he is not making designations “under” subsection (d), because that
provision expressly addresses designations only for federal lands and facilities “in
which children are cared for or reside.” Id. This construction of section 13031, in
your view, would appropriately align the location of the suspected child victims
with subsection (d)’s designation of agencies to receive reports.
   This interpretation is not without some force, but we believe it is inconsistent
with other subsections of section 13031 and with the statute viewed in its entirety.
See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a funda-


    3
      We assume for purposes of this opinion, as do you, that the phrase “in which children are cared
for or reside” modifies both “Federal lands” and “federally operated (or contracted) facilities.” VA
Letter at 2 (“subsection (d) provides for designation . . . of agencies to receive and investigate reports
for Federal reservations in which children are cared for or reside”). The Attorney General’s regulations
do not address the issue, 28 C.F.R. pt. 81 (2010), nor do any of the submissions we received.




                                                    6
            Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


mental canon of statutory construction that the words of a statute must be read in
their context and with a view to their place in the overall statutory scheme.”). As
noted above, Congress phrased subsection (a) using broad language that contains
no limitation on the federal lands or facilities in which reporting is required, and
no residence-based limitation on the suspected child victims whose potential abuse
can give rise to a reporting obligation. 42 U.S.C. § 13031(a). In fact, section 13031
as a whole is devoid of any language that explicitly limits the suspected child
victims whose potential abuse triggers the reporting requirement.
   If Congress had intended to limit the scope of the VCAA’s reporting require-
ment in the significant manner you propose, an isolated cross-reference to
subsection (d) would have been an obscure and backhanded way to do so. Cf.
Allied Chem. & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157, 170-71 (1971) (“To accept the Board’s reasoning that the union’s § 302(c)(5)
responsibilities dictate the scope of the § 8(a)(5) collective bargaining obligation
would be to allow the tail to wag the dog.”). Subsection (d) is entitled “[a]gency
designated to receive report and action to be taken,” and purports to address only
the agencies to which reports must be made, not the professionals who must make
reports or the children who may be the subject of reports. Nothing in subsection
(d) expressly narrows the scope of potential child victims covered by the reporting
requirement. Cf. Comm’r of Internal Rev. v. Clark, 489 U.S. 726, 739 (1989) (“In
construing provisions . . . in which a general statement of policy is qualified by an
exception, we usually read the exception narrowly in order to preserve the primary
operation of the provision.”).
   Indeed, subsection (d) does not say that the Attorney General may only desig-
nate agencies to receive reports for Federal lands and facilities “in which children
are cared for or reside.” 42 U.S.C. § 13031(d). It simply specifies that the Attorney
General “shall designate an agency to receive and investigate” reports for such
lands and facilities, saying nothing about what the Attorney General should do
with respect to other Federal lands and facilities. Id. And in implementing this
authority, the Attorney General has in fact specified reporting locations for all
covered professionals who learn of any covered abuse while engaged in their
profession or activity on any federal land or facility, not solely abuse connected to
lands or facilities where children are cared for or reside. See 28 C.F.R. § 81.2.
   The broad reading of the reporting requirement gains further support from two
other provisions in the VCAA that unambiguously apply to all federal lands and
facilities, not just those where children are cared for or reside. Subsection (e)
requires dissemination of a standard written reporting form to “all mandated
reporter groups” “[i]n every federally operated (or contracted) facility, and on all
Federal lands.” 42 U.S.C. § 13031(e). In other words, reporting forms must be
disseminated not only to federal lands and facilities where children are cared for or
reside, but to all federal lands and facilities. This provision thus appears to
presume that mandated reporter groups exist in every federally operated or
contracted facility and on all federal lands. This presumption, in turn, strongly



                                         7
                  Opinions of the Office of Legal Counsel in Volume 36


suggests that Congress intended to require the reporting of abuse discovered by
covered professionals in the course of their covered activities on all federal lands
and in all federal facilities, not simply abuse that occurs on the lands and in the
facilities where children are cared for or reside.
    Subsection (h) embodies a similar premise. That provision, entitled “[t]raining
of prospective reporters,” requires “periodic training in the obligation to report, as
well as in the identification of abused and neglected children,” for “[a]ll individu-
als in the occupations listed in subsection (b)(1) of this section who work on
Federal lands, or are employed in federally operated (or contracted) facilities.” 42
U.S.C. § 13031(h). Again, this provision appears to assume that all individuals
who work in the listed occupations on all federal lands and in all federal facili-
ties—not solely those where children are cared for or reside—might encounter
suspected abuse that must be reported. This further suggests that Congress
intended to require covered professionals working on all federal lands and in all
federal facilities to report suspected abuse, because the across-the-board training
requirement otherwise would serve no clear purpose.
    The broad reading of the reporting requirement is also consistent with the scope
of subsection (b). Subsection (b)’s specific list of relevant professions and
activities echoes the mandatory reporter provisions of numerous state laws
requiring the reporting of abuse. Compare 42 U.S.C. § 13031(b) (list set forth
supra note 1) with Child Welfare Information Gateway, Dep’t of Health & Human
Servs., Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws
2 (Apr. 2010) (“Summary of State Laws”), available at http://www.childwelfare.
gov/systemwide/laws_policies/statutes/manda.pdf (last visited Nov. 7, 2012). The
reporting requirement, as defined in subsections (a) and (b), focuses on the nature
of the covered professional’s employment activity, not the place where the child
victim is cared for or resides. Indeed, many of the covered professionals—such as
film processors, coroners, and ambulance drivers—would likely learn of suspected
child abuse in circumstances that provide no indication whether the child victim is
cared for or resides on federal lands or in a federal facility.
    The VCAA’s legislative history also reflects a congressional intent to enact a
far-reaching reporting obligation that would protect as many victims of suspected
child abuse as possible. Senator Biden, a co-sponsor of the legislation, called it a
“sweeping title aimed at mak[ing] our criminal justice system more effective in
cracking down on child abusers, and more gentle in dealing with the child abuse
victims.” 136 Cong. Rec. 36,312 (1990); see also id. at 16,240 (statement of Sen.
Biden) (“[Y]ou, the innocent bystander, you, the third party, you have a legal
obligation to report when you observe or have reason to believe that an abuse of
an innocent child takes place.”); id. at 16,238 (statement of co-sponsor Sen. Reid)
(“A critical step in protecting our children is to identify child victims . . . before it
is too late. My proposed bill of rights requires certain professionals to identify who
they suspect are victims of abuse and neglect.”).




                                           8
            Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


   As we recognize above, our interpretation of the statute does not reconcile
perfectly all of the statute’s parts, specifically subsection (a)’s cross-reference to
subsection (d). Read in context, however, we think subsection (d) need not and
should not be construed to limit either the scope of the reporting requirement
under subsection (a) or the Attorney General’s authority to designate agencies to
receive the required reports. Such an interpretation would be in marked tension
with the breadth of subsection (a)’s terms, the requirements of subsections (e) and
(h), the scope of subsection (b), and the general evidence of Congress’s intent.
   The two additional narrowing constructions we identified also fail to make
better sense of the statute than the broad reading we have adopted. We first
considered whether the reporting requirement should be limited to situations
involving children who had been abused on federal lands or facilities. But under
this reading, as under your suggested reading, we would have to conclude that
Congress acted to limit the apparently broad reporting requirement set forth in
subsection (a) through the oblique mechanism of a cross-reference to subsection
(d). What is more, this reading, too, would make it difficult to explain the breadth
of the mandated training and provision of forms on all federal lands and in all
federal facilities in subsections (e) and (h) and the scope of covered professionals
in subsection (b). Further, and significantly, this reading would narrow the class of
children whose suspected abuse could give rise to a required report, despite the
fact that no provision in the statute—including subsection (d)—addresses the
location of the suspected abuse.
   We also considered a third alternative reading—one that would require report-
ing only from covered professionals who engage in the specified professions and
activities on federal lands or in federal facilities where children are cared for or
may have been abused. This construction, too, would rest on a presumption that
Congress intended to limit the scope of the reporting obligation through a single
cross-reference to subsection (d). Further, it would be in particularly sharp tension
with subsections (e) and (h), which require training and distributing reporting
forms on all federal lands and in all federal facilities, not just where children are
cared for or reside. This reading would also produce an anomalous result—a
professional’s obligation to report facts giving reason to suspect that a child
unconnected with federal lands or facilities had been abused would turn on the
apparently unrelated question whether other children happened to be cared for or
reside on the lands or in the facility where the professional works. In our judg-
ment, these difficulties make this interpretation less coherent than the broad
reading we have given the statute.
   We therefore conclude that the best reading of section 13031 as a whole is that
a covered professional is required to report suspected child abuse discovered while




                                          9
                     Opinions of the Office of Legal Counsel in Volume 36


engaged in the professions or occupations specified in subsection (b) on federal
lands or in federal facilities.4

                                                   B.

   We next consider whether “the mere knowledge that a patient has viewed child
pornography [would] trigger a covered professional’s duty to report the suspected
child abuse, even if he or she does not know the identity of the child or children
depicted and has no reason to believe the patient knew their identity.” VA Letter
at 2.5 In raising this question, you point to language in a later part of subsection (d)
providing that, when reports required by subsection (a) are “received by social
services or health care agencies, and involve allegations of sexual abuse, serious
physical injury, or life-threatening neglect of a child, there shall be an immediate
referral of the report to a law enforcement agency with authority to take emergen-
cy action to protect the child.” 42 U.S.C. § 13031(d) (emphasis added). Based on
subsection (d)’s reference to “the” child, you note that, while it is clear that “the
[reporting] requirement applies when the identity of an abused child can be
determined by the covered provider so that the law-enforcement agency with
jurisdiction can be identified, . . . it is less clear . . . that it applies when that is not
the case.” VA Letter at 2.6 We conclude, however, that the text of the statute
covers the situation you describe.

    4
      This interpretation of the reporting requirement is consistent with the law of most States. “All
States, the District of Columbia, [and all U.S. territories] have statutes identifying persons who are
required to report child maltreatment under specific circumstances,” and, in most States, the list of
individuals with reporting obligations closely resembles the list of covered professionals in section
13031. Summary of State Laws at 1-2. In fact, some jurisdictions require all persons, not just certain
professionals, to report suspected child abuse. Id. at 3. Thus, many, if not all, covered professionals
who learn of suspected child abuse on federal lands or in federal facilities would also be required to
report under state laws. Covered professionals should therefore consult relevant state law to ensure that
they are fully informed about the scope of their legal reporting requirements.
    5
      As we have noted, section 13031(b) subjects a wide range of individuals to the reporting duty of
subsection (a), including physicians, pharmacists, school officials, detention facility employees, and
commercial film and photo processors. See supra note 1 (quoting 42 U.S.C. § 13031(b)). Those cov-
ered professionals thus may learn of possible child abuse from a variety of individuals besides those
commonly referred to as “patients.” For simplicity, however, we use the term “patient” as shorthand for
any person from whom a covered professional may learn of potential child abuse.
    6
      Similarly, the Department of Defense states that its relevant policy “does not contemplate that the
statute applies in a situation where the patient merely blurts out that he has an addiction to child
pornography.” Instead, under its policy, reporting would be required in contexts where the patient “is
drawn to a particular child,” “knows the identity or whereabouts of a child depicted in the pornogra-
phy,” “help[s] to produce the pornography,” or in other contexts where “there is an identifiable child or
identifiable children that could be the subject of action by the child protective agency.” E-mail for
Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, from John Casciotti,
Office of General Counsel, Dep’t of Defense (Feb. 26, 2010 5:02 PM). The Department of State “does
not have a formal position or policy addressing whether the reporting requirement is triggered when a
covered professional learns that someone has viewed child pornography, but the professional does not
know the identity of the child or children depicted and has no reason to believe that the viewer knows




                                                  10
                Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


    The text of subsection 13031(a) imposes a reporting duty on a covered profes-
sional “who, while engaged in a professional capacity or activity described in
subsection (b) . . . , learns of facts that give reason to suspect that a child has
suffered an incident of child abuse.” 42 U.S.C. § 13031(a). “[C]hild abuse,” in
turn, is defined as “the physical or mental injury, sexual abuse or exploitation, or
negligent treatment of a child.” Id. § 13031(c)(1). The statute further provides that
“the term ‘sexual abuse’ includes the employment [or] use . . . of a child to engage
in . . . sexual exploitation of children,” and that “the term ‘exploitation’ means
child pornography or child prostitution.” Id. § 13031(c)(4)-(6). Under these defin-
itions, covered professionals must report suspected abuse if they learn of facts
giving reason to suspect that a child “has suffered an incident of [employment or
use to engage in child pornography],”7 or “has suffered an incident of [child
pornography].”
    Although section 13031 does not define the term “child pornography,” it is
defined elsewhere in the U.S. Code as “any visual depiction, . . . whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct,
where—(A) the production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; (B) such visual depiction is . . . of a minor
engaging in sexually explicit conduct; or (C) such visual depiction has been
created, adapted, or modified to appear that an identifiable minor is engaging in
sexually explicit conduct.” 18 U.S.C. § 2256(8) (2006).8 This definition is con-
sistent with dictionary definitions of child pornography. See, e.g., Black’s Law
Dictionary 1279 (9th ed. 2009) (defining “child pornography” as “[m]aterial
depicting a person under the age of 18 engaged in sexual activity”).
    Under these definitions, child pornography is not a specific action or set of
actions, but an end product, a particular kind of visual depiction that is “made or
produced.” 18 U.S.C. § 2256(8). It is thus not entirely clear what it means “to

their identities.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, Office of Legal
Counsel, from Robert Choo, Office of the Legal Adviser, Dep’t of State (July 21, 2010 2:35 PM). It
recognizes, however, that this situation “may trigger other actions including the enforcement of child
pornography laws, if applicable, or internal discipline.” Id.
     7
       The substitution in the text is not completely straightforward, in that the statute defines “exploita-
tion”—without any qualification—to include “child pornography or child prostitution,” but defines
“sexual abuse” to include “rape, molestation, prostitution, or other form[s] of sexual exploitation of
children.” Compare 42 U.S.C. § 13031(c)(6) (definition of “exploitation”) with id. § 13031(c)(4) (def-
inition of “sexual abuse”). We do not think, however, that the statute intends to draw a strong
distinction between “exploitation” and “sexual exploitation.” The latter phrase is not a defined term.
And the statute in other respects seems to treat the two terms as essentially interchangeable. In
particular, the definition of “sexual abuse” expressly provides that “prostitution . . . of children” is a
form of “sexual exploitation of children,” and the definition of “exploitation” similarly provides that
“child prostitution” is a form of “exploitation.” Id. § 13031(c)(4)-(6).
     8
       Other definitions in section 13031, including the definition of “sexually explicit conduct”—a con-
cept closely related to “child pornography,” as the definition quoted above makes clear—track
definitions in the same section (chapter 110) of the criminal code. Compare 42 U.S.C. § 13031(c)(5)
(2006) with 18 U.S.C. § 2256(2) (2006).




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                  Opinions of the Office of Legal Counsel in Volume 36


engage in child pornography,” or for “a child” to have “suffered an incident of”
child pornography. Notably, however, certain other forms of “child abuse” in
section 13031 are also defined as end results rather than actions. “[P]hysical
injury,” for example, is defined to include, among other things, “lacerations,
fractured bones, burns, [and] internal injuries.” 42 U.S.C. § 13031(c)(2). And it is
relatively straightforward to conclude that a child has “suffered an incident of”
lacerations or fractured bones if the child has been subjected to physical abuse that
results in those injuries. We think it is similarly clear that, whatever else the phrase
may include, a person has “engage[d] in child pornography” if that person has
produced or created pornographic images of children, and that “a child has
suffered an incident of” child pornography if that child has been made the subject
of pornographic images. The pornography is “a permanent record” of the abusive
conduct of creating a pornographic image of a child. See New York v. Ferber, 458
U.S. 747, 759 (1982).
   Based on this analysis, we conclude that a covered professional who learns that
a patient under his or her care has viewed child pornography may be aware of
“facts that give reason to suspect that a child”—the subject of the specific
pornographic images viewed by the patient—“has suffered an incident of child
abuse.” 42 U.S.C. § 13031(a).
   We do not believe a covered professional in such a situation is relieved of an
obligation to report such facts simply because he or she does not know or have
reason to know, or have reason to believe a patient knows, the identity of the child
depicted in the pornography. Section 13031(a) and (d) does not require, either
expressly or by implication, that a covered professional (or his or her patient)
know the identity of the child or children abused in order to have a reporting
obligation. We generally “‘resist reading words or elements into a statute that do
not appear on its face.’” Dean v. United States, 556 U.S. 568, 572 (2009) (quoting
Bates v. United States, 522 U.S. 23, 29 (1997)). Moreover, imposing a require-
ment that the victim’s identity be known would be in tension with Congress’s
protective purpose. See, e.g., 136 Cong. Rec. at 36,312 (noting that the statute
would “make [the] criminal justice system more effective in cracking down on
child abusers”).
   Even assuming that the statute’s references to “a child” in section 13031(a) and
(d) limit the reporting requirement to situations involving “a” specific, potentially
identifiable child, that limitation provides no basis for imposing the additional
prerequisites to reporting that the covered professional know or have reason to
believe his or her patient knows the identity of a child depicted in pornography the
patient admits to viewing. Pornography may well involve “a” specific, potentially
identifiable child even if neither covered professionals nor their patients know the
child’s identity. Even if covered professionals (or their patients) do not know the
identity of any children depicted in pornography viewed by a patient, a report may
lead authorities to specific, identifiable children. While some child pornography
may be the work of professionals and therefore difficult to link to specific



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            Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


identifiable children, other such images are homemade recordings, taken in
domestic contexts, of sexually abusive acts “committed against young neighbors
or family members,” and therefore traceable through law enforcement investiga-
tion to a particular child or children. Philip Jenkins, Beyond Tolerance: Child
Pornography on the Internet 82 (2001); see also Richard Wortley & Stephen
Smallbone, Cmty. Oriented Policing Servs., Dep’t of Justice, Problem-Oriented
Guides for Police, Problem-Specific Guides Series No. 41, Child Pornography on
the Internet 9 (2006), available at http://www.cops.usdoj.gov/Publications/
e04062000.pdf (last visited Nov. 7, 2012) (“[M]ore commonly, amateurs make
records of their own sexual abuse exploits, particularly now that electronic
recording devices such as digital cameras and web cams permit individuals to
create high quality, homemade images.”).
    For the same reasons, section 13031(d)’s statement that, in certain circum-
stances, social services or health care agencies must refer reports of suspected
child abuse “to a law enforcement agency with authority to take emergency action
to protect the child,” 42 U.S.C. § 13031(d) (emphasis added), should not be read
to restrict the reporting obligation to situations in which covered professionals
know the identity of the children who are the victims of suspected abuse. This
law-enforcement referral requirement applies not to covered professionals, but to
the “social services or health care agencies” that receive reports of suspected child
abuse. Id. The statute expressly contemplates that the agency receiving the report,
not the covered professional, must ascertain which law enforcement agency is
“authori[zed] to take emergency action to protect the child.” Id. And although the
referral requirement could be read to reflect an assumption that these agencies
generally will know the identity of the child in need of protection, the requirement
also could be satisfied by identifying a law enforcement agency with authority to
initiate an investigation to ascertain the identity and location of the suspected
victim.
    We therefore conclude that the fact that a patient has viewed child pornography
may constitute a “fact[] that give[s] reason to suspect that a child has suffered an
incident of child abuse” under section 13031, and that a covered professional is
not relieved of the obligation to report such a fact simply because the identity of
the injured child is unknown.

                                         C.

   As noted, the VCAA provides for criminal penalties. 18 U.S.C. § 2258. When
interpreting a statute’s civil provision, the violation of which is also subject to
criminal sanction, the rule of lenity may be invoked to resolve ambiguity in the
provision. See Leocal v. Ashcroft, 543 U.S. 1, 11-12 & n.8 (2004); United States v.
Thompson/Center Arms Co., 504 U.S. 505, 517-18 & n.10 (1992) (plurality
opinion). Here, however, we resolved both of the interpretive questions you
presented without employing the rule of lenity, because we concluded that the



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                      Opinions of the Office of Legal Counsel in Volume 36


provisions at issue did not present any “grievous ambiguity or uncertainty” that
could not be addressed by applying ordinary tools of statutory construction.
Muscarello v. United States, 524 U.S. 125, 139 (1998) (internal quotation marks
and citations omitted).
   We recognize, however, that the statutory trigger for the reporting require-
ment—the learning of “facts that give reason to suspect that a child has suffered an
incident of child abuse”—is extremely broad. For example, the statute’s text does
not appear to require either that the suspected abuse have occurred recently or that
there be a direct connection between the facts and a particular perpetrator of or
witness to abuse. Thus, a doctor’s duty to report conceivably could be triggered by
a patient’s revelation that his neighbor confided that he was abused as a child
some decades ago, a patient’s revelation that acquaintances long ago had viewed
child pornography, or a patient’s expression of amazement that he had learned
from the Internet that child abuse or child pornography was far more prevalent
than he had previously believed.9 Because failures to report may be criminally
prosecuted, courts may be concerned about the uncertain breadth of the suspected
abuse that may be subject to section 13031’s reporting requirement, particularly
when combined with the ambiguities discussed in Parts II.A and II.B.
   You have not asked us to define the boundaries of the phrase “facts that give
reason” to suspect child abuse or to discuss the application of 18 U.S.C. § 2258,
but we note that covered professionals who fail to make a report required by the
statute may not always be criminally liable for their failure to do so. Significantly,
although the VCAA’s criminal penalty provision lacks an express mens rea
requirement, courts generally “interpret[] criminal statutes to include broadly
applicable scienter requirements, even where the statute by its terms does not
contain them.” X-Citement Video, Inc., 513 U.S. at 70.10 Courts deciding whether
to impose criminal penalties on a covered professional for failing to file a report
would have to decide (i) whether to construe 18 U.S.C. § 2258 to impose a mens
rea requirement, and (ii) if they do so, what the required mens rea is. And while
for some statutes, courts have required only that a defendant have knowledge of
the “facts that make his conduct illegal,” Staples, 511 U.S. at 605, for others,
courts have required that a defendant know that his or her conduct was “unauthor-
ized or illegal” before criminal liability could be imposed, particularly where


    9
      We do not consider here whether other aspects of the language quoted in the text above, or of
language elsewhere in the statute, might limit its application in some such situations. A court might
also adopt a narrowing construction of the statutory trigger for the reporting requirement to avoid
notice concerns. See Skilling v. United States, 130 S. Ct. 2896, 2931 (2010).
    10
       As the Supreme Court has explained, the presumption that a statute contains a mens rea require-
ment even when that requirement is not explicit in the statutory text is consistent with the rule of lenity.
See Liparota v. United States, 471 U.S. 419, 427-28 (1985). Inferring a mens rea requirement is,
however, a distinct practice from applying the rule of lenity, and the Court has suggested that lenity
principles may not apply in determining the degree of mens rea that is required. See Staples v. United
States, 511 U.S. 600, 619 n.17 (1994).




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            Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031


failure to impose such a requirement would “criminalize a broad range of appar-
ently innocent conduct.” Liparota v. United States, 471 U.S. 419, 426, 434 (1985).
Here, a court concerned about ordinary citizens’ ability to decipher the contours of
the abuse that must be reported, or about the statute’s punishment of a failure to
act rather than an affirmative act, might be inclined to adopt this kind of height-
ened mens rea requirement. See Skilling, 130 S. Ct. at 2927-28 (noting that a
“‘criminal offense’” must be defined “‘with sufficient definiteness that ordinary
people can understand what conduct is prohibited’”) (quoting Kolender v. Lawson,
461 U.S. 352, 357 (1983)); id. at 2933 (noting that a “mens rea requirement” can
help “blunt[] . . . notice concern[s]”); Lambert v. California, 355 U.S. 225, 228
(1957) (holding that due process requires that a person who is “wholly passive and
unaware of any wrongdoing” must have notice of a registration requirement before
she may be held criminally liable).

                                         III.

   In sum, any person who, while engaged in a professional capacity or activity
described in subsection (b) of section 13031 on any federal land or in any federally
operated (or contracted) facility, learns of “facts that give reason to suspect that a
child has suffered any incident of child abuse” must report the suspected abuse to
a designated agency. The fact that a patient has viewed child pornography may
“give reason to suspect that a child has suffered an incident of child abuse” under
the statute, and a covered professional is not relieved of an obligation to report the
possible abuse simply because neither the covered professional nor the patient
knows the identity of the child depicted in the pornography. As described,
however, a covered professional’s failure to file a required report will not neces-
sarily result in criminal liability.

                                                  VIRGINIA A. SEITZ
                                                Assistant Attorney General
                                                 Office of Legal Counsel




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