NORTH LITTLE ROCK, Ark. -- Lawmakers will tell you that the laws currently on the books are aimed at protecting children from adult predators. But professionals tasked with wading through the web of laws will tell you it can be difficult to determine when a child is actually a child and when they're able to give consent to sex, even if the relationship is the kind that parents and other adults wouldn't approve of at the outset.
One High-Profile Example of Confusion & Consent Laws
Forty-four year old Erica Suskie's day in court for allegedly having a sexual relationship with a 16-year-old appeared to hinge on one fact: she was a substitute teacher at the teen's school.
That detail was something the teen's therapist was not aware of when the 16-year-old disclosed the relationship in August 2015. The boy's father relayed as much to investigators in an interview, according to transcripts and audio recordings in the investigative file. We're not identifying the therapist, because he was never investigated or charged with failure to report. We're not identifying the parents, because it would inadvertently identify the alleged minor victim.
"So [the therapist] goes, 'Had I known she was a substitute, I would've reported it'," the boy's father told investigators of his conversation with the therapist. "But he said 'he [the teen] said she didn't work ... So he was 16, so I figured by my reading of it, that on its face wasn't illegal so I had no obligation to go forward.'"
And by the law, and other professionals' interpretations of it for us -- including law enforcement and attorneys -- there would be nothing clearly criminal about it. The teen's father acknowledged that uncertainty saying, "I wasn't thinking criminal either, because I was thinking the whole time that this sucks because [he] was 16. But after we met with [the therapist], that's when it hit me, I was like, 'Well, she subs over there,' and that puts her in a position of authority."
According to investigative records, the relationship went unreported to law enforcement until the school's principal caught wind of a rumor about inappropriate texts that October. Even then, the principal was unclear if the law required reporting the relationship.
"We talked to [the principal] the first time," the teen's father told investigators. "He said there was a rumor and that he needed to know if we could confirm or deny. I told him at that point we hadn't met with our attorney."
According to the interview with the teen's parents, the principal pointed out that he was a mandated reporter, which the boy's father acknowledged.
"He told us, 'If y'all don't tell me anything, I'm gonna have to put her name out there. If you don't tell me it's not true,'" the boy's father relayed. "I told him to report what the rumor was, but I couldn't confirm or deny anything, because we hadn't talked to an attorney. But I told him to report what he had heard."
What the Laws Spell Out: A Web of Requirements
The basic law is that even though 16- and 17-year-olds are considered children (under 18), at 16 years old an Arkansas teen can consent to have sex. A 15-year-old can also consent to have sex with someone who is no more than 3 years older or younger than him or her. The same goes for younger teens, though with more variations. Easy enough right?
But then the law varies even more when you start dealing with younger adolescents, adults in authority, caregivers, sexting or soliciting sex, sending graphic images, and indecent exposure. Once you start adding in the variations, the law can become a web of what is or isn't allowed -- and that isn't always clear.
"It definitely creates confusion, the real problem I'm trying to address is that it creates a hole in the law," said State Representative Clarke Tucker, in regard to variations and gaps in the law.
Tucker has filed a bill to close one loophole in the sexual crime and age laws that have created problems for prosecutors. Those laws made it illegal for, say, a 19-year-old to solicit a teen for sex, while making it legal for them to actually have sex, given a certain age span.
"[Prosecutors] have had to tell parents of a young lady that if only the guy who she had a sexual relationship with had solicited the relationship -- we would be able to prosecute," Tucker said. "It created a hole in the law that likely wasn't intended, because these laws were passed at different times."
Prosecutors are apparently not the only ones who deal with the struggle of determining what the law allows, especially when you review the Suskie investigation file, which required law enforcement, principals and mental health providers to try and determine if the relationship was actually illegal. Ultimately, because of her position as a substitute, she was charged with sexual assault.
We know of numerous cases where adults are charged with sexually assaulting teens, even 16- and 17-year-olds, but it's only reportable when they reach that age if the alleged offender is a caregiver (under the Child Maltreatment protocol), in a position of trust or authority (the Criminal Statutes), or uses force or coercion (which is always against the law, regardless of age range of the victim).
The law assumes, then, that these teens who are barred because of immaturity from voting, enlisting in the military, or buying cigarettes and alcohol are mature enough to decide to have sex with even a much older adult.
"My understanding is that 16 is pretty uniform across the country for age of consent," Tucker said. "As a general matter -- I would imagine most people would be surprised that 16 is the age of consent, but at the same time, to change that would likely require changes in a large portion of the criminal code and possibly even on the federal level."
Mandated Reporters: Who are They? What Should Concern You? When do You Report?
Dr. Karen Farst is a pediatrician on the At-Risk Children's team at Arkansas Children's Hospital. Despite her years of experience talking with teens about their adult-like relationships, deciphering whether those teens are in danger can be challenging.
Regarding who is required to report, Farst said, the state of Arkansas has a fairly explicit and lengthy list. You can find that list here.
According to Dr. Farst, deciding when something has to be reported isn't a simple task, and it can take years of experience learning what the abuse hotline considers for investigation, what it screens out, and why.
"It can get very confusing regarding which relationships are okay...and which should be reported," Farst said. "The adolescent doesn't always perceive themselves as a victim in those situations, even though they are. And sometimes, they can even be opposed to the idea of reporting, because they assume we're trying to get someone in trouble, when really our concern is protecting them."
In cases involving 16- and 17-year-olds, Dr. Farst said healthcare professionals and other mandated reporters have to try and learn about the nature of the relationship by asking the right questions to know if a child is a victim or a consenting participant.
"Does the person [who is over 18] have authority over them? Is there anything that has been coercion or manipulation that the adolescent may not even recognize?" Farst said. "Many times these teens are not at a place, maturity-wise, to recognize the risks the relationship can have, and sometimes it's our job to try and tease that out, and talk to them about what this relationship really means."
"There were kids that, yeah, absolutely didn't see their relationship as something as a problem or dangerous," said Jennifer Patterson, Social Work Family Services Manager at Arkansas Children's Hospital.
Just like the therapist in the Suskie case, professionals have to rely on what the teens are willing to tell them and what they observe to decide if something sinister is afoot.
"In the case that a person says they're 16 and the partner is their 25-year-old neighbor, I would not refer that to the hotline, because I would be having to take their word for it. I can't go out and figure out if it's their neighbor or not," Patterson said. "But, if later, the parent came in and disclosed to us that it wasn't a neighbor, but an uncle, then that would change how I had to look at the relationship."
In most cases, Patterson said, where the issue is weighing on a teen's mind enough to disclose it, the care team would refer the teen to counseling to try and deal with the underlying issues and learn more about how the relationship is affecting the teen involved.
Other times, they would make a call to the hotline, where those trained in the ins and outs of the law can offer guidance on whether something is reportable or whether it would be screened out.
The decision to call is not always an easy one, Patterson said, because the therapist has to weigh issues of confidentiality and the impact the notification will have on the therapist's relationship with the patient. Patterson noted that therapists and other reporters often have to make the tough call regardless of those considerations if they believe a child is in danger.
"I think sometimes kids can fall through the cracks because individuals don't understand the law," Patterson said. "I think it's a topic where unless you're working in a hospital or a center, they don't have a lot of practice with that. These aren't rules that are just easy to rattle off the top of your head. It took me a lot of experience and calls to the hotline to have a firm grasp of what should or shouldn't be reported."
Ultimately, if a mandated reporter has doubts, it might be better to go ahead and make the tough call to the abuse hotline.
"The last thing you want to do is think that everything is okay and fail to report something that isn't," Dr. Farst said. "Sometimes, that might mean that the hotline staff tell you that it will be screened out as not-reportable. And that's okay. They're the ones who have the most knowledge of what is or isn't reportable under the law."
Both Patterson and Farst said that mandated reporters should not take it upon themselves to try to investigate but leave that to authorities in law enforcement or the child abuse hotline.
In the Suskie case, mandated reporters eventually called the hotline multiple times, according to the interviews with the teens parents in the file, and those reporters were tasked with obtaining more details before investigators got involved.
Suskie maintained she never had a sexual relationship with the teen. She did plead guilty to misdemeanor indecent exposure and landed on the sex offender and child maltreatment registries, according to court documents.
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