Assessing the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators: Research Report. 5.4 LEGAL CONCERNS

09/01/2012

A barrier to participation in a national registry may be the required changes in State legislation. One-quarter of States (27.8%) indicated that changes in legislation would be required before they could provide data to a national registry, and an additional 44.4 percent indicated that they might need to consider legislative changes before submitting data to a national registry. The national registry will be restricted to a defined set of users and purposes, though the precise boundaries are not yet known. If it is allowed to be used for employment checks as well as child abuse and neglect investigations, the range and number of uses may be quite large. States that currently do not allow their own registries to be used for certain types of employment checks, and there are many, would have to decide whether to seek the necessary legislative changes to allow for the intended uses by the national registry. They may also decide simply not to participate. To reduce the chance of non-participation by such States, the national registry may need to consider restricting the use by certain classes of users on a State by State basis, denying access to records from States that do not allow their own records to be used for a particular purpose.

In the Interim Report, it was indicated that, if a national child abuse registry were established, due process concerns would need to be addressed by the States and States would need to certify that they had followed minimum due process protections. Given the variation in due process procedures that are utilized by States, and the differences in rulings in various courts, a minimum standard of due process may need to be promulgated by the Federal Government. States would need to determine whether they could meet this minimum standard. For a number of States this would likely require a change in legislation and practice. Existing records in State data repositories that did not meet this minimum standard could probably not be submitted to the national registry. There also could be additional cost concerns related to such changes.

In addition to promulgating minimum standards of due process, it may be useful to consider establishing a model law to assist States with developing and passing the necessary legislation to minimize exposure to legal challenge. Further research and/or policy discussion may result in a conclusion that only a subset of perpetrators should be included in a national registry. For example, it could be argued that a national registry should include only those who have been found to be perpetrators under reasonably high levels of evidence, and for which certain standards of due process have been met. If this were the case, States would face far less exposure to legal challenges and may be more willing to participate if their own practices met such standards. The advantage of thinking of a national registry in this manner is that it may also encourage the field to become more consistent in its practices and policies concerning the designation of who is a perpetrator. States would not be prohibited from contacting other States as they do now, if they so wished.

It is not clear how long revisions to current State laws would take, but the concern that a State might need to pass new legislation could significantly delay full implementation. As previously mentioned, the full value of such a registry would be achieved only with participation of at least a majority of States.

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