Report to the Congress on the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators. CONCLUSIONS

09/01/2012

It is appealing to think that, with better information about child maltreatment perpetrators, future maltreatment can be prevented and children can be protected from harm. It is this hope that led Congress to include in the 2006 Adam Walsh Child Protection and Safety Act a provision directing HHS to establish a national registry of child maltreatment perpetrators and to study the feasibility of such a registry. However, the Congress should carefully consider whether the information available through a national registry would successfully produce the hoped-for safety benefits. We caution that even with the best implementation efforts, there is considerable risk that many states would not participate, substantially decreasing the potential utility of such a national database.

Though the Congress has not, to date, appropriated funds for the development or implementation of such a registry, HHS has completed this feasibility study examining the issues related to creating and maintaining an electronic database made up of information on child maltreatment perpetrators from states' substantiated child maltreatment investigations. This report fulfills directives in the reports accompanying HHS appropriations for Fiscal Years 2008 and 2009 to use funds appropriated for other child abuse prevention activities to conduct this feasibility study. Our feasibility study involved efforts to understand the state databases that could be combined to create a national registry of child maltreatment perpetrators and to estimate the number of persons included in multiple states' databases in order to better understand what added information a national registry could bring to child abuse prevention efforts and thus begin to assess the extent to which such information might be used to prevent harm to children.

This report to the Congress and the associated research study on the feasibility of a national registry of child maltreatment perpetrators has explored a variety of issues regarding what it would take to produce a functional registry. As a result of this research and discussions with a variety of interested parties, we have determined that a functional registry cannot be implemented under the current statutory language in the Adam Walsh Act. Even if the principal statutory problem were addressed, however, barriers to states' participation could result in a database with large gaps in coverage. In addition, a national registry could provide relatively limited information that is not already gleaned from existing single state registries and criminal history checks. Thus the safety benefits to be gained from a national registry of child maltreatment perpetrators would seem to be limited.

As required in the Adam Walsh Act, in this report to the Congress we have discussed the costs and benefits of a national registry, the data elements contained in states' registries, and the data on perpetrators that could be incorporated into a national registry. Note that the statute requires us also to assess registries maintained by Indian tribes. Despite inquiry, we have not identified any Indian tribes that maintain child abuse registries, though we determined that registries in 14 states incorporate data submitted by either some or all the Indian tribes located in the state. Several Indian tribes that initially self-identified as having child abuse registries were subsequently found to have public sex offender registries instead and did not, in fact, maintain a registry of child maltreatment perpetrators (the two are often confused).

Below we draw conclusions regarding the establishment of a national registry of child maltreatment perpetrators, including our thoughts regarding the due process issues the Adam Walsh Act required us to address.

  • Current statutory limits to the information that could be contained in a national registry would prevent the accurate identification of child maltreatment perpetrators.

The Adam Walsh Act limits the identifying information about perpetrators that could be included in a registry to their name. Because many names are common, this limitation would cause a registry to produce very high rates of inaccurate, false positive matches. That is, the vast majority of all matches produced by a registry would falsely identify an individual as a child abuser because there is someone else in the database with the same or a similar name. More accurate matches would require additional identifying information regarding perpetrators. For instance, including perpetrators' sex and date of birth would significantly decrease the rate of false positive matches. In addition, most states, though not all, also have information on the Social Security numbers of perpetrators, the inclusion of which could further improve the accuracy of a national registry. However, even with this additional information, an indeterminate number of false positive identifications will still occur.

  • Under current law, the predominant use of a national registry would be for employment background checks not explicitly mentioned in the statute.

Congressional debate about a national registry of child maltreatment perpetrators centered on the use of such a registry during child maltreatment investigations. While employment background checks are never mentioned in the law, as currently authorized we expect such inquiries to be the predominant use of a national registry. In states that use their existing registries for employment background checks, those inquiries far outnumber requests for information to be used in child abuse investigations. Resolving questions about the accuracy of match results produced by employment inquires could divert state staff resources and attention from the investigatory functions that a registry was promoted as improving.

  • If a national registry would be used for employment background checks, due process requirements for a national registry will need to be stronger than those in place in a number of states.

Given the wide variations in state practice regarding existing due process protections for individuals entered into state child maltreatment registries, there are serious, legitimate concerns about using a national registry of child maltreatment perpetrators for conducting employment background checks. The Adam Walsh Act requires that this report discuss the due process requirements that would be necessary for a national registry. As is described more fully in the research volume that accompanies this report, there is considerable case law, in some respects conflicting, regarding the Constitutionally-required due process protections that are necessary for state child abuse registries that are used for employment background checks and that would therefore be required of a national registry intended to perform such a function. In addition, this is currently an area of active subject of litigation and legislation. Since our 2009 interim report, at least 7 states have seen legislative or court consideration of due process issues regarding their state child abuse registries.

Federal requirements would need to be designed if a registry were actually implemented, taking into account the pertinent case law at the time of implementation. But as we suggested in our Interim Report to the Congress, we believe the only practical way to handle due process issues for a federal registry would be to establish minimum standards that a state would need to certify as having been met in the particular case before a name is added to the national registry. It would be extremely impractical for the Federal Government to put in place additional protections that had not been provided at the state level at the time of the state's original determination of an individual's status as a child maltreatment perpetrator.

Our current thinking is that minimum standards for due process in a national registry that is to be used for employment-related inquiries would include: (1) that the substantiation decision used a legal standard at least as strong as preponderance of the evidence (that is, that it is more likely than not that the maltreatment occurred and that the individual designated as the perpetrator was responsible); (2) that the perpetrator had the opportunity to challenge his or her designation as a perpetrator and that any challenge was resolved in a timely fashion; and (3) that the perpetrator was notified of his or her inclusion on the state's registry of maltreatment perpetrators and informed about the implications of their inclusion. While each of these protections is current practice in more than half of states, some states would need to make changes in their current investigation and/or registry practices before it could place perpetrators' names in a national registry.

  • A national registry of child maltreatment perpetrators would provide limited information for child maltreatment investigations that goes beyond what is already available from existing single state registries.

Our study found no evidence of a widespread phenomenon of child maltreatment perpetrators who offend in multiple states. Our prevalence study revealed that 1.5 percent of persons identified as child maltreatment perpetrators in 2009 (an estimated 7,852 individuals) had any substantiated maltreatment incidents in another state within the preceding five years. The vast majority of those who did have an incident in another state had a single additional substantiation in a single additional state, most often for neglect. Exceedingly few had multiple incidents that would suggest a pattern of predatory behavior. In the 22 States that participated in our study there were 345 individuals who had more than two matches and just 44 individuals who had a substantiated child maltreatment investigation in more than one other state. In addition, just one half of one percent of child maltreatment deaths in states participating in the study was attributed to a perpetrator who had a substantiated maltreatment report in another state (4 in total). In contrast, states' existing child maltreatment registries typically report repeated substantiated maltreatment incidents (within the same state and over a similar five-year time period) in roughly 17 percent of cases and there were over one thousand child deaths in study states that were attributed to perpetrators who did not have substantiated maltreatment investigations in other states.

  • A lack of participation in a voluntary registry system could prevent a registry from fulfilling its intent.

The best designed database of information about perpetrators will not be helpful for child maltreatment investigations if states do not populate it with information on perpetrators. There are numerous issues that may inhibit states' participation in a national registry. Chief among these is states' costs to participate. This includes the technology costs of establishing secure systems with which to exchange information with a federal registry, working with the Federal Government around issues of establishing systems to verify the identities of legitimate users of the registry, and, potentially, altering their investigation and appeals procedures to conform to federal due process standards.

Encouraging state participation could take several forms. In particular, states would be much more likely to participate in a federal registry if the Federal Government provides funding to help cover implementation costs. Alternatively, funds for related federally funded programs could be conditioned on participation in a national registry. However, should states choose to forgo such other funding, an attempt to leverage participation could undermine rather than bolster states' child protection activities.

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