When news hit last month that Memorial University was being held civilly liable for mistakenly fingering a student as a child abuser, I reflected on the confused approach our law has taken to a citizen's obligation to report crime.
In general, our system of law is steeped in a rich heritage of indifference and selfishness. British common law does not impose any legal obligation to rescue a stranger from peril. An able-bodied swimmer can stumble upon a drowning child and simply pull up a lounge chair and watch the show.
There are some obligations among defined family members, and some placed upon people in positions of care and contractual relations. But not only has the common law never recognized a general duty to rescue; it places very few obligations on ordinary people to report serious crimes.
Perhaps rescuing may be a bit too heroic to be a matter of legal obligation, but reporting a crime is usually no more heroic than getting off your ass to make a phone call. Why should modern policing have to rely on paying a pittance for anonymous crime-stopper tips? Our law should recognize a legally enforceable duty to prevent and report serious crime if one can do so without peril or risk of harm.
Child abuse is an exception to the legal norm of indifference. In recent years, the secret and sinister nature of child abuse compelled all provincial governments to impose legal obligations to report signs of abuse to the authorities. To encourage reporting, the statutory schemes provide immunity from legal liability for raising a false alarm if there is reasonable cause to make a report.
I believe the obligation to report is morally sound, but I have concerns about whether people will be able to decipher the signs of abuse or the law will be a breeding ground for well-intentioned but dangerous busybodies.
Not only are the warning signs of abuse not self-evident in many cases, but there are also lots of overly cautious people who will yell fire at the first sign of smoke. Even the intellectually mighty can make egregious mistakes in acting upon the duty to report. Having a high IQ or mastering the musings of Heidegger does not guarantee sound judgment.
Last month the Supreme Court of Canada upheld an award of over $800,000 in damages to the student at Memorial U. in Newfoundland. Wanda Young submitted a term paper on juvenile sex offenders and included in an appendix an unnamed woman's first-person account of sexually abusing children in her care and of being abused as a child. The student neglected to include a footnoted reference to the text from which the account was taken, and her prof jumped to the conclusion that the appendix was an autobiographical cry for help.
Like an insidious game of broken telephone, this professor's suspicions were communicated to the RCMP and numerous social workers. Various professors provided the authorities with Young's supposed confession without disclosing that it was an appendix to a term paper. No one took the opportunity to raise the issue with the student. Her professor never even asked if there might be a missing footnote or reference for the disturbing appendix.
Wanda Young's name was placed on the provincial Child Abuse Registry without her knowledge. She was red-flagged in the police and social work communities. Her dreams of becoming a social worker came to a halt. She was refused admission to the social work program and left the university to work in Quebec.
Two years after the initial report of child abuse had been made, officials from Child Protection Services finally started an investigation. They immediately concluded that the two-year-old report of abuse was a mistake.
The Supreme Court found the university liable for negligence in breaching a duty of care owed to its students. Despite the legal obligation to report signs of child abuse, the university lost its statutory immunity for making an unfounded complaint because there had been no reasonable cause to make a report. Believing that the term paper contained a personal confession of guilt was pure conjecture, and failing to address the issue with the student was cowardly or just plain stupid.
But this case is not just about the shortcomings of the educated class in responding to a complex social problem. Since they know that suspicions of child abuse are often based on ill-defined hunches, it is deeply disturbing that state officials put someone's name on a Child Abuse Registry without her knowledge and without a prompt investigation.
In compiling any sort of registry, whether for child abusers, sex offenders, gun collectors or no-fly undesirables, state officials should have their own legal duty to notify people and give them an opportunity to defend themselves before red-flagging them.
Reporting a suspicion of child abuse loses some of its moral force when one knows that officials carelessly branded Wanda Young a registered abuser without even checking a footnote.
Alan Young is a professor of law at Osgoode Hall. His column appears every other week.