Chapter Four: Law and Education
All provinces have enacted legislation that requires any adult to report to the police or to child welfare authorities a suspicion that a child is being abused physically, sexually, or emotionally. This legislation is not part of the legislation on schools, and is usually the responsibility of agencies other than schools, most often child-welfare agencies. Because teachers have so much contact with students, they are often the first or the only adults to suspect that a child is being mistreated.
The increasing attention that is being given to child protection is also part of the gradual but important change in our attitudes toward children, which was discussed earlier in this chapter. When dealing with suspected cases of child abuse, there are several legal points for teachers to remember:
- You are required by law to report your suspicion of abuse, even if you do not have any concrete evidence to support your belief.
- You must make a report to the legally stipulated authority, usually the police, or to the child welfare authorities; reporting only to your principal is not sufficient.
- You can be found guilty of a crime if you have knowledge or suspicion of abuse and do not report it to the proper authorities.
- Your identity will not be disclosed to the person who is suspected of committing the abuse.
- You cannot be punished or prosecuted for making a report that proves to be incorrect, as long as you did so in good faith.
The Canadian Child Welfare Research Portal < https://cwrp.ca/policy-legislation> is an excellent website for access to policy and legislative documents relating to child welfare at the federal, provincial, and territorial levels.
A discussion of the legal aspects of child abuse, however, hardly begins to raise all of the other important elements of the matter. For instance, what constitutes a strong enough suspicion to justify reporting a suspected case of abuse? After all, many of the possible symptoms of abuse, especially in regard to emotional abuse or neglect, might be found in most children at one time or another. What if a child does not want to have the abuse reported for fear that the family will be torn apart by an accusation? What if the report is made, but there is not enough evidence to warrant criminal charges? (This is a real concern with child abuse since the sole evidence for the allegation may be the unsubstantiated word of a child, which does not have the same force in a court of law as does the testimony of an adult). What if no charges are laid, but the abusing adult is provoked into greater abuse by the fact that an investigation is being conducted? These are some of the concerns that a teacher must consider in regard to a suspected case of abuse, but they do not negate any of the legal requirements to report.
Particularly troublesome for teachers is the matter of suspected abuse committed by teachers or school administrators. These accusations usually involve alleged sexual abuse, which can mean anything from inappropriate touching of the student to sexual intercourse between a teacher and a student. Because teachers are in a position of trust the accusation is particularly serious. Frequent practice in such cases is to suspend the teacher from duty, or to reassign the teacher to duties that do not involve teaching, until the allegation is resolved. A school board could fire a teacher accused of abuse but not convicted of the offence if the board felt that it had reasonable grounds for believing the teacher was guilty. However, police and Crown attorneys usually do not lay criminal charges of abuse unless they feel they have enough evidence to make a conviction a realistic possibility. At a minimum, teachers convicted of abuse will normally have their teaching certificates revoked, prohibiting them from being teachers, as well as incurring any criminal sentences related to the nature of the charge. The Ontario College of Teachers provides a valuable Professional Advisory document to its members entitled, Professional Misconduct of a Sexual Nature (Ontario College of Teachers, 2019) which outlines “teachers’ responsibilities to govern their conduct according to professional standards, provincial law and the Criminal Code”. As in cases of negligence, a teacher who acts with reasonable care and prudence is unlikely to find himself or herself in difficulty. Hugging or holding primary-age children, or offering emotional support in times of need, for instance, is a common and justifiable practice, recognized as such by the courts. On the other hand, teachers need to be conscious of increasing scrutiny on this matter as media attention and reports such as that of the Truth and Reconciliation Commission (2015) publicly acknowledge that students have been victimized by educators in roles of authority. It should also be noted that codes of professional ethics exclude reporting abuse from the requirement that one first talk to a colleague before making any complaints against him or her ‒ the duty to protect a child is considered more important than the professional duty of confronting a colleague.
As in other matters raised in this chapter, the legal requirements vis-à-vis child protection, while valuable, do not solve the most troubling problems. No set of rules can fully substitute for professional judgment.