<em>This is an excerpt from Laura Hazen’s article, <a href="http://www.irelandstapleton.com/news/wp-content/uploads/2013/01/Preventing-and-Responding-to-Allegations-of-Abuse.pdf">Preventing and Responding to Allegations of Abuse and Neglect Against Early Childhood Educators</a>.  Click <a href="http://www.irelandstapleton.com/news/wp-content/uploads/2013/01/Preventing-and-Responding-to-Allegations-of-Abuse.pdf">here</a> to download a complete copy of this article.</em>

<strong>RESPONDING TO A CRIMINAL ALLEGATION </strong>

Prevention measures require compliance with mandatory reporting laws.  If a report is acted upon and an investigation results, a criminal investigation may be conducted.

The criminal process starts by assessing any injury to the child.  If necessary, the child will be removed from any unsafe circumstance.  Then, other agencies are notified as appropriate and an investigation is conducted.  The steps you take to respond to an allegation depend, in large part, on who delivers the news.

In Colorado, there are several statutory definitions of child abuse and neglect.<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftn1">[1]</a>  Different statutes apply in different circumstances and investigations.<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftn2">[2]</a>  Because of this, an individual could be found liable for child abuse in a civil case or a county proceeding, while the same individual is found not guilty in a criminal case.<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftn3">[3]</a>

As outlined here by criminal attorney Dana Casper, when you are notified that the conduct <em>may</em> be considered criminal, the first and most important step is to seek criminal counsel.  While speaking to the police may seem like a cooperative, helpful step in the process, a casual response, intended to be helpful, can create more issues than it resolves.  Consider this scenario:

A teacher has just been told that there is an allegation that he had inappropriate contact with four-year-old student.  The teacher is provided with few details.  He may not even be informed of the complaining child's name.  A detective contacts him and asks if him if he would be willing to come in and answer a few questions.  He has done nothing wrong and has nothing to hide, so he agrees.

During the interview, the detective tells him little about the allegation. The detective asks what the policy is regarding taking a child to use the restroom.  The detective asks him to think about what he could have done which could have been misinterpreted as inappropriate.  The detective asks if it's possible that he accidentally had some sort of contact with the child which was inappropriate.  Initially, the teacher states, "No, I don't think so."  The detective presses him.  "Are you sure?  There's nothing you did that could have been misinterpreted or could have been an accident?"

In an effort to seem cooperative, the teacher begins offering possible explanations.  For example, the teacher says the child did have a "potty accident" and the teacher tried to help her change her clothes and clean herself up.  The teacher suggests that in an effort to make the child more comfortable and cheer her up, the teacher tickled the child.  Maybe the child thought he touched her in an inappropriate way?

While the detective seems to be giving the teacher an out by suggesting that perhaps the child misinterpreted an action, in reality the detective has just obtained an admission that there was, in fact, physical contact.  This seemingly innocent contact can then be turned around and used against the teacher during an investigation and criminal proceeding.

With this in mind, the safest thing to do whenever a criminal investigation is possible is to immediately retain criminal counsel.  When speaking to criminal attorney Dana Casper about the criminal process, her number one recommendation to accused, alleged perpetrators of abuse and neglect is to hire an attorney quickly and to decline interviews until the advice of counsel is obtained.  "Submitting to an interview is almost never beneficial to the accused.  Interview/interrogation techniques employed are designed to elicit incriminating responses.  Incriminating responses can vary from an inconsistent statement, a seemingly innocent explanation of how conduct could have been misinterpreted, and hesitation in one's answer.   Any statement, no matter how innocent, can be misconstrued, particularly when the accused is unaware of the specifics of the allegation.  Additionally, a criminal attorney can act as a buffer between the employer and the investigator."

<strong>CIVIL SUITS &amp; CLAIMS
</strong>This advice remains the same, even if the action brought against you is civil: act immediately and retain counsel.  Enough cannot be said about the importance of speedy action in these situations.  Every minute that passes could create avoidable liability.  Civil suits have a lower standard of proof than do criminal matters.  In civil cases, typically a "preponderance of the evidence" (meaning, in essence, 51 percent of the evidence presented) standard or level of proof replaces the "beyond a reasonable doubt" standard.  This means a civil claim is easier to prove than a criminal one.  The rationale is that in a criminal suit the accused's liberty – his or her ability to walk around, outside of a jail – is at issue, instead of just monetary penalties or other damages.

A civil suit would likely involve claims including, for example, harassment, assault and battery, loss of consortium,<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftn4">[4]</a> and/or negligent or intentional infliction of emotional distress.  Although, as a general rule, individuals in Colorado are allowed to defend themselves without counsel ("<em>pro se</em>"), it is still recommended that you immediately contact a qualified attorney.

Companies in Colorado, in contrast to individuals, may not defend themselves, and must hire an attorney to represent them in court.<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftn5">[5]</a>

<strong>PRIVATE INVESTIGATORS &amp; EXPERT WITNESSES
</strong>Civil claims rely heavily on the testimony of therapists, psychologist and other expert witnesses to prove certain elements such as intent or the extent of emotional damage.  To refute this expert testimony, you must take steps to ensure that the evidence presented in any hearing, mediation or trial is accurate and, as much as possible, to your benefit.  A civil attorney will help you respond to the allegations, file court pleadings and documents in a lawsuit and conduct any necessary evidence gathering or investigation.  For example, a given situation may require an independent investigation, participating in a polygraph exam or self-reporting to one agency or another.  Additionally, you may want legal advice regarding what role to play in any investigation conducted by your employer or partners.

A victim would likely offer the testimony of a psychological expert to testify about emotional distress.  Though you have very little control over what a psychiatrist hired by an alleged victim would say about a victim's emotional state, you want to be sure that you gather your own witnesses and preserve their testimony in a helpful way.  Because experts feel, at times, more approachable, this is one area in which accused individuals sometimes resort to "self help."  The documents in an expert witness' file are "discoverable" in a civil proceeding – they may be disclosed to the other side.  If you take it upon yourself to contact expert witnesses, without the help of counsel, your emails may fall into that category of documents and could end up in front of the other side and as exhibits at trial.  Emails sent in the first blush of panic, sent to someone who you hope will help you, could contain unintended admissions and statements that, later, you might wish you could take back.

At times, private investigators can be used to gather information that will be used to contradict evidence that would be offered to support a claim of emotional distress.  For example, say a psychiatrist testifies to support a parent's loss of consortium claim, supporting the position that the parent or the child suffered emotional distress such that the parent is unable to enjoy his or her child's company.  A private investigator's testimony that he trailed and observed the family at the movies and a picnic might change a jury's view of the psychiatrist's testimony and the ultimate award of any damages for emotional distress.
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<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftnref1">[1]</a> Child care licensing regulation, Sec. 7.701.22(B), “For the purposes of all child care licensing rules, the terms 'child battering', 'child abuse', 'child molesting', and 'child neglect' are terms to be considered within the definition of abuse set forth in Section 19-1-103,C.R.S., unless otherwise indicated.” <em>Eff 08/01/2007</em>

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<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftnref2">[2]</a> See, for example, the Colorado Children's Code, Title 19 of the Colorado Revised Statutes § 19-1-103 (defining "abuse"), § 19-3-102 (defining "neglect or dependent" child); the Colorado Human Service Code, Title 26 of the Colorado Revised Statutes, § 26-3.1-102 (defining "mistreatment," "abuse," "neglect" and exploitation"); and the Colorado Criminal Code, Title 18 of the Colorado Revised Statutes, § 18-6-401 (defining "abuse"), § 18-3-208 (defining "reckless endangerment"), § 18-3-405 (defining "sexual assault on a child"), § 18-3-405.5 (defining "sexual assault on a child by one in a position of trust"), § 18-6-403 (defining "sexual exploitation of a child").  Also consider the definition of "unlawful sexual behavior" in the Colorado Criminal Proceedings Code, § 16-22-102(9), which also defines sexual assault, enticement and exploitation, among other terms.

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<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftnref3">[3]</a> For a general overview of the issues of child abuse and neglect facing professionals and paraprofessionals in Colorado, see the "Child Abuse and Neglect:  An Introductory Manual for Professionals and Paraprofessionals," authored by The Colorado Department of Public Health and Environment and The Colorado Children's Trust Fund, available at www.cdphe.state.co.us/ps/cctf.

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<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftnref4">[4]</a>  While many think of a loss of consortium claim as a claim brought by a spouse for loss of sexual enjoyment as a result of an injury, it is also a claim that a parent could bring, to recover damages incurred when a parent is no longer able to enjoy his or her relationship with a child because of, say, a physical or emotional injury.

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<a title="" href="file:///C:NRPortblDMS1JELJA1337963_1.docx#_ftnref5">[5]</a>  <em>Woodford Mfg. Co. v. A.O.Q., Inc.</em>, 772 P.2d 652, 653 (Colo. Ct. App. 1988), citing Colorado Revised Statute §§ 13-6-407, 13-1-127.

<em>Notice: Ireland Stapleton Pryor and Pascoe, PC is pleased to provide you with this information.  This information is provided for your general reference, and is not intended to be, and should not be relied upon as legal advice, or as a substitute for the advice of qualified legal counsel.  As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel.  This information is not intended to create any legal relationship between our firm or any attorney and the user. </em>

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