The Law
Below is the Arkansas laws regarding child abuse and abuse of vulnerable adults.
Child Abuse and Neglect
Definitions
Physical Abuse - Citation: Ann. Code § 12-18-103
Abuse means:
• Extreme or repeated cruelty to a child
• Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of a bodily organ
• An injury that is at variance with the history given
• Any nonaccidental physical injury
• Any of the following acts with physical injury:
- o Throwing, kicking, burning, biting, or cutting a child
o Striking a child with a closed fist
o Shaking a child
o Striking a child on the face or head
• Any of the following acts with or without physical injury:
- o Striking a child age 6 or younger on the face or head
o Shaking a child age 3 or younger
o Interfering with a child’s breathing
o Pinching, biting, or striking a child in the genital area
o Tying a child to a fixed or heavy object or binding or tying a child’s limbs together
o Giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions
o Giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to, marijuana, alcohol for use other than during a recognized and established religious ceremony, a narcotic, or an over-the-counter drug if a person purposely administers an overdose or an inappropriate drug and the child is detrimentally affected.
• Exposing a child to dangerous chemicals including, but not limited to, a chemical used or generated during the manufacture of methamphetamine
• Subjecting a child to Munchausen syndrome by proxy or a factitious illness by proxy if the incident is confirmed by medical personnel
Neglect – Citation: Ann. Code § 12-18-103
Neglect means failure or refusal to:
• Prevent abuse of the child when the person knows or has reasonable cause to know the child is or has been abused
• Provide necessary food, clothing, shelter, and education required by law, or medical treatment necessary for the child’s well-being
• Take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect or parental unfitness when the existence of the condition was known or should have been known
• Provide for essential and necessary physical, mental, or emotional needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child
• Provide for the child’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care
• Assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility
• Appropriately supervise the child that results in the child being left alone at an inappropriate age or in inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm
Neglect shall also include:
• Causing a child to be born with an illegal substance in the child’s bodily fluids or bodily substances as a result of the pregnant mother knowingly using an illegal substance before the birth of the child
• At the time of the birth of a child, the presence of an illegal substance in the mother’s bodily fluids or bodily substances as a result of the pregnant mother knowingly using an illegal substance before the birth of the child
- o An illegal substance is a drug that is prohibited to be used or possessed without a prescription.
o A test of the child’s or the mother’s bodily fluids or bodily substances may be used as evidence to establish neglect.
Sexual Abuse/Exploitation – Citation: Ann. Code § 12-18-103
Sexual abuse means:
• By a person age 10 or older to a person younger than age 18:
- o Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsiono Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion
o Indecent exposure
o Forcing the watching of pornography or live sexual activity
• By a person age 18 or older to a person not his or her spouse who is younger than age 16:
- o Sexual intercourse, deviate sexual activity, or sexual contact
o Attempted sexual intercourse, deviate sexual activity, or sexual contact
• By a caregiver to a person younger than age 18:
- o Sexual intercourse, deviate sexual activity, or sexual contact
o Attempted sexual intercourse, deviate sexual activity, or sexual contact
o Forcing or encouraging the watching of pornography
o Forcing, permitting, or encouraging the watching of live sexual activityo Forcing the listening to a phone sex line
o An act of voyeurism
• By a person younger than age 10 to a person younger than age 18:
- o Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion
o Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion
Sexual contact means an act of sexual gratification involving:
• Touching, directly or through clothing, the sex organs, buttocks, or anus of a person or the breast of a female
• Encouraging of a child to touch the offender in a sexual manner
• The offender requesting to touch a child in a sexual manner
Sexual exploitation means:
• Allowing, permitting, or encouraging participation or depiction of the child in prostitution, obscene photography, or obscene filming
• Obscenely depicting, posing, or posturing a child for any use or purpose
Emotional Abuse – Citation: Ann. Code § 12-18-103
The term abuse includes acts or omissions that result in injury to a child’s intellectual, emotional, or psychological development, as evidenced by observable and substantial impairment of the child’s ability to function within the child’s normal range of performance and behavior.
Abandonment – Citation: Ann. Code § 12-18-103
Abandonment means:
• Failure of the parent to provide reasonable support and to maintain regular contact with the child through statement or contact, when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future
• Failure to support or maintain regular contact with the child without just cause
• An articulated intent to forgo parental responsibility
Reporting - Citation: Ann. Code § 12-18-402
A report is required when there is reasonable cause to suspect that a child has been subjected to child maltreatment.
Exceptions – Citation: Ann. Code § 12-18-103
Abuse does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child.
Abuse shall not include when a child suffers transient pain or minor temporary marks as the result of an appropriate restraint if:
• The person exercising the restraint is an employee of an agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act.
• The agency has policy and procedures regarding restraints.
• No alternative exists to control the child except for a restraint.
• The child is in danger or hurting himself or herself or others.
• The person exercising the restraint has been trained properly in restraining children, de-escalation, and conflict resolution techniques.
• The restraint is for a reasonable period of time.
• The restraint is in conformity with training and agency policy and procedures.
Reasonable and moderate physical discipline inflicted by a parent or guardian shall not include an act that is likely to cause and that does cause injury more serious than transient pain or minor temporary marks.
The age, size, and condition of the child, the location of the injury, and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate.
It is not considered neglect when the parent’s failure to provide for the child’s needs is due to financial inability, and no services or relief have been offered.
Mandatory Reporters of Child Abuse and Neglect
Professionals Required to Report – Citation: Ann. Code § 12-18-402
The following individuals are mandated reporters:
• Child care, daycare, or foster care workers
• Coroners
• Dentists, dental hygienists
• Domestic abuse advocates and domestic violence shelter employees or volunteers
• Employees of the Department of Human Services
• Employees working under contract for the Division of Youth Services of the Department of Human Services
• Foster parents
• Judges, law enforcement officials, peace officers, and prosecuting attorneys
• Licensed nurses, physicians, mental health professionals, surgeons, resident interns, osteopaths, and medical personnel who may be engaged in the admission, examination, care, or treatment of persons
• School counselors, officials, and teachers
• Social workers and juvenile intake or probation officers
• Court-appointed special advocate program staff members or volunteers
• Attorneys ad litem
• Clergy members
• Employees of a child advocacy center or a child safety center
• Sexual abuse advocates or volunteers who work with victims of sexual abuse as employees of a community-based victim service or mental health agency such as Safe Places, United Family Services, or Centers for Youth and Families
• Rape crisis advocates or volunteers
• Child abuse advocates or volunteers who work with child victims of abuse or maltreatment as employees of a community-based victim service or a mental health agency
• Victim/witness coordinators
• Victim assistance professionals or volunteers
Reporting by Other Persons – Citation: Ann. Code § 12-18-401
Any person who has reasonable cause to suspect child maltreatment may report.
Standards for Making a Report – Citation: Ann. Code § 12-18-402
An individual listed as a mandatory reporter shall immediately notify the Child Abuse Hotline if he or she:
• Has reasonable cause to suspect that a child has been subjected to maltreatment or died as a result of maltreatment
• Observes a child being subjected to conditions or circumstances that would reasonably result in maltreatment
Privileged Communications – Citation: Ann. Code §§ 12-18-402(c); 12-18-803
A privilege or contract shall not prevent a person from reporting child maltreatment when he or she is a mandated reporter and required to report under this section.
No privilege, except that between a lawyer and a client and between a minister, including a Christian Science practitioner, and a person confessing to or being counseled by a minister, shall prevent anyone from testifying concerning child maltreatment.
When a physician, psychologist, psychiatrist, counselor, or therapist conducts interviews with or provides therapy to a subject of a report of suspected child maltreatment for purposes related to child maltreatment, the physician, psychologist, psychiatrist, licensed counselor, or therapist is deemed to be performing services on behalf of the child.
An adult subject of a report of suspected child maltreatment cannot invoke privilege on the child’s behalf.
Vulnerable Adults - ARKANSAS ADULT ABUSE ACT
§ 5-28-101. Definitions.
As used in this chapter, unless the context otherwise requires:
1. “Endangered adult” means:
A. An adult eighteen (18) years of age or older who is found to be in a situation or condition which poses an imminent risk of death or serious bodily harm to that person and who demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition; or
B. A resident eighteen (18) years of age or older of a long-term care facility which is required to be licensed under § 20-10-224 who is found to be in a situation or condition which poses an imminent risk of death or serious bodily harm to such person and who demonstrates the lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;
(2) “Abuse” means:
A. Any intentional and unnecessary physical act which inflicts pain on or causes injury to an endangered or impaired adult, including sexual abuse; or
B. Any intentional or demeaning act which subjects an endangered or impaired adult to ridicule or psychological injury in a manner likely to provoke fear or alarm; or
(3) “Neglect” means:
A. Negligently failing to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or impaired adult;
B. Negligently failing to report health problems or changes in health problems or changes in the health condition of an endangered or impaired adult to the appropriate medical personnel; or
C. Negligently failing to carry out a prescribed treatment plan;
(4) “Exploitation” means the illegal use or management of an endangered or impaired adult’s funds, assets, or property, or the use of an endangered or impaired adult’s power of attorney or guardianship or person for the profit or advantage of himself or another;
(5) “Caregiver” means a related or unrelated person, owner, agent, high managerial agent of a public or private organization, or a public or private organization that has the responsibility for the protection, care, or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court;
(6)(A) “Physical injury” means the impairment of physical condition or the infliction of substantial pain.
(B) Where the person is an endangered or impaired adult there shall be a presumption that any physical abuse resulted in the infliction of substantial pain;
(7) “Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ;
(8)(A) “Imminent danger to health or safety” means a situation in which death or severe bodily injury could reasonably be expected to occur without intervention.
(B) The burden of proof shall be upon the department to show by clear and convincing evidence that such imminent danger exists;
(9)(A) “Protective services” means services to protect the endangered adult from himself and others.
(B) Protective services shall include, but not be limited to, evaluation of the need for services, arrangements for appropriate services, assistance in obtaining financial benefits to which the person is entitled, or securing medical and legal services.
(C) In situations where exploitation, prevention of injury, and protection of the person and his property are at issue, protective services shall include seeking the appointment of a guardian or seeking protective custody;
(10)(A) “Department” means the Department of Human Services.
(B) The director of the department may assign responsibilities for administering the various duties imposed upon the department under this chapter to respective divisions of the department which, in his opinion, are best able to render service or administer the provisions of this chapter; and
(11) “Impaired adult” means an adult eighteen (18) years or older who suffers from mental or physical disease or defect and as a consequence thereof is unable to protect himself from abuse, neglect, or exploitation.
(12) “Sexual abuse” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined in § 5-14-101, with another person who is not the actor’s spouse and who is incapable of consent because he or she is mentally defective, mentally incapacitated, or physically helpless, as those terms are defined in § 5-14-101.
§ 5-28-105. Spiritual treatment alone not abusive.
Nothing in this chapter shall be construed to imply that a reported endangered or impaired adult, who is being furnished with treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner thereof, is for this reason alone an endangered, abused, neglected, maltreated, or exploited person.
§ 5-28-203. Persons required to report abuse.
(a)(1) Whenever any physician, surgeon, coroner, dentist, osteopath, resident intern, registered nurse, hospital personnel who are engaged in the administration, examination, care, or treatment of persons, social worker, case manager, case worker, mental health professional, peace officer, law enforcement officer, facility administrator, employee in a facility, or employee of the Department of Human Services has reasonable cause to suspect that an adult has been subjected to conditions or circumstances which would reasonably result in abuse, neglect, or exploitation, as defined in this chapter, he shall immediately report or cause a report to be made in accordance with the provisions of this section.
(2) Whenever a person is required to report under this chapter in his capacity as a member of the staff, an employee in a facility, or an employee of the Department of Human Services, he shall immediately notify the person in charge of the institution, facility, or agency, or his designated agent, who shall then become responsible for making a report or cause a report to be made.
(3) In addition to those persons and officials required to report suspected adult abuse, sexual abuse, or neglect, any other person may make a report if the person has reasonable cause to suspect that an adult has been abused, neglected, or exploited, as defined in this chapter.