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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Time and time again, there seems to be much confusion with regard to whether an MFT must, or is even permitted to, report consensual sexual activity involving minors. Learn when it is mandatory to report consensual sexual activity.
Originally published January/February 2007 by Catherine Atkins, JD Deputy Executive Director The Therapist Updated 2023
Time and time again, there seems to be much confusion regarding whether an MFT must, or is even permitted to, report consensual sexual activity involving minors under the Child Abuse and Neglect Reporting Act (CANRA). The information below only applies to consensual sexual activity- not incest1, date rape, or any situation in which the minor did not fully consent to the sexual activity. Nonconsensual sexual activity involving minors and incest involving minors (even when voluntary) always requires a mandated report2. Mandated reporters should also note that if a minor is legally married, consensual sexual activity between the minor and their spouse is not reportable, regardless of their ages.
Below is a chart that identifies various ages of minors, particular sexual activities, and whether a therapist’s reasonable suspicion that minors of certain ages are engaged in those activities would require the therapist to make a mandated report (“M.R.”)3:
"Child" refers to a minor involved in sexual activity with another person.
A. Child younger than 14 years old
1. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration[4], or other lewd or lascivious acts in which the child’s partner is younger than 14-years-old and of a similar age, and there are no indications of abuse or exploitation.
See Planned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal. App. 3d 245 (1986); See also, In re Jerry M. 59 Cal. App. 4th 289.
The Planned Parenthood court held that consensual sexual activity between minors under 14 who are of similar ages is not reportable if there is no indication of abuse.
Additionally, per AB 1145, sexual assault does not include voluntary conduct in violation of sodomy, oral copulation, or sexual penetration laws if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.
2. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts in which the child’s partner is younger than 14-years-old, but: 1) the child and their partner are not of similar ages; or 2) there are indications of abuse or exploitation.tc.
See Planned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal. App. 3d 245 (1986).
3. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner 14-years-old or older.
AB 1145 does not change the reporting obligations for “lewd or lascivious acts upon a child.” Mandated reporters acting within their professional capacities are still expected to report their reasonable suspicions of lewd or lascivious acts with or upon minors as sexual assault even if those lewd or lascivious acts involve voluntary sodomy, oral copulation, or sexual penetration.
For purposes of this category, “lewd or lascivious acts upon a child” occur when a person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.
1. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner younger than 14.
AB 1145 does not change the reporting obligations for “lewd or lascivious acts upon a child” where the child is younger than 14.
2. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner older than 14, but younger than 21 years of age, and there are no indications of abuse or exploitation.
CANRA provides that sexual acts in violation of Penal Code Section 261.5(d) require mandated reports. Penal Code Section 261.5(d) prohibits sexual intercourse between minors who are under 16 and adults who are 21 years of age or older.
3. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner older than 14, but younger than 21 years of age, and there are indications of abuse or exploitation.
Sexual abuse and exploitation are always reportable, under CANRA.
4. Sexual intercourse and/or voluntary sodomy, oral copulation, or sexual penetration with a partner 21 years of age or older.
See box #B2 above.
5. Lewd or lascivious acts committed by a partner ten or more years older than the child.
For purposes of this category, “lewd or lascivious acts upon a child” occur when a person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child if the person is ten or more years older than the child and the child is 14 or 15-years-old.
C. Child 16 or 17 years old
2. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner 14 years old or older and there are no indications of abuse or exploitation.
Per AB 1145, sexual assault does not include voluntary conduct in violation of sodomy, oral copulation, or sexual penetration laws if there are no indicators of abuse, unless the conduct is between a person 21 years of age or older and a minor who is under 16 years of age.
3. Sexual intercourse and/or voluntary sodomy, oral copulation, sexual penetration, or other lewd or lascivious acts with a partner 14 years old or older and there are indications of abuse or exploitation.
Sodomy, Oral Copulation, and Sexual Penetration of a Child
The Child Abuse and Neglect Reporting Act requires a mandated reporter to make a report whenever the mandated reporter, while operating in their professional capacity, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Child abuse for these purposes includes instances of “sexual assault,” an abuse reporting category that includes, among other things, the crimes of sodomy, oral copulation, and sexual penetration5.
Effective January 1, 2021, Assembly Bill 1145 provides that the definition of “sexual assault” for child abuse reporting purposes does not include voluntary sodomy, oral copulation, or sexual penetration, if there are no indicators of abuse, unless that conduct is between a person who is 21 years of age or older and a minor who is under 16 years of age. AB 1145 does not change the reporting obligations for “lewd or lascivious acts upon a child.” This means it is still reportable as “sexual assault” if the mandated reporter has reasonable suspicion or knowledge that a person (regardless of age) willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child if: 1) the child is under the age of 14; or 2) the child is 14 or 15-years-old and the perpetrator is ten or more years older than the child. However, the court has held consensual sexual activity between minors under 14 who are of similar ages is not reportable if there is no indication of abuse.[6] For more information regarding this distinction, See “Minors, Mandated Reporting, and Consensual Sexual Activity: What’s Changed and What’s Remained the Same?” by CAMFT staff attorney Bradley Muldrow, JD (in the January/February 2023 edition of The Therapist).
This information is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
[1] Penal Code Section 285 defines the crime of incest as “[p]ersons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.” [2] See Penal Code §11165.1(a); Penal Code §285; and Family Code, §2200. [3] This consensual sexual activities reporting table was adapted from the Child Abuse Prevention Council of Santa Clara County’s Child Abuse Reporting Guidelines table found at https://capc.sccgov.org/home . [4] Per Penal Code Section 289(k)(1), for purposes of child abuse reporting, the term “sexual penetration” refers to “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” (Empasis added) [5] Id. [6] See Planned Parenthood Affiliates of California v. John K. Van De Kamp (1986) 181 Cal. App. 3d 245 (1986)