Criminal Background Checks

The volunteers for Children Act, an amendment to the National Child Protection Act of 1993, was signed into law by President Clinton on October 9, 1998. The act gives "qualified entities" the ability to request fingerprint-based national criminal history background checks of volunteers and employees.

Prior to this law, in all but a few states, organizations could order only local and state checks. Thus, if an applicant was convicted for molesting children in another state, the local check wouldn’t show those charges.

This law allows organizations to run an applicant’s fingerprints through a national database. While this is an important development in legislation protecting children, inconsistencies in implementation among states exist. Therefore, ACA will be following this issue closely to better understand its practical application.

Defining Qualified Entity

A "qualified entity" is an business or organization that provides care, treatment, education, training, instruction, supervision, or recreation for children, the elderly, or individuals with disabilities, whether public, private, for-profit, nonprofit, or voluntary. The purpose of this criminal history check is to determine if a prospective or current employee or volunteer has been convicted of a crime that affects their fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.

Representative Mark Foley (R-FL) was the original sponsor of the bill, which as included in the larger Crime Identification Technology Act of 1998. The law authorizes a $1.25 billion, five-year technology grant program for states to help local law enforcement agencies share electronic information in national crime databases and improve their crime laboratories.

Federal Law Is Voluntary

Because the federal law is voluntary, state police agencies can decide whether or not they want to conduct the checks, and children’s organizations can decide whether or not they want to pursue them. The voluntary nature of the law leads to inconsistencies in states’ use of the law. According to Jody Gorran, founder and operations director of the National Foundation to Prevent Child Sexual Abuse, Alabama, Texas and Maine appear to be moving the slowest in implementing the law.

Requesting Fingerprint Checks

To request fingerprint-based national criminal history background checks of volunteers and employees, a qualified entity should contact their state law enforcement agency. Employers will send fingerprints and other employee information to their state law enforcement identification bureau, which will in turn contact the FBI. No group or organization can request a check unless a set of fingerprints is obtained from the employee or volunteer, and the employee or volunteer must also sign a statement that includes specific information.

Through the state law enforcement agency, the organization will receive
a statement detailing whether
or not the individual in question has been convicted of a crime
that bears upon their suitability
to provide care.
"Rap sheets" are not released.

Inkless fingerprint kits are available from organizations such as the National Foundation to Prevent Child Sexual Abuse. Through the state law enforcement agency, the organization will receive a statement detailing whether or not the individual in question has been convicted of a crime that bears upon their suitability to provide care. "Rap sheets" are not released.

Volunteer organizations must pay a fee to state and federal agencies to access the information. The combined cost is $40 to $50 for each volunteer applicant. The crime bill’s grants will help law enforcement agencies purchase scanners that can instantly transmit fingerprint data to be compared with state and national records. With better equipment, the results will be returned more quickly.

Assessing Liability

A group, like a youth service organization, cannot be liable for damages solely for failure to conduct a background check. However, for many legal reasons, it should be noted that the effect of this provision may be limited. If a volunteer or employee of an organization sexually molests a child in his/her care, and if it can be shown that the individual had been previously convicted somewhere in the United States of a relevant crime, the organization may be held liable under the legal theory of negligent hiring.

ACA recognizes this is a significant issue for camps. We are working toward a consistent application of the law across the country. We believe uniform enforcement among all of the states and quick and consistent results are essential for this to be an effective method of protecting children.

 

Originally published in the 2000 Fall issue of The CampLine.
 

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