C H A P T E R
16
Legal Aspects of Child Abuse and Neglect |
Law is merely
the expression of the will of the strongest for the time being, and
therefore laws have no fixity, but shift from generation to generation. |
Brook Adams:
“The Law of Civilization and Decay” |
It has taken the last
twenty years for people to understand the mixed problems of child abuse and
neglect. This awareness and knowledge has increased the ability to intervene
in the lives of troubled families, and has come about through education on
child abuse and neglect and how it can be prevented.
What is this new education? We have learned that a child of any age, sex,
race, religion and socioeconomic background can be a victim of child abuse
and neglect. We know that many children are abused and neglected and that
this is often not reported to the authorities. It should be the concern of
everyone, and it takes a multidisciplined effort to prevent this occurence
and to treat it.
The American Humane Association, founded in 1877, added a Child’s Division
in 1885. However, people were not interested in child abuse then, and it was
not prestigious for professionals to be inquisitive about the problem.
But in 1954 an energetic young man by the name of Vincent De Francis was
appointed director of Child’s Division, and things began to change. He
initiated a survey on the existence and extent of services for abused,
neglected and exploited children. De Francis was interested not only
publishing the results of the protective services survey, but in encouraging
groups of national agencies to deal with this problem by meeting regularly.
These meetings generated interest in lawyers who specialized in children’s
rights, and in 1967 the Supreme Court extended to children a Bill of Rights
protection. Members of Congress were educated to the necessity of providing
for the needs of all children.
In 1960 and 1961, child abuse moved from being researched and talked about
to being acted upon. It did not become a popular subject until physicians
became aware of it and chose to do something about it. The medical
profession acknowledged the problem of child abuse and provided protective
services in every county and city in the United States. When the Children’s
Bureau devoted more attention to the problem of child protective services,
other groups joined the activists.
The Battered Child Syndrome
In 1962, these individuals wrote an article entitled “The Battered Child
Syndrome”:
•
Dr. C. Henry Kempe – Pediatrician
• Dr. Henry K. Silver – Pediatrician
• Dr. William Droegemueller – Gynecologist
• Dr. Brandy F. Steele – Psychiatrist
• Dr. Fred N. Silverman – Radiologist |
This article was
published in the Journal of the American Medical Association and was the
first recognition of child abuse and neglect as a frequent cause of
permanent injury or death. Dr. Kempe and his associates conducted a survey
that confirmed the observation that child abuse could cause death.
The Battered Child Syndrome is described as a “clinical condition” in young
children who have received serious physical abuse repeatedly over a period
of time, generally from a parent or caretaker. An example cited in the
survey concerned a young man who had brought a child with massive injuries
to an emergency unit. The child died within a few hours after delivery to
the hospital. The young man admitted he had hit the child many times during
the holidays.
The parent-abuser is often described as being of low intelligence and
exhibiting psychotic behavior, and who tend to be immature, self-centered,
impulsive, short-tempered and quick to react. The repercussions of abuse are
not thought out by the abuser.
Five years after “The Battered Child Syndrome” was published and regarded as
having established an important connection in child abuse, forty-eight
states had adopted laws requiring certain people to report abuse and
suspected abuse to child protection services or law enforcement agencies.
The purpose of reporting abuse to professional agencies is to protect the
child’s welfare, and all actions are taken to prevent the repetition of
injury to the child. Authorities must be satisfied that no harm will come to
the child if returned to the environment in which the abuse was originally
suspected.
Authorities have prepared a list of symptoms of abuse and neglect that all
abuse prevention agencies have available to them. The indicators on the list
may vary from place to place, and all indicators do not prove neglect or
abuse.
Physical Abuse and Neglect
|
Physical Indicators |
Behavioral Indicators |
Bruises or injuries in different |
Failure to thrive |
stage of healing |
Inappropriate social behavior |
Burns from a cigarette, ropes |
Aggressive or afraid |
or irons |
Runs away from/fears going home |
No explanation for abrasions, |
Accident-prone |
injuries, on mouth, arms, legs |
Short attention span |
or body |
Complains of soreness |
Teeth missing |
Inappropriate clothing |
Human bites |
Attempts suicide |
Missing hair |
Poor learning skills |
|
|
Sexual Abuse |
|
Poor physical action |
Aggressive/regressive behavior |
Scarred, lacerated, swollen |
Nightmare |
penis or vagina |
Attempts suicide |
Venereal disease |
Runaway |
Pregnancy |
Dramatic change in school |
Urinary infection/pain during |
Depression |
urination |
Inappropriate sexual knowledge |
Swollen anal area |
|
|
|
Neglect Abuse |
|
Poor growth pattern |
Slow development |
Malnutrition/hunger |
Inappropriate dressing |
Listlessness |
Hyperactivity/delinquency |
Lack of supervision |
Exhibits infantile behavior |
Unsafe environment |
Depression |
Unbathed |
Frequent school absences |
Unsanitary home |
Seeks attention |
Neglect health issues |
Always hungry |
Unexplained injuries |
Begs for food |
Neglect of physical attention |
Frequent absence from school |
Inappropriate clothing |
Chronically late |
Cultural deprivation |
Inadequate sleeping arrangements |
|
No washing facilities |
|
|
Emotional Maltreatment |
|
Poor appearance |
Head banging/rocking |
Poor development |
Behavior extremes |
Health problems |
Sleep disorders |
Compulsive |
Learning problems |
Poor performance at school |
Vandalism |
Impulsive |
Unrestrained in play |
Poor speech skills |
Destructive behavior |
Unable to control urine |
Suicide ideation |
Whatever the rules for reporting for in state in which you live, every
person has the moral duty to protect an endangered child.
How is Child Abuse and Neglect Defined?
The Child Abuse Prevention and Mistreatment Act defines child abuse and
neglect as the physical or mental injury, sexual abuse or exploitation,
negligent treatment or maltreatment:
•
of a person under the age of eighteen, unless child protection laws of
the state in which the child resides
specifies a younger age.
• performed by a person who is responsible for the child’s
welfare.
• under circumstances which indicate that the child’s health or
welfare is harmed or threatened. |
The Act defines
sexual abuse as:
•
the use, employment, persuasion, enticement or coercion of any child to
engage in any sexually explicit
conduct for the purpose of producing any
visual depiction of such conduct.
• rape, molestation, prostitution, or other form of sexual
exploitation of children, or incest with a child. |
As a result of the
Child Abuse Amendments of 1984, also included as child is abuse the
witholding of medically indicated treatment for an infant’s life-threatening
conditions. The Act defines this provision as “...the failure to respond to
the infant’s life-threatening conditions by providing treatment (including
appropriate nutrition, hydration and medication) which, in the treating
physician’s or physician’s reasonable medical judgment, will be most likely
to be effective in ameliorating or correcting all such conditions...”
Physical abuse is characterized as inflicting physical injury by punching,
beating, kicking, biting, burning or otherwise harming a child. Child
neglect is characterized by failure to provide the child’s basic needs.
Neglect can be physical, educational or emotional, and the latest national
incidence study defines three types of neglect as follows:
Physical neglect includes refusal of or delay in seeking health care,
abandonment, expulsion from home or not allowing a runaway to return home,
and inadequate supervision.
Educational neglect includes permission of chronic truancy, failure to
enroll a child mandatory school age, and inattention to a special
educational need.
Emotional neglect includes such actions as chronic or extreme spouse abuse
in the child’s presence, permission of drug or alcohol use by the child, and
refusal of or failure to provide needed psychological care.
It is very important to distinguish between willful neglect and a parent’s
or caretaker’s failure to provide necessities of life because of poverty or
cultural norms. For example, willful neglect is likely to trigger Child
Protective Service’s intervention. A parent who is unable to provide the
necessities of life due to poverty may, instead, seek assistance from the
governmental bodies charged with providing financial assistance, health
services, housing or basic services.
Sexual abuse includes fondling a child’s genitals, intercourse, incest,
rape, exhibitionism, sodomy and sexual exploitation. To be considered child
abuse these acts have to be committed by a person responsible for the care
of a child. If a stranger commits these acts, it would be considered sexual
assault and handled solely by the police and criminal courts.
Mental injury is a form of child abuse and neglect that includes acts or
omissions by the parents or others persons responsible for the care of the
child that has caused or could cause serious behavioral. cognitive,
emotional or mental disorders. In some cases of emotional/psychological
abuse the acts of the parents or other caretakers alone, without any harm
evident in the child’s behavior or condition, are sufficient to warrant
Child Protective Service’s intervention.
For example, parents/caretakers use extreme or bizarre forms of punishment,
such as torture or confinement of a child in a dark closet. For less severe
acts–such as habitual scapegoating, belittling, or rejecting
treatment–demonstrable harm to the child often requires Child Protective
Service’s intervention.
The Children’s Bureau
In 1912, Congress established the Children’s Bureau, an organization created
to foster child development in the United States. The Bureau focused on
registering infant births in order to promote children’s health, encourage
mandatory school attendance and enforce child labor laws.
As a result of an amendment in 1960 to the Social Security Act, the
Children’s Bureau was able to maintain its committment to the problems of
children. It was given increased funding and was enabling further
advancement of child welfare. Furthermore, at that time the media helped the
cause of child welfare by focusing attention the problem of abuse and
neglect. The Saturday Evening Post wrote an article entitled “Parents Who
Beat Their Children.” This article emphasized the increase in child abuse by
declaring, “there is a new disease in our nation.”
Child abuse had its own journal, Child Abuse and Neglect, and Dr. C. Henry
Kempe was on the editorial board. The public finally became interested in
this phenomenon, and the seriousness of the problem was illuminated for all
to know.
Congress
It took ten years after these events for the passage of national legislation
concerning child abuse and neglect. Congress debated about what their role
should be in relation to this issue, and in 1969 the first child abuse
reporting law was introduced. The law was debated and many agreed that each
state should have the same laws, but nothing was done until 1973 when
Senator Walter F. Mondale of Minnesota sponsored a bill called the Child
Abuse Prevention and Treatment Act, which was enacted in January, 1974. Each
state has its own reporting procedures, but were uniform in the need to
report.
In 1977, child pornography was the new issue and was added into the Sexual
Exploitation Act of 1978.
Congress passed the Missing Children’s Assistance Act in 1984. The Office of
Juvenile Justice and Delinquency Prevention funded a study to determine the
annual number of missing children. These data provided the most complete and
accurate estimate of how many numbers of children were missing in the
country.
Each year in the United States there are approximately two to three million
children who run away or disappear. Parental abduction, once nonexistent, is
rising all the time.
The Office of Juvenile Justice and Delinquency Prevention found that most of
these children were:
•
abducted by strangers
• abducted by family
• runaways
• lost/injured children
• children banned from their home |
The Missing
Children’s Act of 1982 required merely the entry of the name of the child
who had been missing for over 48 hours to be placed on a national
information system with the FBI. The speed of placing the child on this list
was increased with the passage of the 1984 Act to expedite this process, and
this new policy can play a crucial part for authorities to return a child
that is taken from his home by a stranger.
Runaways
Runaways were once considered to be a prank of every child while growing up.
Young teenaged boys would leave home before the age of 18 to “seek their
fortune,” that is, those who were adventurous. “I’ll run away” was the first
thought of a child when he perceived he was being treated unfairly, and many
adolescents wanted to “see the world.”
It was thought that a child was lucky when he worked in the family business
and wanted to live at home. This may not have always been the case, as the
child might have been forced into this position and may have had other
interests and ideas. A child may run away for many reasons and not
necessarily because of abuse or resentment of parental discipline. The child
may just not like the parent’s unpredictable behavior, and he may feel
strong enough to want to change things.
Those interested in the subject note that the escape the teenager desires is
not for mature reasons. It is possible that he feels life at home to be
intolerable and merely wants to change his situation.
Sharon: “My mother was a single parent who always seemed to attract the
wrong men. A couple of these men were sexually abusive towards me, and the
last time it happened, I was fourteen years old.” |
A child in this kind of situation feels his parent is the enemy, and the
only alternative he has is to leave home, as he feels no control over his
environment. The child may move in with a neighbor or friend, or he may want
to put many miles between himself and the problem. Most runaways are
inexperienced and run away to a large city, where they look for
companionship and friendship in a place where they easily become victim to
street gangs, drug pushers and experienced criminals.
Life in a large city, for a runaway child without money or skills, may leave
him ripe for a new process of abuse. The child may easily become desperate
for money or affection and be involved in prostitution or the well-organized
pornography industry. Pornography is a multimillion-dollar business and
children are often exploited by pedophiles luring them with the promise of
money.
Family difficulties that cause a child to leave home are not usually simple
problems. There may be a serious problem of physical and sexual abuse in the
home. Professional help will be needed to assess the family’s ability to
understand the problem or to express concern about the trouble. If the
family is rigid in its social rules, it is difficult to resolve these
problems.
Changes needed to prevent children running away:
•
problems of runaways and homeless youth brought to public forum
• runaways and their families reunited and encouraged to seek
counseling to resolve family problems
• family relationships strengthened
• help sought from professionals
• children encouraged to make clearer decisions
• better communication encouraged between parents and children |
Newsweek
magazine
wrote an article about a runaway hot line which united children with their
families entitled “Can I Come Home?”
Chronic runaways may not really wish to change their patterns. Many runaways
may return home and leave again and again as a response to the abuse they
receive at the hands of parents or guardians. Some runaways find a safe
haven–in places such as a shelter or halfway house–by themselves or are
brought there by the police. Many youths run away from their shelters
despite the risk of living on the street.
Children’s Rights
In 1960 state and federal governments established that minors have rights
that are protected by the Constitution and can thus be legally protected.
These rights are expressed in different terms, in various states, but all
are close in meaning. All children have the right to:
•
basic needs
• protection
• treatment for medical problems
• education
• nurturing and stable environment
• be a parent when it is in their best interest |
These rights are now
guaranteed by the Constitution.
Megan’s Law
In July 29, 1993, a man named Jesse Timmendequas invited seven year-old
Megan Kanka into his house to see his puppy. There Megan was allegedly
sexually assaulted and strangled by Timmendequas, a twice-convicted sex
offender, who was sharing the house with two other such felons. The stunned
people of Hamilton, New Jersey, were surprised that these men lived in their
neighborhood.
Megan’s Law was passed to guarantee that a neighborhood be made aware of a
felon in their midst. School officials are also alerted.
Critics of the law say that these men have paid their debt to society and
should not be stigmatized for past misdeeds, and that it violates a
constitutionally guaranteed right-to-privacy, as well as the right to due
process of law. On the other hand, 60 percent of psychiatrically untreated
pedophiles repeat their crimes, and placing them within certain communities
may endanger the lives or welfare of children. Children must be protected
but not at the cost of individual rights.
Milk Cartons
Walter Woodbury, a Chicago dairyman, was the first person to put the
photograph of a missing child on a milk carton in 1985. One week after the
milk carton appeared, a 13 year-old girl returned home after having run away
two months before. Since that time, millions of pictures have appeared and
thousands of runaways have been returned home.
Corporal Punishment
In 1988, Cincinnati abolished corporal punishment in public schools but
maintained mandatory suspension for fighting, forgery, cheating and
profanity.
In the school years 1991 and 1992, more than ten thousand students were
suspended, 20 percent of the total enrollment. Most parents complained that
the new policies increased the discipline gap. Then last fall the district
changed course again to a more progressive code, offering more options for
teachers and administrators short of suspension, including in-school
detention. Corporal punishment is still not disallowed, but teachers remark,
“The school children are more aggressive now.”
Some people say, “I was beaten when I was a kid, and it didn’t hurt me.”
Such people are apt to use the same kind of treatment on their own children
that they experienced as a child. Those who learn a different way to deal
with their children’s behavior change their attitude.
Corporal punishment was repealed in the United States in 1986. Children of
school age are at the most vulnerable and impressionable period of their
lives, and it is wholly unreasonable that the safeguard and sanctity of
their bodies should be given over to just anyone. One young mother said,
“They are my children. I don’t let them be with anyone. I’m very careful.”
The United States is one of the last developed countries to ban corporal
punishment in schools. People who encourages the use of corporal punishment
with children in their care could never be able to eliminate child abuse in
their classrooms.
Missing Children
Correct estimates on the number of missing children vary extensively. It is
hard to determine the correct number of abducted children, runaways, and
homeless children. Some estimates suggest that several hundred thousand
children are missing each year. In 1983, the U.S. Department of Health and
Human Services put the number at 1.5 million children a year.
Recommendations of the U.S. Attorney General Advisory Board on missing
children:
• |
Reports of
missing children should be investigated promptly and pursued vigorously.
Law enforcement agencies should review their policies regarding the
investigation of missing child reports. Sometimes the delay makes a
difference in the outcome. |
• |
All states should
adopt laws that require parents, guardians and schools to promptly
report missing children. These laws also should require that law
enforcement agencies report disappearances to the FBI’s National Crime
Information Center (NCIC). Schools must be encouraged to report cases of
missing children. The school should also report habitual absence. Only
eighteen states now require both mandatory reporting of missing children
and entry of these cases into NCIC. |
• |
States should
develop clearing houses to assist families and children who are
separated. |
• |
Congress should
amend the Juvenile Justice and Delinquency Prevention Act to ensure that
each state juvenile justice system has the legal authority, where
necessary and appropriate, to take into custody and safely control
runaway and homeless children. Prohibitions against commingling such
children with adults and adjudicated delinquents should be retained. |
• |
State laws should
be amended to require law enforcement agencies to locate and protect
runaway children, taking them into custody whenever necessary. Juvenile
courts should be given authority to detain such children pending
appropriate placement when they are at risk. |
• |
The federal
government, through the Department of Justice, should make fiscal and
technical assistance available to local law enforcement and juvenile
justice agencies so that training and workable procedural guidelines can
be established. |
• |
Schools should be
responsible for both transferring and receiving student records from old
schools to new schools so that concealing missing children will be more
difficult. Birth records should be included in the transfer. |
• |
Privacy and
confidentiality laws should be modified to allow appropriate persons
access to critical information. The police, courts, welfare departments
and schools need to cooperate in thoroughly investigating cases of
missing children. |
• |
Crimes of child
abuse and exploitation should be promptly investigated and vigorously
prosecuted. |
• |
Judicial
sentences should reflect a concern for the continuing health and safety
of the child victim, his or her family, and other potential victims. |
• |
Certain types of
family abductions should be made felonies instead of misdemeanors in
order to facilitate interstate extradition. |
• |
State statutes of
limitations on prosecutions of child sexual abuse crimes should be
extended. |
• |
The vital
interests of the child victim and his family should be presented and
protected during criminal proceedings by a friend, guardian or
court-appointed special advocate. |
• |
Model federal and
state legislation and court rules should be developed to ensure that the
child victim is not further victimized by the justice system. |
• |
Constitutionally
valid means of eliciting testimony of children, while protecting them
from further psychological damage, should be devel- oped. |
• |
Public awareness
programs should be reviewed both to ensure that children, parents,
teachers and other adults learn ways to identify and prevent child
abuse, exploitation and abduction. |
• |
Training
incentives and assistances should be offered child serving professionals
and personnel in local criminal and juvenile justice systems. |
• |
Workable
guidelines for dealing with cases of missing children should be adopted
in every community. |
• |
States should
mandate careful screening of people who work with children. Police
checks for previous convictions of crimes against children should always
be made. |
• |
A study should be
conducted both to examine the extent of current federal involvement in
the discovery and return of missing and abducted children and to suggest
appropriate modifications. Special emphasis should be placed on
examining methods to provide assistance to state and local authorities
that lack resources to extradite abductor-parents. |
• |
The potential of
combining the criminal case with the dependent (ne- glected or abused
child) should be explored in an effort to resolve the case more quickly
and efficiently. |
• |
Investing in the
family court adult criminal jurisdiction as to crimes against children
should be explored. |
• |
A study should be
conducted to probe the relationship between the exploitation and
victimization of children and violent and sexually explicit facets of
the popular culture such as art, rock music and lyrics, and video games. |
• |
The President
should appoint a permanent commission on families and government. Its
tasks should include: |
• |
an in-depth study
of the impact of all legislation and agency regulations upon the
families of America. |
• |
making
recommendations to government on issues of policy affecting families. |
• |
continued
monitoring and public reporting about government activi- ties affecting
the family. |
• |
developing and
publishing a comprehensive family and children’s policy for the
government. |
How far are we
working toward these recommendations? Public opinion goes a long way toward
making changes, and people can no longer remain passive while their children
are being victimized by life on the streets. Society must assist families in
those instances where the necessary support systems for building a strong
family do not exist.
Throwaway Children
Many children do not leave home voluntarily. They are abandoned, forced from
their homes by parents or legal guardians, or allowed to come and go as
freely as they wish, leaving for days or weeks at a time.
Some parents abandon the child for a variety of reasons. Many think the
child is the cause of all their problems, or they may have lost interest in
raising the child. They may also admit or fabricate that they never wanted
children in the first place, say that they no longer want to be responsible
for the child, or that they don’t want to deal with the trouble of a child.
These parents tell police who have found their children that they don’t want
them back.
As with runaways, throwaway children are prime candidates for petty crimes,
drug abuse and prostitution. Both boys and girls are likely to survive as
prostitutes and participate in pornographic pictures and films.
Family Abduction
Children who are victims of family abduction amy be properly cared for, but
they are deprived of contact with other loved ones and often suffer much
pain and suffering.
“Every person, not having right of custody, who maliciously seeks to detain,
conceal or entice a minor child shall be punished by imprisonment in the
state prison.”
People v. Irwin, 1984
A divorced father took his minor daughter to the Virgin Islands shortly
before the end of an agreed visitation period. Not having lawful charge of
his daughter, he was convicted of kidnapping and the child returned to the
mother.
People v. Morton, 1990
The intent to detain and conceal the child may be inferred from the fact
that the defendant made false statements to the child and took the child to
another city. |
“Oprah Bill” Passed
The National Child Protection Act of 1993, signed into law by President
Clinton in December of that year, established procedures for national
criminal background checks for child care providers. Known as the “Oprah
Bill” due to the interest of Oprah Winfrey in the issue, the Act will
establish a national database of persons indicted and convicted of child
abuse crimes, sexual offenses, violent crimes and drug felonies.
The legislation requires states to report child abuse crime information to
the national system. Child care organizations and other youth-serving
agencies will be encouraged to access the national criminal background check
system to screen out potential employees or volunteers who have criminal
records.
Funds
The National Center on Child Abuse and Neglect (NCCAN) announced the
availability of funds and requested applications for the Fiscal Year 1994
Discretionary Funds program. The following priority areas were:
•
Field initiated research
• Graduate research and medical fellowships
• Risk assessment systems |
Demonstration or
Service Programs
•
Use of volunteers
• Inter-agency prevention of maltreatment of children with
disabilities
• Joint training on identification, intervention and treatment of
mal treated children with disabilities
• Training on child fatality review teams |
Intervention
Intervention occurs when a child is endangered because of neglect from an
adult. If a child is in danger because of poor housing, the state can
intervene to move the family to a better apartment or to fix the apartment,
but the state may not intervene to remove the child.
Coercive intervention is authorized when a child is suffering, or there is
evidence of anxiety, depression or withdrawal. Intervention can occur if the
parents are not willing to provide treatment for the child. Children may
need crisis intervention if the disclosure has just occurred, investigative
agencies have just become involved and a medical examination is required.
The trauma of disclosure should not be underestimated, even if the abuse has
been taking place over a period of time or occurred long ago. The assessment
should include the need for crisis intervention, brief therapy, or long-term
therapy to resolve the victim’s issues.
Now is the Future
Now is the time to take action. Children who have been abused or neglected
have missed their childhood and have been robbed of their heritage. Adults
who are in charge of these young lives need to be held responsible for their
actions and not take their frustrations out on young bodies. Children need
not live a life of violence.
Summary
Why child abuse and neglect occurs is a subject being continually
researched.
Some children who are abused are never reported to the authorities.
People were not interested in child abuse until it was brought to the
awareness of professionals.
When the Children’s Bureau devoted more attention to the problem, then other
groups joined the activists.
Dr. C. Henry Kempe and his associates described “The Battered Child
Syndrome” as a “clinical condition” in young children who have received
serious physical abuse over time.
A list of indicators that describes the symptoms of a child who has been
abused or neglected is available to all agencies, although it may vary from
state to state.
Child neglect is characterized by failure to provide a child with basic
needs.
Physical abuse is characterized by inflicting physical injury by punching,
beating, kicking, biting, burning or otherwise harming a child.
Physical neglect includes refusal of or delay in seeking health care,
abandonment, inadequate supervision, expulsion from home or not allowing a
runaway to return home.
Congress works slowly to create new changes, and this affects passage of
child abuse legislation.
In 1974 the Child Abuse Prevention and Treatment Act was made public law,
and all states were required to report child abuse or neglect.
In 1960 state and federal governments acknowledged that children have
Constitutional rights.
The policy of corporal punishment in schools was repealed in 1986.
|