Previous   Next

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.

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 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.

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 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.

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.