C H A P T E R
17
Child Abuse and the Court of Law
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Too much
sensibility creates unhappiness:
Too much insensibility leads to crime. |
Many reports of child
abuse are never investigated as crimes, or indicted and prosecuted as crimes
in a court of law. They are handled by child protective services, and there
the prosecution is handled in a different manner. Defense attorneys do not
want to work on child abuse cases, as the proceedings are difficult and
highly emotionally trying for all involved. In cases that affect very young
children, someone else may have to determine the child’s feelings, which no
one can tell for certain, and speak for the child. Therapists worry about
the damage prosecution of a child abuse case or a civil lawsuit can do to a
child. The abuse case will permanently change the lives of the children, as
well as of the accusers and the accused, and all wonder whether the process
is worth the risk.
There are four ways a child abuse case can be prosecuted: in criminal,
family or juvenile court, or within a civil lawsuit.
Criminal Court
In criminal court a child abuser can be indicted and convicted, and
sentenced to serve time in prison or other correctional institution.
Many factors can cause a prosecuter to be unsuccessful in charging an
abuser. Preparing a child for court is time-consuming, and a good defense
lawyer can convince a jury the the abuse did not occur and was merely a
fabrication. Many lawyers are hesitant to prosecute or defend these cases.
“The single most important message one can understand is to be as thorough
as you can,” said Ron, a worker for the Justice Department. “It is
recommended that law enforcement agencies respond to every report of a
missing child as if the child is in immediate danger.” Often police officers
assume a child is lost or has run away and will “miss the opportunity to
immediately identify critical evidence such as a witness who observed the
child talking to someone.”
A Florida couple and a South Carolina woman were charged with murdering a
child they had reported missing. This crime was solved because the police
followed the procedures discussed above.
Civil Lawsuits
Often, lawsuits are brought by people charging large organizations,
especially child care facilities, with negligence of a child left in its
care. Attorneys claim that anyone that can sue in these situations will, and
the chance of being sued by someone in any circumstance is also great.
Whenever a child is involved in a court case, they should be represented by
a trained advocate and he or she can play an active role in the proceedings.
Civil proceedings can result in financial compensation for punitive damages
on behalf of the child.
Family Court
Family Court determines the best interests of the child. The child needs to
be protected from the abuse and neglect inflicted by the adult, and the
court may make a decision to remove the child from the adult’s custody,
either temporarily or permanently.
A child may be removed from a home under judicial authorization when:
•
parents refuse medical care for the child
• the child needs a supportive environment in which to recuper-
ate from physical/emotional damage.
• the child is unable to protect him or herself
• the physical environment poses danger to child
• parents are not adjusted to normal social behavior
• child needs to be kept hidden from others
• sexual abuse escalates
• parents are unwilling to cooperate
• risk of stress or other negative elements and there are other
children who are at risk
• the child is abandoned
• the child experiences nutritional deprivation
• there is a history of long-term sexual abuse
• there is prostitution or other forms of exploitation |
The structure of our
judicial system is constantly being revised where it concerns the problem of
child abuse. Some criminal courts have appointed an independent advocate to
represent the best interests of the child. The “battered child syndrome” is
now an accepted part of medical and legal terminology, although the process
by which a diagnosis of “child sexual abuse syndrome” is made is still
considered by the courts a new science and not accepted as motive for
prosecution.
Mary Ellen Wilson
Mary Ellen Wilson was an eight year-old foster child who lived in the year
1874, and placed in the care of the City of New York. Once she was placed in
foster care, she was never reported on or monitored again.
The child was never loved, held or kissed; she was beaten repeatedly and not
clothed appropriately by her foster mother. A neighbor noticed this cruelty
and brought it to the attention of Henry Bergh, the founder of the American
Society for the Prevention of Cruelty to Animals. A request for help was
forwarded to lawyer Elbridge T. Gerry, he was named legal counsel and had
Mary Ellen removed from her foster home by an old English writ allowing
removal of a child from the custody of any person. Newspapers and magazines
wrote about the story and a new era in the care of children was entered they
were to be legally protected as much as animals were at that time.
“I was beaten and whipped almost every day,” Mary Ellen testified. “She [her
foster mother] used to whip me with a twisted whip, a raw hide. The whip
always left a black and blue mark on my body. I have black and blue marks on
my head which were made by mama, and also cut on the left side of my
forehead which was made by a pair of scissors. I don’t have any recollection
of having been kissed by anyone, have never been kissed by mama. I have
never taken on my mama’s lap or caressed or petted.”
The news about this case led to the creation of more than two hundred
Societies for the Prevention of Cruelty to Children and inspired others to
form many other such groups around the nation.
In December 1874, Gerry was successful in removing Mary Ellen from the
foster home and obtained a prison sentence for the mother, Mary Connolly.
Mary Ellen was put on the stand at court, and she proved a bright witness
and possessed unusual mental ability despite the neglect of her upbringing.
At first she answered the questions put to her, but soon she became
frightened and broke down crying and sobbing. The understanding of the court
recorder reassured her and she was able to continue to speak about the
maltreatment she received.
The ability of child witnesses to respond to the questions they are asked at
trial or to merely account for or understand the abuse they suffered is a
constant concern of those involved in prosecuting or defending child abuse
cases. The personalities of children, of course, vary widely and some
children may not be able to be witnesses.
Recently there have been children who have been able to speak up for
themselves – one of these was Gregory K. For most of his life Gregory did
not live a stable atmosphere; his parents divorced when he was four years
old, he spent many nights in the care of a babysitter, and finally his
mother put him in foster care when he was nine years old. By the age of
eleven he had been in five foster homes, but in the last one he found a
family he loved and who wanted him. However, his natural parents wanted to
retain custody of him and take him away from the care of his foster parents,
but he wanted to live with the latter. In 1992 he made legal history by
petitioning a court for a “divorce” from his birth parents.
“I am doing it for myself,” said Gregory, “so I can be happy.” He received
his “divorce” from his mother.
The main legal concerns in these situations seems to be toward the interests
of the child, but the truth is that children do not have any rights in
adoption. Only one percent of each year’s 60,000 adoptions of American
children are contested, and in these contestations the child suffers.
When a child has lived with a family for two to four years, the courts will
make a decision during that time whether or not a child should be returned
to its biological parent or parents. Sometimes the child has not even met
the birth parent. This is really a form of child abuse and it is not being
addressed in the courts.
In 1993, the media covered a story concerning a two-year-old child who was
taken away from the only parent she knew and returned to the birth parent.
In cases like this one, the child pays the price when the parent changes his
or her mind and wishes to rescind the adoption.
The laws have caused many problems with adoption in this regard, as the laws
concerning adoption are different in each state. The national Uniform
Adoption Act is attempting to rectify this situation by lessening the time a
birth mother or father can claim custody. A common problem today is that
some parents are coming forward years after giving a child up for adoption
and asking for a claim on the child.
An example of this kind of custody contestation occurred in New York City; a
man had been attempting to obtain custody of his children from his ex-wife,
and was awarded it when she was accused of neglecting them. The man was
never accused of doing anything to the children, but the custody was
conditional, dependent upon his finding adequate housing. His salary as a
loading dock worker did not allow him to afford the housing adequate to take
care of his children, whereas the City of New York would spend one thousand
dollars a month to keep the children in a foster home.
The children were put into foster care, but wanted to live with their father
and visited him every weekend. He said, “If the city would give me half the
money they are spending [on the foster home], I could take care of them
alone.”
This situation is an example of how the laws are sometimes not in the best
interests of the child, and can put great emotional strain upon the family
as a whole.
At the other extreme, legal action against child abuse can be somewhat
frivolous and verge upon hysteria. A seven year-old boy once claimed he wore
his knees raw at school when his teacher made him kneal as punishment for
leaving his desk. The child’s family hired a lawyer to prove undue
punishment and embarassment for the boy, as he claimed the other students
taunted him by calling him a dog and barking at him. The law now involved in
gaining prosecution and/or compensation for “undue punishment” for a child
who merely could not behave in school.
The laws regarding child abuse often cannot account for many contingencies,
and children can be victims of bureaucracy, and the system victim of
constant and extreme litigousness.
The Law Abusing Families
The story of the boy suing a school for undue punishment is the kind of
occurrence that shouldn’t happen and one finds it hard to believe that it
does. Child protection laws are vital for the safety and well-being of our
most vulnerable citizens, but it can result in an open-ended type of law
that allows children and their parents to be abused by public officials.
In California two cases took place which left the families involved angry,
frightened and vulnerable. The first case involved a sailor stationed in San
Diego who was arrested and charged with molesting the daughter he was
prohibited from seeing. DNA evidence had proved him not guilty, but he was
still arrested. After a convicted child molester who lived in the same
apartment complex as the father was arrested, he was released and absolved
of the crime.
New guidelines for accused child abuse offenders:
•
Criminals should be arraigned within 48 hours of arrest, during which
time the state must show
reasonable cause for detainment.
• If a child is not in danger from parents, he or she should be
reunited with them immediately.
• All hearings must place the burden of proof upon the state. Too
often, parents find themselves in court,
deprived of their children,
having to prove they are not abusive or negligent. This violates the
parents’
Fifth and Fourteenth Amendment due process rights. Forcible
removal of the child from his home without
cause also deprives him of
liberty.
• A speedy custody hearing should occur soon after children are
removed from their home. |
A second case of
wrongful accusation involved parents who became involved in a legal custody
battle even though they were nurturing and responsive to their children.
Their four year-old son played “doctor” with another boy the same age in
preschool. The boys’ parents were upset about it, but also realized this
kind of behavior was natural for young children to be curious about one
another’s bodies, and not necessarily viewed by the boys as a sexual act.
The parents of both boys talked to their sons and told them that their
behavior was normal, but that it wasn’t all right to touch someone else’s
body or to touch themselves publicly.
A year later the same parents’ younger son, who was three years old,
initiated a similar sex game at his preschool. A teacher asked him where he
learned this and he told her that his “mommy” taught him. It is unclear
whether the child was using his mother to validate his behavior or to cover
for his older brother, but eventually an investigation was launched and a
police officer and a child welfare worker went to the child’s house. The
parents’ four children were taken to a shelter.
The parents understood the reasons for the investigation and that child
abuse was a serious concern, and nothing was done regarding the incident
with the older son. The mother was accused of condoning inappropriate sexual
play and responded, “It is natural for children to be interested in their
bodies.”
The mother pointed out that nowhere in the transcripts of the investigation
and subsequent prosecution did the children say that their parents touched
them, and no charges against her were filed.
The parents have not been able to see their children, and even the
grandparents have been prohibited from doing so. The family is angry and
alleges that Child Protective Services has accused and charged them without
justification.
The couple has been written to by 70 of their friends, who have expressed
their thoughts about this problem and feel that this case has long gotten
out of control. The family had to wait a considerable amount of time for a
custody hearing court date.
Children have a basic right to be protected but they also have the right to
be protected from overzealous and/or incompetent social workers.
Couple Loses Their Appeal
A Seattle-area couple was convicted in 1986 of the statutory rape of their
three year-old daughter and her three year-old friend. The lawyer for the
couple stated that they continued “to suffer substantial disabilities as
result of their conviction.” They served 50-month prison sentences, for a
crime which they and their lawyer felt they were innocent, and their
daughter placed in a foster home. An appeal was filed, and both the 9th U.S.
Circuit Court of Appeals and the United States Supreme Court ruled against
them.
The case won national attention when the couple’s story was presented on the
“60 Minutes” television program. According to the story, the couple was
convicted based upon the children’s comments to day care workers, but the
children did not testify at the trial because they were judged incompetent.
The only evidence against the couple were two hearsay witnesses who worked
at the day care center the two girls attended.
A Harvard law professor, an expert on the nature of evidence presented at
trials, filed a friend-of-the-court brief on behalf of the parents urging
the United States Supreme Court justices to study the case and decide
whether someone may be convicted on hearsay evidence alone. Hearsay evidence
is provided by witnesses who have no knowledge of what occurred but were
told of it by another witnessing party. According to the professor’s brief,
“There is no real assurance that the children ever made the hearsay
accusation attributed to them.”
The couple still remain in prison, even though the two girls showed no
physical evidence of sexual abuse.
Confidentiality
Children and parents need to trust that secrecy and discretion is maintained
when discussing child abuse with anyone who has contact with them. When
information and concerns are verbalized to investigators, children and
parents must feel comfortable in exploring difficult issues with them. Any
explanation to a child should be tailored to their level of understanding.
A counselor can provide advocacy and advice on child protection issues such
as:
•
the need to place the child in foster care
• prevention of multiple placements of one child
• need for a change in placement
• informing and preparing the child for a foster care placement
• assisting the social worker, foster parents or biological
parents in man- aging the child’s behavior during
a transition to foster
care or in return- ing home
• making general recommendations
• discussing fears and concerns about court procedures
• discussing potential case outcomes
• discussing ways to manage emotional reactions to possible case
out- comes
• preparing the client to manage the stress of court testimony |
The priority is to
advocate the best interests of the child by taking into consideration the
child’s safety, emotional and developmental needs. In these situations,
there are many competing priorities:
•
child’s needs
• parents desires versus their actual capabilities
• investigative and judicial procedures
• local and state policies |
Family Court
One example of the court exascerbating a situation was the case involving
Dr. Elizabeth Morgan and her ex-husband Dr. Eric Foretich. They had divorced
soon after their daughter was born, and had agreed to a joint custody
arrangment. When the child was two years old, her mother claimed that that
the child was sexually abused by the father. Investigations by numerous
agencies could not prove any abuse, and the court, because of the lack of
evidence of abuse, permitted the father to have visitation rights.
The mother refused to let the father see the child, and the father became
angry at this and denied her charges against him. No one outside the family
could find out the truth and the conflict between the parents accelerated
the problem.
The daughter was not represented by a child advocate and was not asked her
version to the story. Dr. Morgan took the child to her grandparents in New
Zealand to hide her from the father. By doing this she was held in contempt
of court and was sentenced by a judge to stay in jail until the child was
returned, and stayed there for two years.
Finally Congress issued a pardon releasing her from jail and passed a law
allowing a parent in certain cases not to disclose the whereabouts of a
child if reasonably determined danger is found. The father decided not to
further pursue custody, the mother remarried and the child returned to
America.
It is not uncommon for parents to accuse each other of child abuse at the
time of divorce, as the child becomes the subject of contestation in the
proceedings.
Recalled Memories
One psychiatric expert claimed a teenage girl exhibited the telltale
symptoms of sexual abuse; dreaming about snakes, being afraid of men with
pointy canine teeth and refusal to have a gynecological examination. The
girl began therapy in 1989 when she was suffering from bulimia, and the
family counselor told her that 80 percent of all bulima cases are caused by
childhood sexual abuse.
After a few months of therapy, the girl, Holly, began having flashbacks of
her father abusing her. Eventually she claimed to have remembered a dozen
incidents of abuse and rape that occurred between the ages of five and
eight. She was treated with sodium amytal and it helped her remember
specific details of sexual molestation.
The father came to the hospital for a meeting arranged by the daughter, and
she accused him of abusing her. He found that the daughter made this
accusation while still groggy from the sodium amytal, but he was urged to
make a confession of abuse for her own good.
After this occurrence, the father lost his job and his wife divorced him. He
then hired an attorney, brought the case to court and the counsel called
upon an expert witness to discredit the therapeutic techniques of the family
therapist. A Harvard bulimia expert was also called, and claimed that there
was no relationship between childhood sexual abuse and the development of
bulimia. Dr. Lenore Terr, a prominent advocate of the validity of recovered
memories and chief witness for the defense, admitted under questioning that
at least one of the “flashbacks” was dubious. This admission helped cast
doubt on all of Holly’s sexual abuse memories.
The jury foreman said, “we felt that the therapists did nothing that was
malicious, but it was more a case of neglect.” No criminal charges have been
filed against the father, but the ruling did not address the question of
what actually happened. Furthermore, it will almost certainly make
recovered-memory therapists more cautious about how they try to unravel such
questions in the future.
Courts spend much time trying to salvage children’s lives, but it does not
seem to compensate for the damage of child abuse to them. Child Protective
Services investigates and reports child abuse cases, and when no physical
evidence is presented the child recants his or her testimony of abuse.
Some children, when they grow older, take revenge on their parents. One such
case of this occurring is of the Menendez brothers, Lyle and Erik, who were
accused of murdering their parents and claimed in their defense that they
did so in response to years of abuse suffered at the hands of their father.
The brothers admitted to murdering their father and mother, Jose and Kitty,
but after a long trial two hung juries could not determine whether this
defense was justified or not. Rarely have parents been so defiled in public
as the Menendez’s were in this trial.
One survivor of incest said that he hated his father, who had committed the
crime, but never wanted to kill him. “The thought never once entered my
mind,” he said, taking other alternatives to dealing with the problem than
murder.
It is unclear what causes some people to react in the way the Menendez
brothers did and not be able to control emotions. Some research has found
that people prone to violence are deficient in a brain hormone, serotonin,
and that chemical messengers in the brain cause them to act out violent
emotions.
The courts will again try to resolve the case of the Menendez brothers and
their stories of abuse, molestation and fear.
Questioning the Victims
Can the way a question is put to a child manipulate him or her into an
affirmative answer? Although some research claims that a child cannot be led
into making a false statement, interrogators should ask questions that help
the child’s disclosure rather than questioning to suggest a particular
response.
Five types of questions:
•
general
• focused
• multiple choice
• questions requiring a yes or no answer
• leading questions |
Shaken Infant
Syndrome
A serious kind of injury to children has been found to be occurring with
greater frequency in the last few years – “shaken infant syndrome.” An adult
will sometimes shake a child when the former is angry or frustrated, or as a
form of discipline, and most parents are not aware of how seriously this can
hurt a child. This form of abuse can be performed on a child as old as three
or four years, but most often occurs with a young infant. Shaking can cause
injury to the neck muscles or spinal cord, and can even cause brain damage
and death.
Unlike traditional homicide in which the victim is clearly injured, such as
being shot or stabbed, diagnosing death as a result of shaken infant
syndrome requires detailed medical analysis. When the evidence of the age
and medical condition of child shows that a parent was aware of the injury
to it, a criminal case forms.
A twenty-two year-old man shook his three month-old son to death and was
found guilty. He has been allowed to remain free on his own recognizance,
but was required to check in with the court three times a week and attend
counseling sessions.
An adult who becomes angry with a baby or toddler should put the child down
in a safe place and walk away from it. Another way to deal with possible
violent behavior as a result of frustration is for the parent to call a
friend, relative or neighbor for help.
Anti-crime legislation is being passed with greater regularity dealing with
child abuse and neglect, and the laws seek to protect individual rights and
the safety of the family. The government has been alert to the rights of
children, but laws move very slowly and the most that can be done is to
enforce the law against only obvious abuse, neglect or parental abduction
when it is broken.
Munchausen Syndrome
In the case of Munchausen syndrome by proxy, a parent will use indirect
solutions to meet his or her needs, and the health of the child becomes a
concern to the authorities in this situation. The child is investigated with
special focus on familial settings, and symbolic relationship of the child’s
stress to parental stress is taken note of.
Sometimes a parent may make a child ill by giving them particular
substances, and then put obstacles to treating the child’s condition. When
the parent is confronted with the truth, they deny knowledge and
involvement, and most of the time legal authorities are asked to intervene
on behalf of the child.
Suspicion of the syndrome should be discussed with the family once the
safety of the child is insured, and the case should be reported according
the child abuse reporting laws of the state. Social, familial and medical
histories must be obtained and verified, and court intervention should be
considered. Law enforcement and child protection agencies must be notified
as soon as the diagnosis is established.
A case in the Marin County Superior Court in California accused a woman of
the death of her child by repeatedly admitting her child to the hospital for
bouts of diarrhea. The condition of the child revealed suspicious
circumstances and the mother was prosecuted.
Media interest is the most powerful way to raise awareness of child abuse
and neglect, as it brings to light their broader social implications and
effect on the community. Our judicial system, from family court to Supreme
Court, must change the ways it addresses the public in this way. Judges must
know that a crime against a child is as serious as any crime against an
adult, and they must take the community-at-large into account when making
decisions about such crimes. Sentences for child murderers and child
molestation need to be of utmost importance.
Washington, Virginia, New Jersey, Maryland and many other states are
fighting to hold dangerous offenders beyond their prison terms. When rumors
swept a Detroit neighborhood that a new resident was a child molestor, the
other residents protested. A federal bill requires that the police must
notify communities when pedophiles and rapists move to or frequent their
area. Critics call the provision the “scarlet letter law”.
All of this is part of a national outcry against the brutal crimes of sex
offenders, and the furor has led to some very tough solutions. California
Governor Pete Wilson signed a bill that could put some first-time violent
sex offenders in prison for twenty-five years to life. The biggest problem
with this is figuring out which released sex offenders are the most
dangerous – a decision no one wants to make.
Summary
Many reports of child abuse never become legal action.
Prosecution has disrupted many families’ lives, and lawyers wonder whether
child abuse and neglect cases are worth the risk.
Many factors can contribute to a prosecutor being unsuccessful in pursuing
child abuse cases in criminal court.
Preparing a child for court is a time-consuming process.
Anyone who can sue for child abuse will do it and anyone can be sued.
Family court tries to determine and work toward the best interests of the
child.
The court can legally make the decision to remove the child from a home.
Mary Ellen Wilson was an eight year-old foster child who was abused, and
then removed from the custody of the abusers and testified in court against
them.
Funds are need for a variety of prevention strategies. Policymakers in the
United States can always benefit from the United Nations, who recognize the
rights of children in general and protect their rights from all forms of
sexual exploitation and abuse.
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