Previous   Next

Child Abuse and the Court of Law

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.

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.

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.