Legal Issues in Child Abuse and Neglect Practice

John E. B. Myers

• Publisher: SAGE Publications, Inc
• Year: 1998
• ISBN:
  9781452237589
• Edition: 2
• Topic: Psychology
• Subtopic: Interpersonal Relations in Psychology
• Index: Psychology

This expanded and updated Second Edition of Legal Issues in Child Abuse and Neglect Practice offers a state-of-the-art exploration of what role the law can play in bettering the lives of victimized children. While all who work with abused children share the same goals, there often exists a gap in communication between legal and helping professionals that reduces efficacy of cooperative efforts. This new edition continues to provide vital information to non-lawyers on how the legal system in the United States works in child abuse cases.

Prevalence and Effects of Child Maltreatment

Child abuse is a scourge on children that inflicts incalculable suffering. What’s more, child abuse is ugly. It makes us wince and avert our eyes. During the past 35 years, however, society has stopped closing its eyes to the reality of child abuse. Citizens from all walks of life—politicians, professionals, parents—have said, “We’ve got to do something about this. Our kids deserve better.” They’re right, of course. Kids deserve love, support, encouragement, and friendship, not apathy, violence, ridicule, and abuse.

As I said, during the past 35 years, society has come to take child abuse seriously. But have we eliminated abuse? Hardly. If the efforts of the past three decades had succeeded completely, you could toss this book in the trash and go for a walk. Unfortunately, the book is still relevant. Child abuse remains a serious social ill.

This book is about law. The law cannot solve the problem of child abuse. The solution, if there is one, lies in classrooms and clinics, not courtrooms. Nevertheless, the law plays many roles in making life better for children. The judges, lawyers, police officers, and probation and parole officers administering the legal system share goals with the social workers, nurses, physicians, educators, mental health professionals, and others laboring to protect children. Too often, however, a gap separates legal professionals from helping professionals. My goal in this book is to bridge that gap by giving nonlawyers information that will help them interact effectively with the legal system. Effective communication and cooperation between helping professionals and the legal system goes a long way toward child protection.

A book on legal issues is not the place for extensive analysis of the prevalence and effects of child abuse. Yet no book on child abuse is complete without some discussion of the scope of the problem. This chapter, therefore, briefly reviews the literature on the prevalence and impact of child abuse and neglect.

Physical Abuse

Physical abuse is common. “Parental maltreatment is a severe social problem that affects children all over the world” (Cerezo, 1997, p. 215).

DEFINITION OF PHYSICAL ABUSE

Physical child abuse is nonaccidental physical injury. Legal definitions of physical abuse are found in three places: (a) criminal codes, (b) statutes governing the juvenile court, and (c) child abuse reporting laws (see Chapter 3).

PREVALENCE AND EFFECTS OF PHYSICAL ABUSE

Children are kicked, punched, clubbed, burned, starved, poisoned, and otherwise abused in every way you can imagine and some you can’t. It is difficult to know the true prevalence of physical abuse.

Physically abused children are at increased risk of mental health problems as they grow up (Fergusson & Lynskey, 1997; Styron & Janoff-Bulman, 1997). As Whipple and Richey (1997) observe, “The impact of a physically abusive childhood is profound” (p. 432). Some physically abused children batter their own children (Malinosky-Rummell & Hansen, 1993). Bower and Knutson (1996) state that “a history of abuse has become acknowledged as a risk factor for child maltreatment” (pp. 696-697).

Every year, more than a thousand children die from abuse or severe neglect (Daro & Lung, 1996). “Although such deaths are relatively infrequent, the rate of child maltreatment fatalities confirmed by CPS [child protective services] agencies has risen steadily over the past eight years” (Daro & Lung, 1996, p. 7). Official reports probably underestimate the scope of fatal abuse and neglect (Ewigman, Kivlahan, & Land, 1993). The actual number of children killed each year in the United States may be closer to 5,000 (Levitt, Smith, & Alexander, 1994). Fatal child abuse is particularly common among very young children and babies (Brewster et al., 1998; Kirshner & Wilson, 1994). Approximately 50% of fatalities are children under age 1 (McClain, Sacks, Froehlke, & Ewigman, 1993).

CORPORAL PUNISHMENT

Most American parents use corporal punishment (Edwards, 1996; Graziano, Lindquist, Kunce, & Munjal, 1992). More than 90% of children are physically punished at some time (Flynn, 1996). The rate of corporal punishment against adolescents is between 33% and 50% (Graziano & Namaste, 1990; Straus & Kantor, 1994). Corporal punishment is less prevalent in some countries than others (Fergusson & Lynskey, 1997). The situation in the United States was summarized by Graziano and Namaste (1990):

Slapping, spanking, paddling and, generally, hitting children for purposes of discipline are accepted, pervasive, adult behaviors in U.S. families. In these instances, although physical attack and pain are involved between two people of vastly different size, weight, and strength, such behavior is commonly accepted as a proper exercise of adult authority over children.

With the exception of warfare, self-defense, and the often necessary use of force by the police, no human interactions other than adult-child interactions carry such clear social supports for the unilateral use of physical punishment by one party on another. Similar behavior between, for example, an employer and an employee carr[ies] clear proscriptions and can readily provide the basis for civil and/or criminal actions brought by the victim. Children, it seems, have been singled out from among all groups in American society as the recipients of such treatment. (p. 450)

In 1996, the American Academy of Pediatrics published a consensus statement on the short- and long-term consequences of corporal punishment. According to this statement,

Spanking is not recommended in infants and children under 2 years of age because escalation, should it occur, carries a greatly increased risk of causing physical injury.

There are no data bearing on the effectiveness of spanking to control misbehavior short-term in the average family. Limited data on preschool-children with behavior problems suggest that spanking may increase the effectiveness of less aversive disciplinary techniques. Data relative to the long-term consequences of spanking of preschool children are inconclusive….

Currently available data indicate that corporal punishment…, when compared with other methods of punishment, of older children and adolescents is not effective and is associated with increased risk for dysfunction and aggression later in life….

Concerning forms of corporal punishment more severe than spanking in infants, toddlers, and adolescents, the data suggest that the risk of psychological or physical harm outweigh any potential benefits.

In 1998, the American Academy of Pediatrics moved beyond the 1996 consensus statement (Committee on Psychosocial Aspects of Child and Family Health, 1998). In a report titled “Guidance for Effective Discipline,” the Academy states:

Despite its common acceptance, and even advocacy for its use, spanking is a less effective strategy than time-out or removal of privileges for reducing undesired behavior in children. Although spanking may immediately reduce or stop an undesired behavior, its effectiveness decreases with subsequent use. The only way to maintain the initial effect of spanking is to systematically increase the intensity with which it is delivered, which can quickly escalate into abuse. Thus, at best, spanking is only effective when used in selective infrequent situations.

Because of the negative consequences of spanking and because it has been demonstrated to be no more effective than other approaches for managing undesirable behavior in children, the American Academy of Pediatrics recommends that parents be encouraged and assisted in developing methods other than spanking in response to undesirable behavior. (p. 726)

The law allows parents to use “reasonable” corporal punishment against their children. Although the term reasonable corporal punishment sounds like an oxymoron to some, it is widely used. According to the Iowa Supreme Court, “Parents do have a right to inflict reasonable corporal punishment in rearing their children” (Hildreth v. Iowa Department of Human Services, 1996, p. 159). A California statute states that physical abuse “does not include reasonable and age appropriate spanking to the buttocks where there is no evidence of serious physical injury” (Cal. Welfare and Institutions Code § 300).

When does corporal punishment exceed “reasonable” limits and become abuse? Whipple and Richey (1997) observe that “despite decades of research on physical child abuse, remarkably little is known about where to draw the line between permissible forms of physical punishment and actual abuse” (p. 431). In People v. Whitehurst (1992), the California Court of Appeals stated:

A parent who wilfully inflicts unjustifiable punishment is not immune from either civil or criminal prosecution…. Corporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when such punishment, although warranted, was excessive. “Both the reasonableness of, and the necessity for, the punishment is to be determined by a jury, under the circumstances of each case.” (pp. 35-36)

As the court stated in Whitehurst, cases turn on their unique facts (see Whipple & Richey, 1997). Judges consider the child’s age, the type of discipline inflicted, the means used, the degree of injury or pain, and the number of episodes (Whipple & Richey, 1997).

Corporal punishment has harmful long-term effects for some children (Flisher et al., 1997). According to Flynn (1996), “Recent studies have suggested that a host of potentially harmful behavioral and psychological consequences may result from so-called ‘ordinary’ physical punishment. These negative outcomes include alcohol abuse, depression, suicidal thoughts, behavioral problems, low achievement, and future economic insecurity” (pp. 59-60). On the other hand, Fergusson and Lynskey (1997) found that “occasional or mild use of physical punishment” is unlikely to have “either beneficial or detrimental effects on longer term adjustment” (p. 628).

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Adults who were physically punished as teenagers were more likely to think about suicide and more likely to abuse alcohol.

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In a study of 6,002 American families, Straus and Kantor (1994) examined the association between corporal punishment during adolescence and later mental health problems. They concluded that “corporal punishment in adolescence is associated with a significantly increased probability of depressive symptoms as an adult” (pp. 550-551). Adults who were physically punished as teenagers were more likely to think about suicide and more likely to abuse alcohol (see Wagner, 1997). Straus and Kantor (1994) found that “the more corporal punishment the subjects experienced when they were teenagers, the greater the risk that they will go beyond ordinary corporal punishment to acts that are severe enough to be classified as physical abuse” of their own children (p. 555).

In his classic 1978 paper titled “The Myth of Classlessness,” Pelton (1985) described “substantial evidence of a strong relationship between poverty and child abuse and neglect” (p. 24) and asserted that “abusing and neglecting families are the poorest of the poor” (p. 28). Recent research by Fergusson and Lynskey (1997) confirm the relationship between severe physical punishment/abuse and socioeconomic circumstances. These authors reported “clear differences in childhood environments” in subjects who had different exposures to physical punishment or maltreatment:

In general, those reporting overly frequent punishment, harsh, or abusive treatment more frequently came from demographically dis-advantaged homes, experienced a higher rate of other childhood and family adversities, and were more often exposed to childhood sexual abuse. These results clearly suggest that the elevated rates of adjustment problems in this group may have been largely or wholly due to the social environment and context in which physical punishment/maltreatment occurred, rather than to the traumatic effects of such treatment on longer term adjustment. Subsequent analysis supports this conclusion to the extent that adjustment for prospectively measured childhood, family, and social circumstances substantially reduced the associations between reported physical punishment/ maltreatment and adjustment at age 18. Nonetheless, even after such adjustment, those reporting overly frequent, harsh, or abusive treatment during childhood were at increased risk of involvement in self-inflicted or interpersonal violence (suicide attempt, violent crime, victim of assault) and were more prone to alcohol abuse /dependence. (p. 627)

When corporal punishment occurs in a psychologically and economically impoverished home, it is difficult to sort out the cause or causes of long-term adjustment problems. But in light of mounting evidence that corporal punishment does more harm than good, Judge Leonard Edwards (1996), one of America’s leading legal authorities on child abuse, has asserted that “it should be illegal to use corporal punishment on all children under five years of age” (p. 1021).

Neglect

Child neglect is common. Erickson and Egeland (1996) state that

although the bruises and scars of physical abuse are more readily apparent, the quiet assault of child neglect often does at least as much damage to its young victims. Typically defined as an act of omission rather than commission, neglect may or may not be intentional. It is sometimes apparent (as in the unkempt appearance of the child who comes to school without a bath or adequate clothing) and sometimes nearly invisible until it is too late. Neglect is often fatal, due to inadequate physical protection, nutrition, or health care. Sometimes, as in the case of “failure to thrive,” it is fatal because of a lack of human contact and love. In some cases, neglect slowly and persistently eats away at children’s spirits until they have little will to connect with others or explore the world. (p. 4)

Eight types of neglect are discussed in Chapter 7.

Sexual Abuse

Child sexual abuse emerged from secrecy in the late 1970s and is today a major focus of concern.

PREVALENCE AND CHARACTERISTICS OF SEXUAL ABUSE

Child sexual abuse is common in the United States and other countries (Finkelhor, 1994; Goldman & Padayachi, 1997; Gorey & Leslie, 1997). The true prevalence of sexual abuse is unknown because such abuse occurs in secret and because most incidents are not reported to authorities (Russell, 1984). Finkelhor (1994), in a review of the prevalence literature, observed that “because sexual abuse is usually a hidden offense, there are no statistics on how many cases actually occur each year” (p. 34). However, research supports an estimate of 500,000 new cases of child sexual abuse every year in the United States (Finkelhor, 1994).

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Approximately 20% of girls experience some form of sexual abuse during childhood, ranging from relatively minor touching to brutal rape and incest that goes on for years.

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Both girls and boys are sexually abused (Finkelhor, 1986; Friedrich, Brambsch, Broughton, & Beilke, 1991). Approximately 20% of girls experience some form of sexual abuse during childhood, ranging from relatively minor touching to brutal rape and incest that goes on for years (Finkelhor, Hotaling, Lewis, & Smith, 1990; Flemming, 1997). Finkelhor (1994) concluded that “at least one in five adult women in North America experienced sexual abuse (either contact or noncontact) during childhood” (p. 37). Reece (1997) observes that “this 20 percent figure keeps recu...