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CHILDREN’S RIGHTS, CHILD
ABUSE, AND THE LEGAL SYSTEM
By Randy Burton, founder, Justice For
Children
Congressman Major
R. Owens stated at the opening of a field hearing on child sexual
abuse in New York on April 20, 1992, "Ignoring or mistreating
child sexual abuse is tantamount to allowing an untreated cancer
to grow in our society.” Several experts and parents testified
at this hearing concerning the obstacles to addressing and remedying
this problem. One of these experts, The Honorable David Paterson,
a state senator from New York, testified that one of every three
young girls and one of every five boys become the victims of child
sexual abuse and that a high percentage of those most afflicted
repeat the cycle.[1]
This federal hearing was
convened in response to a state-level investigation conducted
by then-Assemblyman Jerrold Nadler (D-NY), who concluded that
the system has failed miserably to protect sexually abused children.
Despite this and
numerous similar hearings representing virtually every region
of the United States into the failure of the child protective
system, nationwide reports of child abuse and neglect continue
to rise. This increase is a direct and predictable consequence
of the failure of our legal system to protect known victims of
abuse. This crisis is even more critical as it affects children
who are unable to defend themselves.
The Family Courts
Much of our legal
system's failure to protect abused children occurs in state family
courts. For example, when the abuser is a parent of the child
and the other parent is innocent of any complicity in the abuse,
the "protective parent" often seeks to dissolve the
marital relationship. In cases where the abuse is discovered
post-divorce, the protective parent may seek to restrict or eliminate
visitation privileges.
However, the family
court system is comprised of judges and court personnel who often
lack sufficient training in child abuse issue and are frequently
indifferent to the child's allegations of abuse, particularly
allegations of sexual abuse, because they assume that allegations
of child abuse in custody cases are all-too-common and, therefore,
false. This attitude remains despite numerous national studies
indicating that the number of false allegations of sexual abuse
in custody cases is de minimis.[2]
Mental health professionals
and attorneys ad litem are routinely appointed by judges
in return for campaign favors and critical court decisions may
be based more on personal relationships with lawyers than on sound
legal principals. As a result, the protection of the child and
any due process to which the child is entitled are given little
or no consideration, and the abuser is frequently given unrestricted
visitation with the child, if not total custody. Child abuse,
whether sexual or physical, and child protection becomes only
incidentally a custody question. [3]
Originally traumatized
by the perpetrator, the child may be victimized again by the legal
system designed to protect him/her. This legal system was originally
put into place to (1) identify children who had been abused or
severely neglected by their parents or caretakers, (2) remove
those children at risk of further abuse or neglect, (3) place
them in protective custody or terminate parental rights and place
the child with adoptive parents, and, (4) bring perpetrators of
child abuse and criminal neglect before the bar of justice. However,
since its creation, this system has devolved into one in which
incompetent, ineffective, overwhelmed, and corrupt government
officials or bureaucracies, who are accountable to no one since
these court records are often sealed, may make decisions resulting
in abused and neglected children being left in dangerous homes.
While a few publicized cases have reported allegations of altered
transcripts, altered or destroyed government documents, exparte
communications, and hearings held and orders issued without court
reporters, these cases may reflect a greater problem within the
family court system. Children’s Protective Services (CPS)
According to the
National Committee to Prevent Child Abuse, 3 million new reports
of child neglect or abuse were made in 1993, one report every
10 seconds. The recent National Incidence Survey III conducted
by the Department of Health and Human Services found that fully
72% of all reports received by CPS, or 2,160,000 reports of child
abuse or neglect, were never investigated by CPS. Nineteen ninety-three
records from CPS show that nearly half of all children who were
confirmed as abused or neglected did not receive any follow-up
assistance from CPS.
Of those cases reported,
an estimated 1,299 children died from abuse or neglect, 42% of
the children who died had been previously reported to CPS as being
in danger, and 90% of those children were age 5 or younger.
These preventable child
deaths were not merely the result of incompetence or excessive
caseloads, but rather the direct and predictable consequence of
a social service delivery system that places a higher priority
on preservation of the family unit and rehabilitation of the offender
than on protection of the child.
Fundamental to an
understanding why we are failing abused child is the fact that
children who are victims of crimes are treated differently from
adult crime victims. Only in instances of crimes against children
does our law enforcement establishment allow a social service
agency (CPS) lacking law enforcement training and with conflicting
priorities, to receive the initial report of abuse, perform the
initial "civil" investigation of the crime, and dictate
the progress of the criminal case.
Only in cases of
child abuse is a victim forced by the state to live in the same
home with his or her abuser. And, only in cases of child abuse
is a person denied the right to be safe in his or her own home.
This points out a fundamental issue involving the rights of children:
They have no rights. Because children cannot speak for themselves,
they are denied access to justice and equal protection under the
law.
Allowing CPS to control
the criminal investigation and the determination of when or whether
to remove the child from harm's way has proven to be a fatal error
in many cases. For example, whereas police agencies measure their
response time to the scene of adult crimes in minutes (and child
abuse cases may involve first degree felonies where the child
is literally being held hostage by the perpetrator), CPS measures
acceptable response time in terms of days. A "priority one"
or life threatening report of child abuse means CPS is required
under its own guidelines to arrive on the scene within 24 hours.
Furthermore, CPS
lacks the victim's perspective of law enforcement (whose complaining
witness must be protected to preserve the criminal case). CPS's
"client" is not the child, but the family. Their goal
is to rehabilitate the perpetrator and preserve the "family
unit"; to perform a “social experiment” often at the child's
expense. Unfortunately, few such experiments have proven successful
and the child is often re-abused.
This family preservation
bias has been strongly motivated by federal funding which has
required, as a condition to receipt of the funds, that local CPS
agencies demonstrate that "reasonable efforts" have
been made to preserve the family. Not surprisingly, when the
vulnerable child victim is kept in the same home with the person
against whom they may testify and who may ultimately be imprisoned,
the child often “forgets” or "recants" the allegations.
This would be similar to deciding that an adult victim of rape
or battery live with their rapist or batterer during the impending
criminal investigation.
Despite the best intentions
of the most dedicated social worker, a child cannot be protected
in an abusive home.
As various parts
of the country experience “system failures” with CPS, a growing
national consensus is developing based on the research that the
family preservation is inherently risky and unworkable. While
some efforts to rehabilitate parents who neglect or abuse their
children have been successful, outcome is not predictable in individual
cases. Dr. Richard J. Gelles, Ph.D, a nationally recognized expert
on family violence, and formerly one of the strongest proponents
of family preservation, has stated that the “evidence is in” and
the policy of family preservation has been an “abysmal failure.”
District Attorneys
CPS misplaced priorities
become the de facto priorities of the entire system. Because
CPS is the inlet point for virtually all child abuse complaints,
their efforts affect all the other downstream legal entities with
an interest in the child's case; namely, the District Attorney's
office and the criminal and civil courts.
Since child abuse
cases are notoriously difficult to prosecute, the District Attorney's
office is often less aggressive on these matters than other easier
"shooting fish in a barrel" cases. Children under the
age of 6 are routinely held by criminal court judges to be "incompetent"
to testify as to the crime committed against them. In sexual
molestation cases, the physical evidence can be non-existent or
at least controvertible. Of course, child witnesses are also
the most fearful of the legal process and can be easily intimidated
by a criminal defense attorney with the perpetrator by his side
"confronting" the child accuser.
Conclusion
We must begin to
consider the social cost of the failure of our legal system, not
only in terms of the well-being of abused and neglected children
but also in terms of the long term effect of child abuse on our
community. The child who survives an abusive environment is all
too often the future runaway, drug addict, or child abuser preying
on the next generation of innocent citizens.
Advocacy for children's
rights must not be left to a social service agency that maintains
the repressive and scientifically unproven view that it is more
harmful to the child to remove him or her from the family than
to leave the child in the abusive home. This policy is a throwback
to the notion that child abuse is a "family problem,"
not a crime, and should be handled by the family. Likewise, protection
of the civil rights of children should not be left to a insensitive
family court judiciary and their appointees.
Solutions to this
complex and failed system are known, are available, and are essential
if our country hopes to get a handle on the burgeoning child abuse
problem. Child abuse, in any form, is a crime and should be treated
as one. It is critical that law enforcement be given primary
authority for the receipt and investigation of child abuse complaints.
When used effectively, law enforcement results in segregating
the offender from the victim and impresses upon the abuser that
there is someone more powerful who refuses to allow the further
abuse of a child.
Finally, an urgent
need exists for federal action to ensure that laws in our states
pertaining to child abuse and neglect, whether physical or sexual,
whether family member or stranger, be strengthened to protect
children. By aggressively intervening on a timely basis on behalf
of the child, and by ensuring that the legal rights of the child
are observed in any subsequent judicial proceeding, our government
can stop both the systemic abuse of the child.
__________
Justice for Children is a national child
advocacy organization headquartered in Houston, Texas, which advocates
for those victims of child abuse and neglect that have fallen
through the cracks of the system designed to protect them. JFC
has a professionally qualified staff in offices in Houston, Scottsdale,
AZ, and Washington, DC. It also has volunteer-run chapters in
a number of other states. In addition to addressing public policy
concerns through legislative and educational initiatives, Justice
for Children provides pro bono attorneys for cases where the child
or protective parent has no other advocate.
Randy Burton, founder and president of
Justice For Children, has attained national recognition for his
work to protect abused and neglected children from further abuse.
Mr. Burton has received the American Bar Association Child Advocacy
National Certificate of Recognition, the City of Houston Mayor’s
Award for Outstanding Volunteer Service, and the Houston Young
Lawyers Award for Outstanding Young Lawyer of Houston.
Endnotes
1. Field Hearing on Child Abuse,
1992: Hearing before the Subcommittee on Select Education of
the Committee on Education and Labor, House of Representatives,
102nd Cong., 2nd Sess. 6-7 (1992).
2. Ducote,
R. and Harrison, D. (YEAR). Studies of true and false allegations:
A critical Review.” Sexual Abuse Allegations in Custody and
Visitation Cases. Location: Publisher
Corwin,
D. et al. (1987, March). Journal of Interpersonal Violence, 2(1),
91-103.
3. In 1993, an extensive investigation
was conducted into Texas' family court system by the Texas Ethics
Commission after numerous complaints. In its report, the Commission
stated, "we believe the testimony in Houston raised questions
about the administration of justice in the Harris County Family
Courts. We suggest that the State Commission on Judicial Conduct,
the Legislature, or the Supreme Court should investigate the issues
raised by those who testified to the commission in Houston and
decide what action, if any, may be appropriate to address those
concerns."
Furthermore, in March of that same
year, the "Texas Supreme Court Task Force to Examine Appointments
by the Judiciary" found that the current appointment system
"impedes the court's ability to function efficiently and
can result in injustice and undermine the public's confidence
in the entire system." They also found "that in some
areas of the state judges use appointment income as a reward or
incentive to campaign supporters." The Task Force heard
numerous cases in which the judicial appointee received substantial
fees despite spending very little time on the case or performing
poorly.
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