A Comparative Study of the Federal and State Legislations on Child Abuse in the United States of America, Research Paper Example

Abstract

According to the Child Abuse Unit, child abuse refers to the deliberate physical, emotional, sexual, psychological torture perpetrated on children under the age of 18 years, mostly by adults who are assumed to be their caretakers. In the United States of America, the Federal Government sets the permissible standards but individual states have the autonomy to provide their own definition of the vice both within the social (civil) and criminal contexts (Finkelman, 2005).

It is the responsibility of the Federal government, individual states and local governments to principally combat child abuse. Each of the over 50 states and other territorial authorities have some laws and legislations meant to combat this menace, some of the legislations determine the circumstances where intervention required is necessary. Through some legal enactment, the states have established judicial and administration structures aimed at dealing with instances where the child abuse and neglect have been detected. This research paper seeks to find out the various laws and legislation in the US Federal government as well as in individual states (Finkelman, 2005).

Introduction

According to (Child Welfare Information Gateway, 2007) this malpractice claims lives of about two thousands children in one year in the US. This can be translated to five deaths in a day. Past research has also shown that on average, a child is abused in every fourteen seconds in the United States. This kind of chilling statistics necessitates quick action both from the Federal and individual states government realm. It is imperative for everyone to understand the adverse consequences that this abuse and neglect have in the future lives of the victims. This abuse affects the victims in diverse ways, but at no point will it have a positive impact in their lives. Studies shows that majority of those arrested on acts of violent crimes had suffered some form of abuse and neglect at some point in their lives.

Child abuse definitions are typically placed in three categories as per each the statutory codes of individual states and according to the Criminal Statutes these malpractice is punishable according to the law. Individuals who are obligated to identify and report cases of child abuse are guided by a civil definition of child abuse as provided in the Mandatory Child Maltreatment Reporting Statutes. Further definition is provided by the Juvenile Court Jurisdiction Statutes which defines situations where the court can acquire jurisdiction over a child victim of abuse and neglect. This occurs in the case where the child security and safety cannot be guaranteed in his/ her home residence.

Background Study

It is surprisingly ironical that majority of the child abuse cases are usually perpetrated within the family setting; what is best known to be the safest place and in turn a source of security, support and most importantly love can at times harbor the most abusive individual to the child. This is especially complicated by the societal assumption that parents are always there to perform for the best of their children. This makes them to have moral, ethical and legal obligation of taking care in safeguarding their children. The society has thus been obligated into taking care of such children’s health and safety when their parents fail to meet these basic human needs. It is sometimes surprising that laws to protect animals from unfair human treatment were enacted long before the issues concerning child abuse and neglect were addressed!

There is a case which was reported in New York in 1874 involving a nine- year old girl who was continually beaten up by her parents on daily basis. The poor girl named Mary Ellen was sliced by scissors and had sections of her body burned using sharp hot objects. Her foster mother, Mary Connoly, would even leave her confined in the closet while attending to issue outside her house. It is said that the “mother” physically, emotionally and psychologically abused her for a record seven years despite continued attempts by the land lady to free her. This situation persisted until a method case worker; Etta Wheeler came to her rescue. According to the report, the police said that they could not take action as there were no proofs of torture, abuse or neglect. During the time there were no laws safeguarding an individual against battery and assault and no guide for intervening in such cases. The furious Wheeler finally consulted the founder of the American Society for the prevention of Cruelty to Animals, Henry Bergh. To justify her next of action, Wheeler argued than children belonged to kingdom of animals and thus should be protected under the same laws used to safeguard animals against mistreatment by humans. Although Henry Burge disagreed with her and consequently rejected the request, he became more concerned with the girl’s case (Kalichman, 2008).

Through the assistance of a number of lawyers and on behalf of Mary Ellen, wheeler managed to file a petition in the New York Supreme Court which proved that Connoly was illegally holding Mary in captive, and latter proved that the Connolly’s were not legal guardians nor parents of Mary. Witnesses were summoned in the court and many of them described the extent of torture that Mary was going through. A leather whip was always kept near the section where she was confined and using it, Miss Connolly used to flog her regularly. Mary was also presented before the court and visible scars all over her body were used as an exhibit of intensity of torture, she also calmly narrated how Connolly used to cut her body with scissors. The court decided to jail Connolly for one.

Although fair justice was not awarded, this case raised the alarm on the impact around the entire nation and consequently the New York Society for Prevention of Cruelty against Children (SPCC) was founded. This was the first organization to campaign for the legal protection of children and other forms of societal minorities and their effectual rights in the United States of America (Kalichman, 2008).

Significance of the Study

It is essential for everyone to understand the adverse consequences that child abuse and neglect have in the future lives of the victims. This research aims at addressing the various legal clauses of the Federal and states’ laws designed for curbing child abuse and neglect cases.

Rationale of the Study

This research is aimed at boosting the advocacy for protection of the young generation against acts of child abuse and neglect, through enlightening the public on the various existing protection and reprisals laws and legislations at the state and national level.

Assumptions and Limitations

This research is based on Federal government and individual states’ information retrieved at the time the document was being prepared and therefore,  it does not put into consideration the bills concerning child abuse that were yet to agreed upon. Laws and legislation are subject to revision by law makers and interpretation by the judiciary. In as much as the research as been as up to date as possible, there is no guarantee that the information content provided is current.

Literature Review

Child abuse and neglect does not discriminate on the victims, sex, age, race, financial status background or religion. Young as well as old teenagers can be affected. This vice can happen to any child and most of the time it is a silent problem. This vice may be perpetrated by any person ranging from the parents themselves, older siblings, close relative, teachers or somebody strange to the victim. Shocking research results shows that at least one in every four children in America undergoes some form of abuse and neglect at some point in life. In most of these cases, the vice is perpetrated by individual of close relations with the child victim. This individual may be a relative, a caretaker, family friend; making this phenomena not new to many adults in the United States of America. Studies have also shown that child abuse and neglect acts are mostly perpetrated by people who underwent the same predicament during their childhood days (Kalichman, 2008).

It is the responsibility of the individual states and local governments to principally combat child abuse. Each of the over 50 states has some laws and legislations meant to combat this menace, some of the legislations determine the circumstances where interventions required. Through some legal enactment, the states have established judicial and administration structures aimed at dealing with instances where the child abuse and neglect have been detected.

In 1998 on average, 2,806,000 referral cases of child abuse were recorded to the concerned state and local agencies. Further investigation resulted in confirmation of 903,000 victims of child abuse. This statistics shows that about 13 out of every 1000 children I the US, undergo some form of abuse and neglect in their lifetime. About 53.6 percent of these cases were as a result of neglect.11.5 was victims of sexual abuse, 25 percent were victims of maltreatment and 22.7 cases were subjected to physical abuse. In some critical situation, 1100 death cases were reported this can thus be in turn translated to 1.6 deaths in every 100, 000 children. About one quarter of these cases of child abuse and neglect were perpetrated by parents of the victims (Administration on Children and Families, 2000).

The results of most of this cases can be generated by anyone, however about half them (53.3%) in 1998 were produced by the professionals particularly in the medical and mental health sector, child care societies, teachers and law enforcement agencies. However some non- professionals such as family and immediate members are accredited with the provision of the remaining 46.7 percent of the information on child abuse and neglect (Administration on Children and Families, 2000).

Types and Various Forms of Child Abuse and Neglect

Emotional Child Abuse

This form of emotional abuse may occur as verbal or mental abuse. This arises due certain acts or failure to act of caretakers or parents that may lead to substantial behavioral, mental or emotional disorders in the life of the child. The caretakers or the parents may be using extreme or strange forms a punishment against the children. Types of child emotional abuse include, ignoring the plight of the children, rejection, terror actions, corrupting the minds of the minor and so on. This form of abuse is said to account t about 8 percent of the reported child abuse cases (Children’s Defense Fund, 1999).

Emotional child abuse may occur where a child is unfairly confined in an enclosed, dark and isolated closet; other minor actions of this type of abuse may range from, demeaning, intimidation or rejection. This type of children grow up not knowing what real love is; they up having social problems such as fear of interacting freely with people, shyness, withdrawal from peers and having an introvert personality. This is a very terrible and unfortunate form of child abuse one can go through (Children’s Defense Fund, 1999).

Neglect

This form of child abuse occurs when the child’s guardian fails to meet the child’s basic needs and rights. This may take the form of emotional, physical and educational neglect. Physical neglect is said to occur where a child is denied food, clothing and shelter, appropriate medical care, supervision and good weather protection care. Education neglect arises where a parent fails to offer schooling or appropriate special education demanded by the needs of the child. There are situation where a parent is not offering the required assistance on the child’s homework, or assisting him/her in reading and writing. There are cases where the parent fails to offer any the required emotional love, care and support; this constitutes emotional neglect (Children’s Defense Fund, 1999).

Physical Abuse

There are recorded cases where physical injury has been inflicted intentionally on the body of the child. These cases have shown that physical injury takes the form of punching, slapping, kicking, beating, hitting, burning thus causing physical harm on the child. This abuse is formally defined as the deliberate non- accidental bodily injury committed by individual who care, provide custody, or monitor the life of the child. Accidental and unintentional harm cannot be classified as physical abuse. Signs of physical abuse include Physical anguish and trauma including rashes, bleeding, on the legs, arms, back and buttocks. Patterned injuries and bruises with definite sharp and curved boundaries indicate continued and strong signs of torture. Burns and scolds indicate also signs of physical abuse. On serious instances a patient will experience joint dislocation, sprains and fracture.

Although many use this as a form of punishing the child and thus instilling discipline, forms of child abuse such as battered- child syndrome only makes the child to be more violent and also distorts them from distinguishing what is right or wrong for them in life. Long term medical complications may arise especially where this acts are committed to infants and preschool babies.

Sexual Abuse

This is a serious offence according to the law, it is said to occur where inappropriate sexual acts with a child, this includes: fondling and mishandling of the child’s genitals, have sexual intercourse with minors, sexual exploitation, compelling a child to fondle his/her genitals, rape and incest. These acts are mostly perpetrated by parents, baby sitters, daycare providers, or anyone related to the victims. Sometimes, friends, neighbors and complete strangers may be responsible for exploiting the minors sexually. Child related sexual abuse symptoms need to be assessed in combination as no single sign can clearly prove such a case. According to Sagatum et al (1995), one in every six boys and one in every three girls is sexually abused before the age of eight years in the US.

Physical signs of sexual child abuse include:

• Physical anguish and trauma such as rashes, redness, and bleeding in the genital, oral and or anal areas
• Bruises on buttocks, lower abdomen, thighs, genital region and breasts
• The child may complain of pain irritation and itching on genital and/or anal areas
• The victim may find it hard to sit and/or walk
• Offensive or unusual odors
• Due to such actions, the victim may experience difficulty in bowel or bladder control mechanisms
• Constipation
• Presence of blood in the urine
• Due to the torture, the victims may experience sudden weight loss or weight gain
• The victims may experience sexually transmitted infections in the areas affected
• The patients may experience psychosomatic complaints such as headaches and stomachs

Sexual Abuse Laws

The US Code Title 18 of the Federal laws contains the laws on crimes and Criminal procedures.

Chapter 110 of the federal laws deals with the Sexual Exploitation and Other Abuse perpetrated on Children

1. Any individual who uses, persuades, coerces, introduces, or persuades a minor child to indulge or engage in any action and conduct that deems to be sexually explicit, or tries to introduce any depiction of the action/ conduct, is liable to punishment as provided in subsection (d), this applies also to the case where such an individual knowingly transports such visual materials through international or interstate trade or mailing.
2. Any legal guardian, caretaker, parent, or any person with the custody of a minor who willingly allows such a minor to engage in such action as described in subsection (a) above for the purpose of making visual description of such acts and conduct is liable to punishment as stipulated under section (d) of this act. This also applies to a case wher5 such guardian, parent, or care taker has prior knowledge of a possible transfer of such information from one state or nation to another.
3. This law allows seeks to punish any individual who i9n the situation described above, with prior knowledge produces, publishes and/or prints such form of visual depiction (Sagatum & Edwards, 1995).

The investigation of a child abuse case may take several patterns. However since the information may arise from anyone, child protection authorities take up the matter by first investigating and determining the nature and extent of abuse and neglect; this is aimed at proving whether indeed such a crime has been committed. In case the victim has suffered injuries, at this point he/she receives treatment services. If the crime has been committed by individuals in the children bracket, the case is referred to the juvenile judicial courts for ruling. Extreme cases are however handled by the criminasl courts of law. For the example in the child abuse and neglect cases reported indicated earlier from the year 1998, 409, 000 of the victims underwent some form of medical and counseling services and 144 000 of the cases were referred to the foster care (Sagatum &Edwards, 1995).

Although ideally the obligation of combating this vice lies squarely in the hands of both the state and federal government, the latter does not principally play a convincing role. However in 1974, the congress passed the child Abuse Prevention and Treatment Act; this act established the structure for the recent federal efforts in combating the mistreatment through focus on data collection and provision of the necessary technical aid to individual states. Children’s Bureau, a fraction of the Administration on Children and Families in the Health and Human Services Department coordinates these efforts.

The enacted federal legislation gives the foundation for the individual states by establishing the minimum behaviors and sets of acts that define the abuse and neglect acts on children. The Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A§ 5106g), was reviewed by the Keeping Children Families Safe Act of 2003, defines he minimum acts to be considered as abuse and neglect on children as:

• Any act of failure to act which poses an imminent risk to the life and health of a child or
• Act of failure to take action by a child’s custodian, parent or care taker which may lead to serious physical and emotional hurt, sexual exploitation and abuse.

This act mainly targets acts of child abuse and neglect perpetrated by a parent or a care taker and with respect to the definition, a child refers to a person of 18 years and below and or who has not a liberated minor. The CAPTA gives legal definitions for child sexual abuse and other crimes relating to the failure to offer appropriate medical treatment services to a needy child, it does not issue particular definition for other forms of mistreatments such as neglect, physical and emotional abuse.  Although the Federal government’s definition gives the minimum standards, individual states are obligate with the provision of their own definitions within the legal civil and criminal contexts. In order for them to benefit from the finances provided under the Child Abuse Prevention and treatment Act, January, 1996 version, each of the states are mandated to enact the law on re[porting cases of child abuse and neglect. The original 1974 act was further been reviewed, amended and reintroduced against in 1996 as Child Abuse Prevention and treatment and Adoption Act of 1996.

The Indian Child Welfare Act (ICWA)

There occurred the need to effectively harmonize the policies and practices of the Federal government, state administration and sovereign states with the safety and thus special needs of the Native American Indian children. This led to the enactment of the Indian Child Welfare Act (ICWA) into the federal law. This was a culmination of many years of heightened political struggles between the native Indian community leaders, state protection agencies, collection of church organizations and the existing court systems.

This law was indeed aimed at curtailing the increased disruption and interference of the Indian families by church groups, states agencies and the rest through the adoption of certain procedures meant to eliminate and foster placing the Indian children; this was also aimed at re-defining the roles and obligation of existing authority (Children’s Defense Fund, 1999).This law  assisted the natives against the destruction of their traditional systems through the protection of the entire community, individual tribes and families.

Through the interaction with the Caucasian community, the Indians had lost massive land, culture and their lives as the foreigners transformed into colonialists. This brew in them long term legacy of chronic suffering and unresolved anguish and grief across their generation. The congress after American independence was in a dilemma on either to grant them the right to self governance or effectively incorporate and assimilate them into the new system of governance and administration. When the latter proposal was ultimately adopted, many of the Native’s children were removed from the comfort of their primitive families and placed in boarding government schools and Christian founded mission schools and thus they were educated in the Caucasian culture and ideals. In situation where the families were adamant in taking their children to the foreigners’ schools, the government through congress authorization resorted to hold back of clothing and food rations meant for the disputing families (Sagatum &Edwards, 1995).

When the boarding schools began to close in the 1950s, many were concerned about the status of the life and the general poverty on which these children shall find back in their reserve homes if alternative measures are not organized. A plan was adopted where these Native Indian children will be housed in non- Indian homes for care and ultimate adoption. This new strategy led to the effective separation of about 25- 35 percent of the children from their families by public and private adoption agencies, state courts and church and other welfare organizations.

This Indian Child welfare Act provides that in situations of child abuse and neglect cases necessitating the adoption and foster care of native children; the tribes must be allowed to take jurisdiction through the tribal court other that the individual formal state courts, before this children are taken out of their homes. This act is based on the Federal Statutes and applies to all private and public support groups engaged in the placement of the native Indian children in foster homes.

The tribal chiefs are afraid that such unprecedented actions could threaten the existence and survival of their generation as a people. This conception has proved hard to erase from the minds of the elders.

Mandatory Whisltleblowing on Cases of Child Abuse and Neglect

The entire United States jurisdiction; all the states, the Columbian District, and all the US affiliated states of Puerto Rico, Northern Marina Islands, Guan and Samoa are have legal statutes that seek to point out on individuals who are supposed to report cases of child maltreatment in  the prevailing conditions.

About 48 of these states including the District of Columbia have specified on professional members who are legally mandated to report on such cases of child abuse and neglect. These designated individuals are supposed to maintain regular contact with children. Some of these professional include; teachers, Social workers, Mental health workers, Medical practitioners and other health personnel, Coroners and medical examiners, and lastly members of the Law enforcement agencies.

In other states and Puerto Rico, there are other professionals who are also mandated, theses include drug and substance abuse counselors, parole and probation officers, photography production processors, domestic violence prevention workers, Special advocates appointed by the courts and religious leaders and members of the clergy.

In the standards of case reporting, each state has stipulated circumstances and conditions under which these designated reports can issue their reports. Ideally the report can be prepared when the reports in his/her official capacity, suspects and has proven beyond reasonable doubt that a child is being abused and mistreated. The reporter can also issue a report when observes or has knowledge of a child being treated in a manner likely to harm the child. These are the legally accepted standards under which the permitted reporters can prepare a report (Finkelman, 2005).

Conditions for Privilege Reporting

This statutory recognizes the right of the designated professionals to maintain confidential and private communication with the clients, congregants or the guardian of the alleged victimized child; thud these statutory outlines the circumstances under which such communication is privileged. Most states in America have enacted laws that provide for such privileges in order to protect both the affected children and the reporting officer.

In most states, there exist a tool free telephone line that is specifically reserved for reporting cases of child abuse and neglect. Although these reports can be made by anonymous individuals, the state child protection agencies advocate for the identification of the reporters in order to assist in effective and conclusive investigation. 16 of the US states, Puerto Rico recommend for the disclosure of the reporters identity either in the initial oral reporting or in the subsequent written communication. For example the states of Washington, Delaware and Connecticut require the child Rights official to insist on the reporter’s identity prior to the acceptance of their reports. In Wyoming State however, this is not necessary, but if medical evidence documents such as X- ray photographs are availed, then the reports identity is required for the case investigation to proceed.

Disclosure of the Identity of the Reporter

All the states and other regions of governance have legal statutes that protect the confidentiality of the individuals concerned and the respective abuse and neglect records. In about 39 states, such laws protect the identity of the alleged perpetrator of the reported acts of child abuse and neglect. This is kept secret even in situation where literally the rest of the information has been disclosed (Kalichman, 2008).

With prior authorization of certain state departments, the information can be released.  For example in Tennessee, Oklahoma, Texas and Guan, through a compelling reason the court of law can order the release of such confidential information. This may also apply in circumstances where it has been proven that the reporter prepared false information. In places such as Minnesota, Florida, Guan and Vermont, the confidentially can be lifted by the reporter himself so as to offer consent to the release of his/her identity.

Failure to Report Cases of Child Abuse and Neglect

Studies have shown that many cases of child abuse and neglect go unreported. This has made the Federal government and every state to enact legislation meant to punish individuals through penalties and possible imprisonment; especially the mandated reporter who willingly fails to communicate out on a suspected case on child abuse as stipulated by the law. Several states have also enacted laws that seek to counter individuals who avail incorrect information; this helps to eliminate malicious or deliberate fiving out of false and unfounded reports (Kalichman, 2008).

Penalties for Deliberate Failure to Report

About 48 states, the Columbian District, Samoa, and Northern Marina islands, all have enacted laws and legislation that inflict penalty to mandatory reporters who knowingly fail to \forward reports concerning suspects and/or cases of child abuse and neglect. This offence is termed as misdemeanor in 38 states including Guan, Samoa and the Virgin Islands, while in Arizona, Illinois and Florida the misdemeanors further promoted to felony where serious repercussion arise out of it. Any mandatory reporter found guilty of the offence is liable to an imprisonment of a maximum of 5 years and/or fines ranging US$100 to a maximum of US$5000. In addition to the criminal penalties, the reporter is expected meet the cost of any damage incurred by the victim due to the failure to report (Children’s Defense Fund, 1999).

Consequences for False Reporting

About 30 of the US states carry some legal consequences within their reporting legislations for individuals who deliberately or willingly give out wrong information. In most of these states these kind of offence can be treated as either misdemeanor or felony basing on the gravity and seriousness of the case in question.  States such as Nebraska, Montana, California and Maine do not however dace such kind of criminal sanctions subjected to false reporters. Reporters who report false information cease to enjoy the immunity against criminal and/or civil penalties earlier extended to them.

The reporter can faces up to 5 year jail term and/or a maximum of US$5000 fine penalty upon conviction. In six states of Colorado, Idaho, Indiana, Minnesota, California and North Dakota, all have in addition to the hail term and penalty, a legislation that compels the reporter to meet the cost of damages incurred as a result of the wrong reporting.

Conclusion

Through the analysis of the facts about child abuse, it’s evident that the issue will continue to be the core of heated debate, disagreement and increased consideration until the issue is completely sorted out. Truly speaking, the problem of child abuse and neglect is not likely to end any sooner.

References

Child Welfare Information Gateway (2007). Sources of Definitions in State Law

Children’s Defense Fund. (1999). The state of America’s children. Boston: MA: Beacon Press.

Finkelman J.D (2005) Child Abuse: A multidisciplinary Survey Short- and Long-Term effects. New York: Garland Publishing, Inc.

Kalichman, S.C. (2008) Mandated Reporting of Suspected Child Abuse. Washington, DC, American Psychological Association.

Sagatum I.J &Edwards L.P (1995). Child Abuse and the Legal System. Chicago, IL: Nielson-Hall Publishers.