Child abuse is broadly defined in many states as any type of cruelty inflicted upon a child, including mental abuse, physical harm, neglect, and sexual abuse or exploitation. The specific crimes charged in instances of child abuse can include assault and battery. In many states, certain individuals and caregivers are required by law to report suspected child abuse.
Child Abuse Defenses + Defending yourself against a child abuse charge can be difficult especially if it involves the testimony of a child. Combine that with the media's negative depiction of child abuse offenders and it may seem impossible to overcome the harsh realities of a child abuse allegation.
If you are charged with child abuse - whether physical, emotional, or sexual - a criminal defense lawyer can devise a sounddefense strategy and help cast doubt on the prosecutor's case. Like other crimes, a person charged with child abuse has the same rights as defendants of other crimes, including the right to defend themselves against a criminal charge.
While child abuse laws aim to protect children, the justice system is set up to vindicate those who are wrongfully accused. Below are some of the most common (and some not so common) defenses that a person may assert on a child abuse charge:
False Allegations of Child Abuse + A common defense to child abuse charges is to say you didn't do it.False accusations of child abuse are more common than most people think, especially in dysfunctional families or between parents who are involved in a difficult child custody battle. Although sometimes difficult to prove, the best strategy to defend false child abuse charges is to aggressively counter-attack allegations and show proof of the lie or similar wrongful conduct by the accuser.
The Injury Is a Result of an Accident+ Most state child abuse laws do not punish accidents, unless the accident was a result of recklessness or gross carelessness. Examples of true accidents may include pushing your child on a bike and causing him to fall and scrape his knees or unknowingly slamming your toddler's hand in the door. When a child's injuries are a result of an accident, a person may raise this as a defense against child abuse charges but courts are split as to whether to prosecute parents who accidently cause harm to a child when acting with negligence (such as leaving a sleeping baby in a car alone on a hot day).
The Injury Is a Result of Something Other Than Child Abuse + Sometimes parents are falsely accused of child abuse based on non-accidental situations, such as when a child fights with another child and injures himself or when a child has a pre-existing medical condition that contributes to her own injuries. For example, one type of disease called "brittle bone disease" has been raised as a defense to show that one's injuries were the result of a disorder that causes a child's bones to break easily, and not a result of child abuse.
Parent's Right to Discipline + Parents are generally free to discipline their children in any manner they choose, so long as the discipline is reasonable and causes no bodily injury. The question of how a parent disciplines a child (such as through spanking or threat of spanking), however, is often the subject of many child abuse cases. In certain circumstances, a parent, or one standing in "loco parentis "(such as a teacher), can raise the defense of "parental privilege" and claim that they had the right to reasonably discipline a child under their authority. However, if a child's injuries are more serious than minor bruising as a result of the discipline, the parental privilege may not apply.
Religious Beliefs or Exemption + Even though it's hard to grasp the thought of a child dying from an easily treatable illness, parents may claim an exemption to child abuse for religious reasons when a child dies because of a parent's failure to seek medical care for their sick child. Although controversial, this religious exemption is a defense in all but a handful of states, and allows parents to escape charges of child abuse if they choose to pray for their sick children rather than take them to a doctor.
Munchausen Syndrome by Proxy + In rare cases, an individual accused of child abuse may raise the little-known defense called Munchausen Syndrome by Proxy (MSBP). MSBP is used to describe incidents in which a child caregiver, usually the mother, either lies about or promotes illnesses in their children in an attempt to draw attention or sympathy to themselves. This defense usually requires proof of psychological or medical data.
There may be other defenses available depending on the circumstances in your particular case. It is wise to speak with a criminal defense lawyer who can help you understand your rights with respect to child abuse laws in your state.
Do's and Don'ts: False Allegations of Child Abuse + As public awareness of child abuse increases, more and more reports of possible abuse are being made. Conscientious reporters are taking the necessary first steps to protect children. Not all reports of abuse are substantiated, however. Sometimes, even when the reports are made in good faith, further investigation reveals that the accusations are not true. In yet other situations, false allegations are intentionally raised in order to harm the subject of the allegations, such as in a bitter divorce in which custody of the children is contested. If you find yourself the victim of false allegations, whether from a well-meaning source or an embittered spouse or ex-spouse, you need to take immediate counter-action. The following tips, together with expert legal counsel, can head you in the right direction.
DO attempt to prevent the possibility of false allegations by avoiding being with children without another adult present. Day care workers, scout leaders, coaches, and others who could be the target of false allegations can lessen the likelihood of those charges sticking by having another adult present who can corroborate that nothing inappropriate happened.
DO attempt to resolve custody disputes amicably in order to avoid the possibility of an angry spouse or former spouse using false allegations as a means of punishment or obtaining custody.
DO avoid engaging in any conduct that could be deemed inappropriate when dealing with children, such as making sexually suggestive comments, telling dirty jokes, rough-housing, or engaging in overly aggressive horseplay.
DO hire an experienced attorney if someone levies false allegations against you. Even if you trust that the truth will prevail, or that the accuser will calm down and retract the accusations, it is imperative that you consult with an attorney who knows the legal issues and system involved and can safeguard your interests.
DO educate yourself about the subject of false allegations of child abuse so that you have a greater understanding of the situation, can protect yourself, and can work as a partner with your attorney.
DO contact your attorney with questions and concerns, and keep him or her apprised of developments in your situation.
DO contact friends, neighbors, co-workers, and family members who may be willing to testify on your behalf, either by written affidavit or in court.
DO maintain your positive relationships with your children when the allegations arise out of a custody dispute, and understand that the children are not responsible for the false allegations and resulting turmoil. Even if they say the words that support the allegations, understand that false accusations can be planted in children's minds through no fault of their own.
DO appreciate that allegations of child abuse must be taken seriously and investigated. Even though you know that in your case the accusations are groundless, in many cases they are not, so in the interests of all children further investigation is generally necessary.
DON'T abuse your children, or any others, physically, emotionally, or sexually.
DON'T put yourself in any unnecessary situations that could give rise to suspicion, such as by accompanying children to the bathroom, helping them change clothes, or bathing them. If your job requires such activities, it is always best if another adult is present during all circumstances that could be wrongly interpreted.
DON'T be passive if false accusations are raised. Take immediate action to protect yourself.
DON'T be afraid to ask your attorney questions before retaining him or her, and as your case progresses.
DON'T admit to anything you did not do, even if may seem simpler to do so. A conviction for child abuse has long-lasting, far-reaching implications, and can have an adverse effect on future employment, future relationships, and your future in general.
DON'T lose your temper with the authorities involved in your case. As angry as the situation may make you, losing control could be used as evidence to support the allegations.
DON'T give up. It may be the ugliest battle of your life, but overcoming and disproving false allegations of child abuse is without a doubt worth the effort.
Child Abuse Physical, sexual, or emotional mistreatment or neglect of a child.
Child Abuse has been defined as an act, or failure to act, on the part of a parent or caretaker that results in the death, serious physical or emotional harm, Sexual Abuse, or exploitation of a child, or which places the child in an imminent risk of serious harm (42 U.S.C.A. § 5106g). Child-abuse laws raise difficult legal and political issues, pitting the right of children to be free from harm, on the one hand, against the right of families to privacy and the rights of parents to raise and discipline their children without government interference, on the other.
The mistreatment of children at the hands of parents or caretakers has a long history. For centuries, this behavior was shielded by a system of laws that gave children few, if any, rights. Under English Common Law, children were treated as property owned by the parents. Parents, particularly fathers, had great latitude over the treatment and discipline of children. This outlook was carried to the American colonies and incorporated into early laws in the United States.
One of the first cases to bring national attention to child abuse arose in the early 1870s. An eight-year-old New York orphan named Mary Ellen Wilson complained of being whipped and beaten nearly every day by her foster family. Her case captured the attention of the American Society for the Prevention of Cruelty to Animals (ASPCA). An attorney for the ASPCA took Wilson's case, arguing that as members of the animal kingdom, children are entitled to the same legal protections from cruelty as are animals. A judge heard evidence that Wilson's foster family, the Connollys, routinely beat her, locked her in a bedroom, and made her sleep on the floor. Charged with Assault and Battery, Wilson's foster mother was convicted and sentenced to one year of hard labor. Even more significantly, publicity surrounding Wilson's case led to the establishment, in 1874, of the New York Society for the Prevention of Cruelty to Children. The following year, the New York Legislature passed a statute that authorized such societies to file complaints of child abuse with law enforcement agencies.
In 1962, an article in a major medical journal again brought national attention to the issue by identifying the symptoms that can indicate child abuse. The article, by Dr. Henry Kempe, appeared in the Journal of the American Medical Association (JAMA) and discussed a diagnosis for child abuse. The article resulted in widespread awareness of child abuse and prompted further public discussion on ways to address the problem. By 1970, every state had enacted laws requiring certain professionals, such as teachers and doctors, to report incidents of suspected child abuse to law enforcement agencies. In 1974, the Federal Child Abuse Prevention and Treatment Act (42 U.S.C.A. §§ 5105–5106) became law, authorizing federal funding for states to identify child abuse and to offer protective services for abused children.
Statutes make up one component of a state's child-protective services; another component, the child-protective services agency, implements the statutes. Reporting statutes, which vary from state to state, require that certain professionals report suspected child abuse, whereas others, such as neighbors, are entitled but not required to do so. Other statutes define child abuse. For example, in some states, officially recognized physical abuse occurs only when a child suffers a specified type of injury, whereas in other states, any serious injury that is not accidental in nature is considered abuse. Sexual abuse of children generally need not cause injury; any sexual act performed on a child can be considered abuse. Similarly, state statutes categorize as child abuse any neglect of a child that places the child at risk, regardless of whether the child is actually injured. Before substantiating a report of emotional abuse of a child, state statutes generally require a finding of actual harm. Still other statutes specify procedures for investigating child abuse, determining whether a report of abuse is substantiated, intervening to protect an abused child from further harm, and maintaining records of child abuse reports.
When allegations of abuse meet the statutory definitions, the state's child-protective services agency or a law enforcement agency steps in to investigate. Child-protective services agencies generally investigate allegations only when the child's parent or guardian is suspected of causing the abuse or of allowing it to occur. Family Law presumes that the parent or guardian will protect the child from abuse by other parties and that he or she will contact law enforcement agencies to investigate incidents of abuse by other parties when the parent is not causing or allowing the abuse.
Caseworkers for child-protective services investigate abuse allegations most commonly by interviewing or visiting with the child, the child's parents or guardians, and other sources such as physicians and teachers. If an agent finds evidence that supports a conclusion that the child has been abused, the agency deems the allegations substantiated. The next step is intervention.
Intervention can mean many different things. Frequently, when the risk of further abuse is immediate and significant, child-protective services agents will place the child temporarily in a foster home. Alternatively, agents may monitor the family or may provide counseling in order to curb the threat of abuse. If a family does not cooperate with the intervention efforts of child-protective services, the agency may take the case before a judge, who may determine that abuse or neglect has occurred. He or she may issue a court order mandating the agency's intervention. In extreme cases, agents may remove the child from the home permanently; following a judicial termination of parental rights, the child is then placed for Adoption. Another function of state child-protective services is record keeping, which is accomplished through a system known as the central registry. The central registry contains information about child abuse reports—both substantiated and unsubstantiated—such as the names of the child and of the suspected abuser and the final determination made by the child-protective services worker. This system helps agents in investigating current reports of abuse because it allows them to compare any previous accusations, particularly within the same family. The registry also supplies statistics about child abuse, which help the agency and the state legislature to enact appropriate laws and policies and to provide adequate funding for child-protective services. In some states, other parties may have access to the registry. For example, a day-care center may check the registry before hiring employees, or an adoption agency may check the registry before placing an infant with a family.
Few doubt that state child-protective services agencies provide a valuable service by responding to allegations of child abuse. But such agencies also have their critics. Many people who have been accused of child abuse, particularly parents, object to the way in which these agencies routinely remove children from their homes when child abuse is suspected. Children are traumatized by being taken from their parents, and allegations of abuse are frequently unfounded, these critics claim. Contentious Child Custody battles sometimes prompt false accusations of physical or sexual abuse, costing the accused time and money in the fight to reclaim their children and their reputations. Others object to the names of the accused being included on the central registry even when the accusations are unsubstantiated. The backlash against child-protective services spurred the establishment, in 1984, of an information and support group known as Victims of Child Abuse Laws (VOCAL). VOCAL claims to have thousands of members nationwide, and its members lobby for new laws that protect not only children but also parents who are falsely accused of being abusive or negligent.
Despite increased legislation and penalties for child abuse, extreme cases continue to appear and to sustain the debates over child abuse laws. Such cases include the Schoo case in suburban Chicago, which received widespread media coverage. In December 1992, David Schoo, a 45-year-old electrical engineer, and his 35-year-old wife, Sharon Schoo, a homemaker, flew to Acapulco, Mexico, for a Christmas vacation, leaving their daughters, nine-year-old Nicole Schoo and four-year-old Diana Schoo, home alone. The Schoos provided their daughters only with cereal and frozen dinners to eat and a note telling them when to go to bed. One day during their parents' absence, the girls left the house when a smoke alarm sounded. As they stood barefoot in the snow, a neighbor found them, learned of their situation, and called the police.
The Schoos were arrested while still on the plane that returned them from Mexico nine days after they had left their children. Following their indictment on various state charges of child endangerment and cruelty, a Grand Jury also found evidence that the Schoos had beaten, kicked, and choked their children in order to discipline them. In April 1993, the Schoos plea-bargained, agreeing to serve two years of Probation and 30 days of house arrest while the girls remained in foster care. In August 1993, the Schoos agreed to give up their parental rights and placed their daughters up for permanent adoption.
Another nationally publicized case raised questions regarding the effectiveness of child-protective services and implicated social workers charged with protecting the victim. Two-yearold Bradley McGee, of Lakeland, Florida, died in July 1989 from massive head injuries after his stepfather, 23-year-old Thomas E. Coe, repeatedly plunged him head-first into a toilet. Coe later testified that he had become angry when the child had soiled his pants. McGee's 21-year-old mother, Sheryl McGee Coe, pleaded no contest to second-degree murder and aggravated child abuse for allowing her husband to abuse McGee, and received a 30-year prison sentence. Thomas Coe, convicted of first-degree murder and aggravated child abuse, received a sentence of life in prison.
The McGee case alarmed the public not only because of the harsh physical abuse that caused the toddler's death but also because of what many perceived to be a failure in the system that is designed to protect children like Bradley McGee. Two months before his death, Bradley had been living with foster parents owing to allegations of abuse at the hands of the Coes. Despite strong objections by the foster parents, caseworkers for Florida's Health and Rehabilitative Services returned McGee to his mother and stepfather, determining them to be fit parents.
Public reaction was strong following the news of Bradley's death. Four social workers were prosecuted for negligently handling the case, but only the main caseworker, Margaret Barber, was convicted, for disregarding a report from a psychologist who had warned that the Coes were unfit parents. The publicity shed light on problems within Florida's child-protective services agency, including severe understaffing, and led to new laws that emphasize keeping children safe over keeping families together and that also increase funding for more social workers. A Florida appellate court later overturned Barber's felony conviction but left standing a misdemeanor conviction for failing to report child abuse.
In 1997, a controversial court decision led to a new legal concept: abuse of an unborn child. Traditionally, courts have refused to hold a woman who causes injuries to her own fetus criminally liable for the injuries. But in August 1977, the Supreme Court of South Carolina affirmed the criminal conviction of a woman whose crack cocaine usage while pregnant caused the fetus to be born with cocaine in its system, (Whitner v. State, 328 S.C. 1, 492 S.E. 2d 777 ). By regarding the fetus as a person, the 3–2 majority concluded that the mother was guilty of criminal child neglect. In January 2003, the state court revisited its holding in Whitner when it voted 3–2 to uphold the 12-year sentence of a woman who had been convicted under the state's homicide-by-child-abuse law after her cocaine use had resulted in a stillbirth. (State v. McKnight, 353 S.C. 238, 577 S.E. 2d 456 ).
In early 2002, a major child-abuse scandal involving priests shook the Catholic Church. Although child-abuse litigation against priests is hardly new, the public was shocked by the revelation that senior church officials had covered up the facts about widespread abuse. Beginning with allegations against church officials in Massachusetts, the scandal swiftly became national in scope. By year's end, 432 U.S. priests had resigned; at least 1,205 more had been accused of child sex abuse; church officials paid hundreds of millions of dollars to settle victims' lawsuits; and seven grand jury probes continued nationwide.
At the epicenter of the scandal was Boston-based Cardinal Bernard F. Law. Following the molestation conviction of former priest John Geoghan in January 2002, it emerged that Law had known of Geoghan's abuse during the 1980s yet had merely reassigned him to a new parish. More abuse ensued and ultimately led to over $10 million in settlements with victims. As fresh allegations emerged throughout the year, Law came under bitter public rebuke for allegedly shielding abusive priests from scrutiny, footing their legal bills, and either allowing them to remain on the job or reassigning them to new, unsuspecting parishes. Critics charged that such policies failed to protect children. With church attendance and donations reportedly in decline, the U.S. Conference of Bishops responded by instituting a policy requiring bishops to report abuse allegations to civil authorities. The church also began cleaning house: Following a meeting with the Pope, Law resigned in December 2002.
With most investigations continuing in 2003, grand juries probed possible criminal actions by church officials in Massachusetts, New York, Philadelphia, Phoenix, St. Louis, Los Angeles, and Cincinnati. Even with Law and seven bishops under subpoena, and with evidence of what was called an elaborate cover-up, Massachusetts attorney general Thomas Reilly dampened expectations for a criminal prosecution, due to barriers under state law to holding a superior liable for the actions of a subordinate. In New York, which concluded its probe in February 2003, no charges were brought because the five-year Statute of Limitations had expired. But grand jurors there issued a blistering 181-page report alleging that church officials had protected 58 sexually abusive priests and that they had intimidated victims in order to prevent legal action. The New York archdiocese denied the allegations.
Legislation at the state and federal levels continues to change to meet the goal of protecting children from abuse and neglect while protecting families from the damage of false accusations.
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