Penny K. Zhitomi
While we have established that a parent should be the primary caregiver for the child, unfortunately, not all parents do what is best for their children. When and where the state intervenes in such cases is a highly debatable issue. The term “neglect” is often so vague and subjective that courts are “afraid” to take action. Children can be neglected physically and/or psychologically (emotionally). So many different terms are used when referring to inadequate childcare that, again, the multitude of definitions seems confusing. Courts have to differentiate between neglect, abuse, maltreatment, deprivation, etc. None of these terms seem to have universally accepted definitions. Even court decisions across the country illustrate how truly subjective some of these issues have become.
In
Children’s Rights and the Law
, definitions for abuse and neglect are given which I agree with, and would lice to refer to them from here on out in reference to this topic. Abuse is “any intentional, non accidental injury, harm, or sexual abuse inflicted on a child.” Neglect is “the responsible caretaker’s non provision of care essential to a child, such as food, clothing, shelter, medical attention, education, or supervision.”
A particularly “hot” topic in the child abuse debate is “excessive” discipline vs. “acceptable normal” discipline. How far can a parent go in spanking or hitting his/her child for unacceptable behavior? When I was growing up, spankings were much more common and accepted than they seem to be in today’s society. Although recent surveys indicate that 75% of parents spank their Acids, some parents have probably become too afraid that they will be brought up on abuse charges for hitting their child. Who will determine if the frequency or severity of the punishment crosses the line into child abuse? Again, the courts seem to be giving ambiguous answers.
Any type of sexual abuse seems to be more clearly definable. Incest, rape, sodomy, or sexual exploitation of children is considered a criminal offense. Before we begin to explore how abuse cases are determined and acted upon, let me just point out that with each state having such different standards, our country lades the legal uniformity to take proper steps to curb child abuse. What would not be tolerated in Connecticut, for example, may be accepted in Rhode Island or vice versa. After doing more research in this topic, I feel that the United States should establish federal laws that regulate family behavior under the same criterion in all fifty states. This will decrease any misinterpretations amongst the states.
While survey after survey of reported child abuse cases have been done in the past thirty years, it is extremely difficult to determine if indeed abuse has decreased or increased. Heightened awareness, more sophisticated reporting systems, and sympathy for the child have encouraged more people to “come out” and report suspected cases of neglect. According to recent statistics, however, more than 2.4 million American children have been reported abused or neglected in 1989. Nationwide reported cases climbed more than 226% in the last decade.
What has remained as one of the biggest obstacles in conquering child abuse has been the difficulty in prosecuting parents. As stated in
Children’s Rights and the Law
:
The evidence that is available from eyewitnesses is for the most part useless. Even if the child is alive and mature enough to testify, he may have changed his account of the incident to match the abuser’s version. The victim of child abuse is far more susceptible to the influence of the alleged abuser than are most victims of other crimes. While other siblings often are present when the child is abused, they are also easily influenced and intimidated. Further, the husband-wife privilege may prevent the other parent from testifying. The defendant may know how the injury occurred, usually will maintain that the child was hurt accidentally....(page 173)
Four primary factors are responsible for the difficulty of prosecuting parents: l ) the debate over the child’s competency and credibility as a witness, 2) the admissibility of statements made by a child out-of-court, 3) husband/wife and doctor/patient privileges, and 4) the use of character evidence. What must the courts do if the child is too young to explain what is happening to him/her? I would like my students to delve into this topic specifically and examine some criteria that can be accepted. I want my students to ask at what age a child could possess the understanding to testify. For me, it seems like we are coming to another standstill in the age issue. There have been competent five year olds who were allowed to testify and yet there have also been incompetent twelve year olds whose testimony was disregarded. This issue must remain open to changes for each individual case. Since no two children are alike, decisions on acceptable ages for testimony cannot be too rigidly established. Obviously we do not intend to put l 8 month olds on the stand, but maybe a three or four year old is capable of expressing truthfully what happened to him/her.
As I read more about this never-ending dilemma regarding age limits, I find it almost ironic that we have people malting these decisions who themselves do not all function on equal levels. Many
adults
can still be considered immature or incapable of malting appropriate decisions. Personally, I know someone who is thirty and considerably less mature than some of my thirteen year old students.
Unfortunately, children often become intimidated before testifying by the adults who may have abused them in the first place. Another factor to take into consideration when determining the validity of children’s statements is the trauma itself. Will being forced to “relive” the abuse through testimony have further damaging effects on the child’s well-being? Some children may intentionally block out or try to forget what happened to them. First and foremost, the child’s overall condition must be considered before being put into such a traumatic experience publicly.
In all matters involving child abuse, the state must determine if and when the child is to be returned to his parents. There is no question that children should be protected from harm, but not at the cost of greater harm resulting from the intervention itself. We must acknowledge that a parent’s interests may indeed be different from a child’s interests. Unfortunately, all parents do not always act in their child’s best interests and some NEVER WILL! We, as a society, need to recognize that children are “not” property of their parents; they belong to themselves. Children are merely in trust of their parents. The disruption of the family and relationships within that family unit must be considered. The perfect balance of child protection and parental autonomy has not yet been reached in the courts. The tendency is currently toward state intervention but that will go through different phases as well.
Hypothetically, let’s just say that a child was neglected by his parents. The state intervened, the parents received counseling and help, and now they want to be given a second chance (under supervision) to be better parents. What should the court’s decision be? Everyone makes mistakes. Have these people learned from theirs and now they are better? The courts may be causing unintentional harm to the child by not reuniting him with parents that may be ready to prove how they’ve changed.
