Founder, Justice for Children
Congressman Major R. Owens at the opening of a field hearing on child sexual abuse in New York on April 20, 1992, stated “Ignoring or mistreating child sexual abuse is tantamount to allowing an untreated cancer to grow in our society.” At that hearing, experts and parents testified concerning the obstacles to addressing and remedying this problem. 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.
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.
Unfortunately, over seven years have passed since these hearings, yet, reports of child abuse and neglect nationwide continue to rise. This increase is the direct result 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 fight for themselves.
I. THE FAMILY COURTS
A major portion of our legal system’s failure to protect abused children occurs in state family courts. Understandably, 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, or, if the abuse is discovered post-divorce, seeks to restrict or eliminate visitation privileges. Unfortunately, the judicial system from which the protective parent and child are seeking justice and protection is comprised of judges and court personnel who lack sufficient training in child abuse issue and are often indifferent to the child’s allegations of abuse, particularly allegations of sexual abuse. This is so despite numerous national studies indicating that the number of false allegations of sexual abuse in custody cases is de minimis. Mental health professionals and attorneys ad litem are often appointed by judges in return for campaign favors and tend to be mere puppets of the court. Further, critical court decisions can 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 is given little or no consideration and the abuser is frequently given unrestricted visitation with the child, if not outright possession. Child abuse, whether sexual or physical, and child protection becomes only incidentally a custody question.
Traumatized originally by the perpetrator, the child is victimized again by the legal system designed to protect him/her. This legal system was originally put into place in order to identify children who had been abused or severely neglected by their parents or caretakers, remove those children at risk of further abuse or neglect and place them in protective custody (or terminate parental rights and place the child with adoptive parents), and bring perpetrators of child abuse and criminal neglect before the bar of justice. However, since its creation, this system has devolved into one where incompetent, ineffective, overwhelmed, and sometime corrupt government officials and entire bureaucracies, who are accountable to no one, are making decisions resulting in abused and neglected children being left in dangerous homes.
Although an alarming picture of the family courts’ failure to protect children has already developed, the best evidence in support of this, particularly in cases involving parents attempting to save their children from further abuse, often involves court proceedings wherein the records have been sealed. Allegations of altered transcripts, altered or destroyed government documents, ex parte communications, and hearings held and orders issued without court reporters are not limited to the few highly publicized child abuse cases which make national news but are being heard throughout nation. Statistical data in support of this failure and its impact on our nation is overwhelming.
II. CHILDREN’S PROTECTIVE SERVICES
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 abuse or neglect, were never investigated by CPS. 1993 records from Children’s Protective Services (“CPS”) show that almost 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. 90% of those children were age 5 or younger. And, 42% of the children who died had been previously reported to CPS as being in danger.
These preventable child deaths are not merely the result of incompetency 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 understanding why we are failing the abused child is the fact that children who are victims of crimes are treated differently from all other victims of crimes. Only in instances of crimes against children does our law enforcement establishment allow CPS, a social service agency, lacking law enforcement training, experience, and priorities to receive the initial report of abuse, to 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 if to remove the child from harm’s way has proved to be a fatal error by law enforcement. Whereas police agencies measure their response time to the scene of adult crimes in minutes (and child abuse cases invariably 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 their own guidelines to make the crime scene in 24 hours!
Worse yet, 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 at the child’s expense. Unfortunately, few of such experiments have shown to be successful. Rates of reabuse in such homes are astronomically high.
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 abuse victim is kept in the same home with the person whom they may testify against and perhaps send to prison, the child often forgets or “recants” the allegations. This would be no different than forcing an adult victim of rape or battery to live with their rapist or batterer during the pendency of the criminal investigation, except that children are placed in even greater danger. It is inherently contradictory to have the same agency responsible for the investigation of a crime and protection of the child, on the one hand, and the preservation of the abusive family on the other! 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 have experienced “system failures” with CPS, a national consensus has developed that this family preservation agenda is risky and unworkable, and that children must be removed from homes whenever they are abused or neglected. This attitude is strongly supported by research from the social sciences. While some efforts to rehabilitate parents who neglect or abuse their children have been successful, the results have never been predictable. In fact, the overwhelming statistical and clinical evidence indicates that most child abusers will continue to abuse, regardless of rehabilitation programs. 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.
III.THE DISTRICT ATTORNEYS OFFICE
Because CPS is the inlet point for virtually all child abuse complaints, their efforts effect 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. CPS’s misplaced priorities become the de facto priorities of the entire system.
Since child abuse cases are notoriously difficult to prosecute, the District Attorney’s office is often less aggressive on these matters than other “whale 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 assault or fondling cases, the physical evidence can be non-existent or at least controvertible. Of course, child witnesses are also the most intimidated by the legal process and the most easily intimidated by a criminal defense attorney with the perpetrator by his side “confronting” the child accuser.
A 2000 review of statistics prepared by the Harris County District Attorney’s Office, indicate an appalling lack of attention to even the most serious child abuse cases. Moreover, the cases that are accepted for criminal charges represent roughly 1/2 of 1% of all the reports made to the State Child Abuse Hotline or to local CPS offices. See the attached report for greater detail.
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 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 morally bankrupt and 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.
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, are 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 actual and systemic abuse of the child.
Randy Burton, founder and president of the child advocacy organization Justice for Children, has attained national recognition for his work to protect abused and neglected children from further abuse. Justice for Children, which is headquartered in Houston, Texas, advocates for those victims of child abuse and neglect who have fallen through the cracks of the system designed to protect them. 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, the Houston Young Lawyers Award for Outstanding Young Lawyer of Houston, and the first annual Kim Houston Award given by the Victim’s Resource Institute at the University of Houston.