Legal Issues in Child Abuse and Neglect Practice, 2nd Edition
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Copyright © 1998 by Sage Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by
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information storage and retrieval system, without permission in writing from the publisher.
For permission to reprint copyrighted material the author and publisher gratefully
acknowledge the following:
Goodman, G. S., & Clarke-Steward, A. (1991). Suggestibility in children's testimony:
Implications for child sexual abuse investigations. In J. Doris (Ed.), The suggestibility
of children's recollections. © 1991 by the American Psychological Association. Re-
printed by permission.
Spencer, J. R., & Flin, R. (1990). The evidence of children: The law and the psychology. ©
1990 by The Blackstone Press, London. Reprinted with permission.
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Library of Congress Cataloging-in-Publication Data
Myers, John Ε. B .
Legal issues in child abuse and neglect practice / by John Ε. B . Myers. — 2nd ed.
p. cm. — (Interpersonal violence)
Includes bibliographical references and index.
ISBN 0-7619-1665-2 (cloth : acid-free paper) — ISBN 0-7619-1666-0 (pbk.: acid-
free paper)
1. Child abuse—Law and legislation—United States—Trial practice. I. Title. II. Series.
KF9323 .M94 1998
344.73Ό3276—ddc21 98-9022
This book is printed on acid-free paper.
98 99 00 01 02 03 04 10 9 8 7 6 5 4 3 2 1
Acquiring Editor: C. Terry Hendrix
Editorial Assistant: Dale Mary Grenfcll
Production Editor: Astrid Virding
Editorial Assistant: Denise Santoyo
Typesetter/Designer: Rose Tylak
Cover Designer: Candice Harman
Contents
1. Prevalence and Effects of Child Maltreatment 1
Physical Abuse 2
Definition of Physical Abuse 2
Prevalence and Effects of Physical Abuse 2
Corporal Punishment 3
Neglect 7
Sexual Abuse 8
Prevalence and Characteristics of Sexual Abuse 8
Short- and Long-Term Effects of Sexual Abuse 10
Psychological Treatment For Sexually
Abused Children 17
The Long Tradition of Disbelieving Women and
Children Who Claim to Be Victims of Sexual Abuse 18
Research on Fabricated Allegations of
Child Sexual Abuse 30
2. The Child Protection System 36
A Brief History of Child Protection in the United States 37
The Colonial Period 37
The 19th Century: Birth of Organized Child Protection 38
The 20th Century: Transformation From
Private to Government Child Protection 41
Contemporary Child Protection 42
The Adversary System of Justice 43
Overview of the American Legal System 45
The Government Interest in Child Protection 45
The U.S. and State Constitutions 46
Federal and State Statutes Relating to
Child Abuse and Neglect 47
Regulations 47
Common Law 48
The Judicial System 48
The Criminal Justice System 51
The Reddings' Story 52
Child Protective Services and the Juvenile Court 68
Child Protective Services 68
The Juvenile Court 68
Family Court: Divorce and Child Custody 70
Is An Attorney Necessary to Get a Divorce or Custody? 70
The Legal Effect of a Divorce 71
A Word of Caution 78
Future Modification of Child Custody or Visitation 78
Three Laws Intended to Protect Children 79
Sex Offender Registration Laws 79
Megan's Law: Public Notification
of Sex Offenders Living in the Community 80
Involuntary Psychiatric Hospitalization of
Dangerous Sexual Predators 81
3. Child Abuse Reporting Laws 82
Who Is Required to Report? 83
Mandatory Reporting: No Discretion 84
Permissive Reporting: Discretion Allowed 84
Definitions of Abuse and Neglect 85
What Level of Suspicion Triggers Mandatory Reporting? 85
Do Mandated Reporters Report? 88
Factors Influencing the Decision to Report 89
Is The Evidence Sufficient? 89
Will Reporting Do More Harm Than Good? 90
Will Reporting Undermine Therapy? 90
How Serious Is the Maltreatment? 92
What Kind of Abuse Is It? 92
How Clear Is the Law in This Case? 92
How Old Is the Child? 92
Informed Consent, Confidentiality, and Forewarning 93
Liability Related to Reporting Suspected
Child Maltreatment 93
Liability for Failure to Report 94
Liability for Reporting 96
General Guidelines Regarding Reporting 98
Are There Alternatives to Universal Mandatory Reporting? 98
Two Problems for Your Consideration 100
Five-Year-Old Sally 100
Bill's Confession 101
Investigative Interviewing Regarding Child Maltreatment 102
The Attack on the Interviewer 103
Interviewing 105
Children's Memory Capacity 105
Suggestibility 114
The Vocabulary of Investigative Interviews 123
Recreating Context: Props and
Anatomically Detailed Dolls 126
Proper Interview Practices 129
The Interviewer's Dilemma 136
Interview Practices to Be Avoided 142
Effect of Multiple Interviews on Memory 143
Cognitive Interview, Narrative Elaboration, and
Criteria-Based Content Analysis 148
Documentation of the Child's Competence
to Be a Witness 152
Investigating Suspected Child Abuse 153
Hearsay: Gathering Verbal Evidence of Abuse 153
Defining Hearsay 154
Exceptions to the Rule Against Hearsay 157
The Importance of Documentation 166
Summary 168
Multidisciplinary Investigation: Specialized
Centers to Interview Children 168
Research on Multidisciplinary Investigation 169
Videotaping Investigative Interviews 172
Arguments for Videotaping 173
Arguments Against Videotaping 175
Summary 177
Bizarre, Fantastic, Ritual, and Satanic
Allegations of Abuse 178
Satanic Conspiracies? 179
Children's Allegations That Are Bizarre,
Improbable, or Impossible 181
Investigating Multiple-Victim Cases 191
6. Balancing the Need for Confidentiality and
the Requirements of Disclosure 192
Defining Confidentiality 193
The Importance of Confidentiality 194
Three Sources of Confidentiality 194
The Ethical Duty to Protect Confidential
Client Information 195
Laws Making Client Records Confidential 196
Privileges in Legal Proceedings 197
Confidentiality When the Client Is a Child 203
Confidentiality and Privilege in Group Therapy 204
Informed Consent 206
Children and Informed Consent 207
Explaining the Limits of Confidentiality
Is Part of Informed Consent 207
Raw Psychological Test Data 208
Managed Care, Informed Consent, and Confidentiality 209
Disclosure of Confidential and Privileged Information 209
Client Consent 209
Subpoenas 211
A Criminal Defendant's Constitutional
Right to Confidential Records 213
Reviewing Client Records Before Testifying 214
Education Records 214
Child Abuse Reporting Laws 215
The Dangerous-Client Exception to Confidentiality 215
Emergencies 219
Court-Ordered Psychological Evaluation 219
The Patient-Litigant Exception to Privilege 219
7. Expert Testimony 221
Lay and Expert Witnesses 222
Therapy vs. Forensic Evaluation: Avoiding
Avoidable Dual Relationships 222
Evidence Defined 228
Substantive Evidence and Credibility Evidence 229
Substantive Evidence 229
Credibility Evidence 229
Expert Testimony in Criminal and Noncriminal
Proceedings 231
Metaprinciples of Expert Testimony 231
Honesty 232
Evenhandedness 232
Limits of Expertise 233
Preparation 234
Qualifying to Testify as an Expert 234
The Form of Expert Testimony 235
Opinion Testimony 235
The Hypothetical Question 237
Expert Testimony Providing Background Information 238
Combining Forms of Expert Testimony 238
Information on Which Experts May Rely for Testimony 239
Expert Testimony Based on Novel Scientific Principles 239
General Acceptance—Frye 239
Relevance Analysis—Daubert 240
Does Frye or Daubert Apply to
Mental Health Testimony? 241
Physical Abuse 242
Expert Medical Testimony on Cause of Injury 243
Battered-Child Syndrome 243
Shaken-Baby Syndrome 244
Munchausen Syndrome by Proxy 244
Neglect 245
Medical Neglect 246
Psychological Neglect 248
Nonorganic Failure to Thrive 248
Mentally Retarded Parents 249
Psychiatrically Disabled Parents 249
Physically Disabled Parents 249
Drug Abuse as Neglect 249
General Neglect—"Filthy Home" Cases 250
Abandonment 251
Educational Neglect 251
Sexual Abuse 251
Medical Evidence of Child Sexual Abuse 251
Expert Testimony Based Largely on
the Psychological Effects of Sexual Abuse 251
Expert Testimony Regarding Developmental
Differences Between Children and Adults 270
Expert Testimony Regarding the Alleged Perpetrator 271
Expert Testimony About Psychological Syndromes 274
Conclusion 278
Two Cases of Expert Testimony for Your Consideration 278
Commonwealth v. Spring 279
Commonwealth v. Milton 280
8. Cross-Examination and Impeachment:
Special Accommodations When Children Testify 282
Impeachment of Lay Witnesses 284
Impeachment With the Witness's Prior
Inconsistent Statements 284
Bias 284
Evidence That the Witness Has a
Character Trait for Untruthfulness 285
Conviction of Certain Crimes 285
Defects in Capacity 285
Inadequate Opportunity to Observe Events 285
Impeachment of Expert Witnesses 286
Avoid the Frontal Attack 286
Conduct a Positive Cross-Examination 286
Raise Doubts About the Expert's Testimony, and Save
Those Doubts for Closing Argument to the Jury 287
Undermine the Expert's Assumptions 290
Impeach an Expert With a "Learned Treatise" 292
Raise the Possibility of Bias 292
Summary 293
Limits on Cross-Examination 294
Reviewing Client Records in Preparation for Testifying 294
Special Accommodations for Children Who Testify 294
9. Liability of Professionals 298
Settings for Legal Action Against Professionals 299
Civil Actions Against Professionals 299
Administrative Law Proceedings 300
Criminal Prosecution 301
Malpractice and Negligence 301
Breach of Professional Responsibility 301
Negligence 302
Malpractice 309
State Law as a Basis of Civil Liability 316
Constitutional Rights 317
Parental Rights Under the Constitution 319
Sources of Government Authority to
Intervene in the Family 321
How U.S. Constitutional Rights Are Enforced in
Court: Section 1983 321
Immunity From Liability 323
Analysis of Problems 334
Sally's Case (Chapter 3) 334
Bill's Confession (Chapter 3) 335
Commonwealth v. Spring (Chapter 7) 335
Commonwealth v. Milton (Chapter 7) 336
Smith v. Alfred and Jones (Chapter 9) 337
Appendix A: American Professional Society on the
Abuse of Children, Practice Guidelines, Use of
Anatomical Dolls in Child Sexual Abuse Assessments 339
Appendix B: Sample Protective Order for Videotapes
of Investigative Interviews on Child Abuse 352
Appendix C: American Professional Society
on the Abuse of Children, Guidelines for
Psychosocial Evaluation of Suspected
Sexual Abuse in Young Children 354
Appendix D: ABCs of Coping with Cross-Examination 364
References 367
Index 399
About the Author 412
For Willie and Eric
You're the greatest!
Also for David L. Corwin, M.D.,
a pioneer in child protection, and
the guy who got me started in this field
Last, but by no means least,
this book is for Lucy Berliner, M.S.W.,
friend, mentor, counselor, inspiration,
and very cool woman
Prevalence and Effects
of Child Maltreatment
Child abuse is a scourge on children that inflicts incalculable suffer-
ing. What's more, child abuse is ugly. It makes us wince and avert
our eyes. During the past 35 years, however, society has stopped
closing its eyes to the reality of child abuse. Citizens from all walks
of life—politicians, professionals, parents—have said, "We've got to
do something about this. Our kids deserve better." They're right, of
course. Kids deserve love, support, encouragement, and friendship,
not apathy, violence, ridicule, and abuse.
As I said, during the past 35 years, society has come to take child
abuse seriously. But have we eliminated abuse? Hardly. If the efforts
of the past three decades had succeeded completely, you could toss
this book in the trash and go for a walk. Unfortunately, the book is
still relevant. Child abuse remains a serious social ill.
This book is about law. The law cannot solve the problem of child
abuse. The solution, if there is one, lies in classrooms and clinics, not
courtrooms. Nevertheless, the law plays many roles in making life
1
2 LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE
better for children. The judges, lawyers, police officers, and probation
and parole officers administering the legal system share goals with
the social workers, nurses, physicians, educators, mental health pro-
fessionals, and others laboring to protect children. Too often, how-
ever, a gap separates legal professionals from helping professionals.
My goal in this book is to bridge that gap by giving nonlawyers
information that will help them interact effectively with the legal
system. Effective communication and cooperation between helping
professionals and the legal system goes a long way toward child
protection.
A book on legal issues is not the place for extensive analysis of the
prevalence and effects of child abuse. Yet no book on child abuse is
complete without some discussion of the scope of the problem. This
chapter, therefore, briefly reviews the literature on the prevalence
and impact of child abuse and neglect.
• Physical Abuse
Physical abuse is common. "Parental maltreatment is a severe
social problem that affects children all over the world" (Cerezo, 1997,
p. 215).
DEFINITION OF PHYSICAL ABUSE
Physical child abuse is nonaccidental physical injury. Legal defini-
tions of physical abuse are found in three places: (a) criminal codes,
(b) statutes governing the juvenile court, and (c) child abuse report-
ing laws (see Chapter 3).
PREVALENCE AND EFFECTS OF PHYSICAL ABUSE
Children are kicked, punched, clubbed, burned, starved, poisoned,
and otherwise abused in every way you can imagine and some you
can't. It is difficult to know the true prevalence of physical abuse.
Physically abused children are at increased risk of mental health
problems as they grow up (Fergusson & Lynskey, 1997; Styron &
Prevalence and Effects of Child Maltreatment 3
Janoff-Bulman, 1997). As Whipple and Richey (1997) observe, "The
impact of a physically abusive childhood is profound" (p. 432). Some
physically abused children batter their own children (Malinosky-
Rummell & Hansen, 1993). Bower and Knutson (1996) state that "a
history of abuse has become acknowledged as a risk factor for child
maltreatment" (pp. 696-697).
Every year, more than a thousand children die from abuse or severe
neglect (Daro & Lung, 1996). "Although such deaths are relatively
infrequent, the rate of child maltreatment fatalities confirmed by CPS
[child protective services] agencies has risen steadily over the past
eight years" (Daro & Lung, 1996, p. 7). Official reports probably
underestimate the scope of fatal abuse and neglect (Ewigman, Kivla-
han, & Land, 1993). The actual number of children killed each year
in the United States may be closer to 5,000 (Levitt, Smith, & Alexander,
1994). Fatal child abuse is particularly common among very young
children and babies (Brewster et al., 1998; Kirshner & Wilson, 1994).
Approximately 50% of fatalities are children under age 1 (McClain,
Sacks, Froehlke, & Ewigman, 1993).
CORPORAL PUNISHMENT
Most American parents use corporal punishment (Edwards, 1996;
Graziano, Lindquist, Kunce, & Munjal, 1992). More than 90% of
children are physically punished at some time (Flynn, 1996). The rate
of corporal punishment against adolescents is between 33% and 50%
(Graziano & Namaste, 1990; Straus & Kantor, 1994). Corporal pun-
ishment is less prevalent in some countries than others (Fergusson &
Lynskey, 1997). The situation in the United States was summarized
by Graziano and Namaste (1990):
Slapping, spanking, paddling and, generally, hitting children for pur-
poses of discipline are accepted, pervasive, adult behaviors in U.S.
families. In these instances, although physical attack and pain are
involved between two people of vastly different size, weight, and
strength, such behavior is commonly accepted as a proper exercise of
adult authority over children.
With the exception of warfare, self-defense, and the often necessary
use of force by the police, no human interactions other than adult-child
interactions carry such clear social supports for the unilateral use of
4 LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE
physical punishment by one party on another. Similar behavior be-
tween, for example, an employer and an employee carr[ies] clear
proscriptions and can readily provide the basis for civil and/or crimi-
nal actions brought by the victim. Children, it seems, have been
singled out from among all groups in American society as the recipi-
ents of such treatment, (p. 450)
In 1996, the American Academy of Pediatrics published a consen-
sus statement on the short- and long-term consequences of corporal
punishment. According to this statement,
Spanking is not recommended in infants and children under 2 years
of age because escalation, should it occur, carries a greatly increased
risk of causing physical injury.
There are no data bearing on the effectiveness of spanking to control
misbehavior short-term in the average family. Limited data on
preschool-children with behavior problems suggest that spanking
may increase the effectiveness of less aversive disciplinary techniques.
Data relative to the long-term consequences of spanking of preschool
children are inconclusive
Currently available data indicate that corporal punishment..., when
compared with other methods of punishment, of older children and
adolescents is not effective and is associated with increased risk for
dysfunction and aggression later in life
Concerning forms of corporal punishment more severe than spank-
ing in infants, toddlers, and adolescents, the data suggest that the risk
of psychological or physical harm outweigh any potential benefits.
In 1998, the American Academy of Pediatrics moved beyond the
1996 consensus statement (Committee on Psychosocial Aspects of
Child and Family Health, 1998). In a report titled "Guidance for
Effective Discipline," the Academy states:
Despite its common acceptance, and even advocacy for its use, spank-
ing is a less effective strategy than time-out or removal of privileges
for reducing undesired behavior in children. Although spanking may
immediately reduce or stop an undesired behavior, its effectiveness
decreases with subsequent use. The only way to maintain the initial
effect of spanking is to systematically increase the intensity with which
it is delivered, which can quickly escalate into abuse. Thus, at best,
spanking is only effective when used in selective infrequent situations.
Prevalence and Effects of Child Maltreatment 5
Because of the negative consequences of spanking and because it
has been demonstrated to be no more effective than other approaches
for managing undesirable behavior in children, the American Acad-
emy of Pediatrics recommends that parents be encouraged and
assisted in developing methods other than spanking in response to
undesirable behavior, (p. 726)
The law allows parents to use "reasonable" corporal punishment
against their children. Although the term reasonable corporal punish-
ment sounds like an oxymoron to some, it is widely used. According
to the Iowa Supreme Court, "Parents do have a right to inflict
reasonable corporal punishment in rearing their children" (Hildreth
v. Iowa Department of Human Services, 1996, p. 159). A California
statute states that physical abuse "does not include reasonable and
age appropriate spanking to the buttocks where there is no evidence
of serious physical injury" (Cal. Welfare and Institutions Code § 300).
When does corporal punishment exceed "reasonable" limits and
become abuse? Whipple and Richey (1997) observe that "despite
decades of research on physical child abuse, remarkably little is
known about where to draw the line between permissible forms of
physical punishment and actual abuse" (p. 431). In People v. White-
hurst (1992), the California Court of Appeals stated:
A parent who wilfully inflicts unjustifiable punishment is not immune
from either civil or criminal prosecution Corporal punishment is
unjustifiable when it is not warranted by the circumstances, i.e., not
necessary, or when such punishment, although warranted, was exces-
sive. "Both the reasonableness of, and the necessity for, the punish-
ment is to be determined by a jury, under the circumstances of each
case." (pp. 35-36)
As the court stated in Whitehurst, cases turn on their unique facts
(see Whipple & Richey, 1997). Judges consider the child's age, the
type of discipline inflicted, the means used, the degree of injury or
pain, and the number of episodes (Whipple & Richey, 1997).
Corporal punishment has harmful long-term effects for some chil-
dren (Flisher et a l , 1997). According to Flynn (1996), "Recent studies
have suggested that a host of potentially harmful behavioral and
psychological consequences may result from so-called 'ordinary'
6 LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE
physical punishment. These negative outcomes include alcohol
abuse, depression, suicidal thoughts, behavioral problems, low
achievement, and future economic insecurity" (pp. 59-60). On the
other hand, Fergusson and Lynskey (1997) found that "occasional or
mild use of physical punishment" is unlikely
to have "either beneficial or detrimental
AdultS Who Were effects on longer term adjustment" (p. 628).
physically punished I* 1 a
study of 6,002 American families,
CIS teenagers Were Straus and Kantor (1994) examined the asso-
χ ±U' u ciation between corporal punishment during
more llKeiy tO tninK adolescence and later mental health prob-
about Suicide and lems. They concluded that "corporal punish-
tnore likely tO abuse ment in adolescence is associated with a sig-
alcohol. nificantly increased probability of depressive
symptoms as an adult" (pp. 550-551). Adults
who were physically punished as teenagers
were more likely to think about suicide and more likely to abuse
alcohol (see Wagner, 1997). Straus and Kantor (1994) found that "the
more corporal punishment the subjects experienced when they were
teenagers, the greater the risk that they will go beyond ordinary
corporal punishment to acts that are severe enough to be classified
as physical abuse" of their own children (p. 555).
In his classic 1978 paper titled "The Myth of Classlessness," Pelton
(1985) described "substantial evidence of a strong relationship
between poverty and child abuse and neglect" (p. 24) and asserted
that "abusing and neglecting families are the poorest of the poor"
(p. 28). Recent research by Fergusson and Lynskey (1997) confirm the
relationship between severe physical punishment/abuse and socio-
economic circumstances. These authors reported "clear differences
in childhood environments" in subjects who had different exposures
to physical punishment or maltreatment:
In general, those reporting overly frequent punishment, harsh, or
abusive treatment more frequently came from demographically dis-
advantaged homes, experienced a higher rate of other childhood and
family adversities, and were more often exposed to childhood sexual
abuse. These results clearly suggest that the elevated rates of adjust-
ment problems in this group may have been largely or wholly due to
