Current Definitions in Federal Law:
Federal legislation provides a foundation for States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. §5106g), as amended by the Keeping Children and Families Safe Act of 2003; defines child abuse and neglect as, at minimum:
Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act which presents an imminent risk of serious harm.
This definition of child abuse and neglect refers specifically to parents or other caregivers. A “child” under this definition generally means a person who is under the age of 18 or who is not an emancipated minor.
While CAPTA provides definitions for sexual abuse and the special cases related to withholding or failing to provide medically indicated treatment, it does not provide specific definitions for other types of maltreatment such as physical abuse, neglect, or emotional abuse. While Federal legislation sets minimum standards, each state is responsible for providing its own definition within civil and criminal contexts.
Child abuse is harm to, or neglect of, a child by another person, whether adult or child. Abuse can happen in any family, regardless of any special characteristics such as cultural, ethnic, or income. Child abuse can be physical, emotional – verbal, sexual or through neglect. Abuse may cause serious injury to the child and may even result in death.
I have examined the laws in all fifty states and in general they use the basic definition of the Federal Law. They then have an assortment of guidelines defining specifics. They vary from state to state and unfortunately county to county as well as the state guidelines are just that…guidelines.
I have also noticed that neither the Federal law nor state laws address whether a person acts intentionally, knowingly or willingly as opposed to accidental. The definitions of “abuse and neglect” have become so broadly defined that almost anybody could have such a charge made against them.
You may find current state laws by clicking below…they also address 38 other subjects as it relates to child welfare.
I addressed before in my entry, “False Allegations & CPS” that one of our current problems is due to the lack of uniformity of laws/guidelines defining what child abuse/neglect is. I feel they should be uniform. What is abuse/neglect in one county or state should be the exact same in another. This is one subject where one size should fit all.
Below, after consulting with many people and completing my own research, I have written what I feel could be the law across the country if the US Congress would pass such legislation applicable across the country. I also address a few other issues that may relate to the topic.
Physical abuse, which is 18% of all substantiated cases of child abuse, is the most visible form of abuse.
It should be defined as: An intentional or knowingly or willful physical act by any adult of a child which results in a non-accidental trauma, serious physical injury or death of the child. It may also apply to any adult who wintesses these acts and intentionally or knowingly or willfully and fails to protect the child.
Inflicted physical injury most often represents unreasonable, severe corporal punishment or unjustifiable punishment. Such injuries can be caused by: striking, shaking throwing, punching, beating, kicking, biting, burning or otherwise harming a child.
This also includes but is not limited to: unnecessary, illegal, or excessive prenatal drug exposure.
While any of these injuries can occur accidentally when a child is at play, physical abuse should be suspected if the explanations do not fit the injury or if a pattern of frequency is apparent. Physical abuse thus could also be unexplained or repeated injuries such as welts, bruises, or burns; injuries that are in the shape of an object (belt buckle, electric cord, etc.); injuries not likely to happen given the age or ability of the child (IE: broken bones in a child too young to walk or climb); unreasonable explanation of the injury.
See below on how these allegations should be handled
It is very difficult for most people to talk about sexual abuse and even more difficult for society as a whole to acknowledge that the sexual abuse of children of all ages — including infants — happens everyday in the United States. Sexual abuse; is 10% of all substantiated cases of child abuse.
It is should be defined as: Any involvement with a child by an adult in sexual activity to provide sexual gratification or financial benefit to the perpetrator, including contacts for sexual purposes: molestation, statutory rape, prostitution, pornography, exposure, incest, exhibition, fondling, sexual intercourse, oral copulation or other sexually exploitative activities. It may also apply to any adult who witnesses such acts and intentionally or knowingly or willfully fails to protect the child.
Examples of such possible actions covered:
Non touching sexual abuse offenses include:
» Indecent exposure/exhibitionism
» Exposing children to pornographic material
» Deliberately exposing a child to the act of sexual intercourse
» Masturbation in front of a child
Touching sexual offenses include:
» Making a child touch an adult’s sexual organs or oral copulation
» Any penetration of a child’s vagina or anus by an object that doesn’t have a medical purpose
Sexual exploitation offenses include:
» Engaging a child for the purposes of prostitution
» Using a child to film, photograph or model pornography
Note that the words intentional, willingly and knowingly is NOT included in the definition for sexual abuse. Any person who would engage in such activity with a child would automatically be doing so intentionally, knowingly and willfully.
See below on how these allegations should be handled
Emotional abuse is 7% of all substantiated cases of child abuse. This is the most controversial area of childe abuse. Many feel including this type of abuse is telling parents how they should parent their child. However, statistics tells us that this type of abuse can destroy a child for a lifetime. The Federal government does include this in their definition of abuse; they however do not spell out what it may include, thus allowing CPS to define as they wish and usually in very broad terms.
It should be defined as: The systematic, intentional or knowingly or willful tearing down of a child by an adult over an extended period of time through rejection, humiliation, terrorization, ignoring, isolating, or corrupting. It may also apply to any adult who witnesses such acts and intentionally or knowingly or willfully fails to protect the child.
It is considered a pattern of behavior that can seriously interfere with a child’s positive development. Emotional abuse is probably the least understood of all child abuse, yet it is the most prevalent, and can be the cruelest and most destructive of most types of abuse.
Because emotional abuse attacks the child’s psyche and self-concept, the victim comes to see him or herself as unworthy of love and affection. Children who are constantly shamed, humiliated, terrorized or rejected suffer at least as much, if not more, than if they had been physically assaulted.
An infant who is being severely deprived of basic emotional nurturing, even though physically well cared for, can fail to thrive and can eventually die.
Types of Emotional Abuse:
Rejecting — Telling a child in a variety of ways that he or she is unwanted. They may tell the child to leave, call him or her names and tell the child he or she is worthless. They may not talk to or hold the young child as he or she grows. The child may become the family scapegoat, being blamed for all the family’s problems.
Ignoring — They may not show attachment to the child or provide nurturance. They may show no interest in the child, express affection or even recognize the child’s presence. Many times the parent is physically there but emotionally unavailable.
Terrorizing — Parents may single out one child to criticize and punish. They may ridicule him or her for displaying normal emotions and have expectations far beyond his or her normal abilities. The child may be threatened with death, mutilation or abandonment.
Isolating — A parent who abuses a child through isolation may not allow the child to engage in appropriate activities with his or her peers; may keep a baby in his or her room, not exposed to stimulation; or may prevent teenagers from participating in extracurricular activities. Parents may require the child to stay in his or her room from the time school lets out until the next morning, or restrict eating to isolation or seclusion.
Corrupting — Parents permit children to use drugs or alcohol; to watch cruel behavior toward animals; to watch pornographic materials and adult sex acts; or to witness or participate in criminal activities such as stealing, assault, gambling, etc.
See below on how these allegations should be handled
Child neglect, which is 65% of all substantiated cases of child abuse, is the most common form of child abuse currently reported to child protective services.
It should be defined as: The intentional or knowingly or willful failure by an adult over an extended period of time to provide needed age-appropriate care,” such as shelter, food, clothing, education, supervision, medical/dental/theroputic care and other basic necessities of a child. It may also apply to any adult who witnesses such acts and intetionally or knowingly or willfully fails to protect the child.
The types of neglect:
Physical neglect — accounts for the majority of cases of neglect. The definition includes the failure to provide proper shelter, food or clothing, delay in seeking necessary health care, child abandonment, inadequate supervision, and failing to adequately provide for the child’s safety.
Educational neglect – allowing a child to engage in chronic truancy when the child is of mandatory school age but not enrolled in school or receiving needed special educational training.
Emotional neglect — includes such actions as having the child being exposed to chronic or extreme spousal abuse in the child’s presence, allowing a child to use drugs or alcohol, refusal or failure to provide needed psychological care, constant belittling and withholding of affection.
Medical neglect — is the failure to provide appropriate health care for a child although financially able to do so. In some cases, a parent or caretaker will withhold traditional medical care during the practice of religious beliefs; these cases generally should not fall under the definition of medical neglect.
See below on how these allegations should be handled
How Allegations of Child Abuse/Neglect should be handled:
When an allegation of child abuse/neglect as defined above is made it should be turned over to the police as is every other crime. They, not CPS, should investigate and determine if there is sufficient credible evidence to come to the reasonable conclusion that intentional or knowingly or willful child abuse/neglect has occurred. If they determine this, then the alleged abuser must be charged. This also applies to anyone alleged to “fail to protect.”
Currently the accused has little or no rights where people charged with crimes are given the full spectrum of rights under our legal system. Those alleged must be given the opportunity to defend themselves under the same conditions an alleged criminal is allowed. If they cannot afford an attorney, one should be provided them.
A person found guilty in a court of law of one of the above should be sentenced to the fullest extent of the law. They should be placed on a national registry. A parent; biological, foster or adoptive upon conviction should have their parental rights terminated immediately. No one convicted of one of the above crimes should be given the opprtunity to abuse/neglect their child a second time.
If the police allege the crime of child abuse/neglect has intentionally or knowingly or willfully occurred in the parents home; the accused not the child should be removed from the home. If it is a single parent home, then the child will need to be removed for their safety. In this event every possible effort should be made to find kinship care to keep family ties intact if possible. Foster care should be the last resort.
If police find that there is not sufficient evidence to the allegation of child abuse/neglect, intentional or unintentional; the case must be closed and no further action is required…CPS and any other agency is NOT to become involved.
The allegation one I cannot fathom them not finding intentional, knowingly or willful if there is credible evidence that such allegation ocurred is Sexual Abuse.
Children, due to allegations of child neglect being made, (if age appropriate) should be interviewed as soon as possible after any allegation is made and before a determination is made by the police. All interviews should be conducted by appropriately trained police personnel and accompanied by an independent witness. ALL interviews MUST be taped (both audio and video). The purpose of the witness is to verify the interview has been fully taped; that is the tape started at the beginning and at no time during it course was it shut off until its conclusion.
Police, CPS or other workers involved in a case MUST be held accountable for their investigations and disposition of cases. If they perjure themselves at any point of a case, been negligent in their responsibilities or their actions result in further harm or death to a child; they must be held accountable up to and including criminal charges.
If police find reasonable evidence that some type of abuse/neglect did occur but they determine it was NOT intentional or knowingly or willful; they will turn the matter over to the appropriate agency to determine and provide beneficial for the child/family as a result of needs discovered during the course of the investigation. (See Below)
Poverty, low income, lack of formal education or other things that may fall in these definitions does not automatically define neglect and warrant the child being placed at risk and removed from their home.
Underlying some of the current removal decisions is the unexpressed belief that they are “saving” this child from a life of lower-class poverty, by placing the child in a “good” home, one that more resembles what they themselves think of as a good family.
What they need to realize is that poverty and lack of education or job prospects are not indicators in and of themselves that the parent cannot provide the love and meet the child’s basic needs and teach him/her right-from-wrong.
Many times when there is a dirty home, little food in the home, or children dirty may just mean the parents need knowledge of programs that may be available to them or assistance in helping them be better parents.
These services should be home based with the child remaining in the home if not at further risk.
Home-Based Services: In-home activities provided to individuals or families to assist with household or personal care and improve or maintain adequate family well- being. Services may include homemaker chores, home maintenance, nutrition and meal planning, and household management services; to name just a few.
Parents should be offered, one, one year case plan to improve their situation. If they fail to meet the case plan in one year, drop their case plan during the course of the year, renew their activities which lead to new allegations of child physical abuse, emotional abuse or child neglect; their action would automatically cause such allegations to be deemed intentional, knowingly or willful (if police deem there is sufficient evidence) and they would be charged accordingly and their rights accordingly would apply. If convicted the same result would apply as to those who were found guilty in a court of law during an initial investigation.
http://www.larrya.us (my web site)