Dealing with Child Abuse, the Red Herring

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Dealing with Child Abuse,

the Red Herring1 of Child Welfare

From the outset, the current system is fueled by an inclination to investigate parents to find evidence that they are to blame for the harms and dangers befalling their children, and the balance in the dual role is tipped toward the investigative/coercive/child removal role to the detriment of the helping role. Attention is deflected from the context of poverty in which most families live who are reported to the agency.

LeRoy Pelton, “Beyond Permanency Planning”

Although not originally a concern of the residual model, child abuse is today the principle focus of child welfare agencies, to the exclusion of nearly all other issues. How and why this happened is no mystery, since child abuse represents the extreme, logical focus of the residual approach. If the residual model seeks to help the socially excluded—the outcasts, the abandoned, the less fortunate—the abused child is the perfect client, since he or she is excluded in a way that no one else can be. While others may suffer poverty, neglect, prejudice, racism, the abused child is denied the most precious and necessary qualities human beings require when they awaken upon the earth—love and nurture from the parent. Child abuse that ends in death becomes the ultimate exclusion.

It should come as no surprise that in adhering to the residual perspective the child welfare profession has narrowed its focus almost exclusively to child abuse. Child abuse, especially severe physical and sexual assault, are high valence issues which draw our attention. All other concerns are set aside while focus is riveted on these horrific incidents. The irony is that the more effort, attention, and resources we devote to the problem, the less we achieve. The worse child abuse becomes, the more our obsession with it grows.

In untangling the problem of child abuse, we encounter a number of important and interrelated issues. Child abuse is not just a social phenomenon in and of itself but an issue that has affected child welfare practice as nothing else has ever done, transforming child welfare policy in a way that obscures the traditional focus of what child welfare is all about. Further, it has detrimentally affected the legal justice system, corroding and impeding the rights of families and individuals. Preoccupation with child abuse wastes valuable human and monetary resources, and daily deprives agencies of the ability to deliver services to others more appropriately in need of their services. By handing responsibility for dealing with severe physical and sexual assault over to the child welfare system, we deny children the protection the police would otherwise provide and, consequently, expose them to greater harm. By sidestepping the police we allow perpetrators to escape criminal sanction and prosecution, leaving them free to repeat their offense.

Scope of the Problem

The highly charged nature of criminal child abuse makes it difficult to find rational agreement on just how prevalent child abuse fatalities are. Large-scale studies all indicate that child abuse fatalities are relatively rare. The estimate of the National Incidence Study (Sedlak, 1991) that approximately 1,000 children a year die from child abuse corresponds with data reported from the National Center on Health Statistics (Select Committee on Children, Youth, and Families, 1989b) on deaths to children from homicide or “undetermined injury.” The figures from these studies closely match data reported by the American Humane Association, the Federal Bureau of Investigation, and the National Committee for the Prevention of Child Abuse (see Figure 5.2).

One of the most comprehensive in-depth reviews of child abuse fatalities was conducted by Cyril Greenland (1987). Working with extensive data from a study of 100 child abuse fatalities in Ontario, Canada, Greenland (1987, 19) observed, “With the passing of the rhetoric about the virtual epidemic of child-abuse deaths, it is reassuring to discover that abuse and neglect severe enough to maim or destroy young children is comparatively rare. However, due to the moral panic associated with child abuse, this conclusion may not be welcomed by the professional community.”

Greenland’s conclusion is supported by other statistics. Pryor (1991) reported that in 1990 in New York state less than 1 percent of all reports to child welfare agencies involved severe physical abuse. The state of New York implemented a Central Register for all child abuse and neglect reports and classified them as either abuse or maltreatment. For the decade 1981 to 1990 abuse reports accounted for about 10 percent of all reports registered (Pryor, 1991, table 3). In 1990, abuse accounted for 8.7 percent of all reports, while maltreatment accounted for 91.3 percent. The child abuse allegations are displayed by category in Figure 7.1.

Figure 7.1 Allegations Reported by Category, New York (1990)

When viewed within the larger scope of child welfare problems, serious physical and sexual assault affects a relatively small portion of children. Of the 3 million child abuse reports received a year, probably about 60,000 involve cases of severe physical child abuse, while approximately 1,000 children die from severe physical child abuse. When measured against the total number of children living in poverty (8,500,000) and extreme poverty (5,500,000), severe child abuse represents a small segment (see Figure 7.2).

Figure 7.2 Circumstances of Children in the United States, 1994

This data does not mean that criminal child abuse is not a severe and compelling problem, but it does compel us to ask: Are our efforts for the care and protection of children being channeled in the right direction? Is our definition of child abuse broad enough? Should child abuse be confined to the 1,000 children killed each year by their parents, or should it include the more than 14,000,000 children living in homes of poverty and despair?

As serious and often horrible as child abuse is, does it warrant the complete transformation of public child welfare from a system serving a broad range of disadvantaged children into one designed primarily to protect children from battering and sexual assault? Most children who come to the attention of child welfare agencies and who are the victims of neglect or inadequate care, but have not been battered or sexually assaulted, are, given the new priorities, virtually excluded from receiving assistance.

The abuse reporting laws enacted in the late 1960s and early 1970s did not include additional resources to meet the increased demand for services these laws produced.2 To fund the new demand for services, child welfare agencies changed the definition of who they serve. They now rarely respond to requests for service unless an allegation of abuse is involved, and even then the cases are screened over the phone to reduce investigative requirements. Requests for service or aid to families in distress or chronic crisis receive low priority and, in some instances, no response at all (Kamerman and Kahn, 1990).

Commenting on the almost exclusive focus on physical and sexual abuse, Greenland (1987) observed that “many child-protection agencies have little or no interest in the equally pernicious mischief caused to children by poverty and neglect. The challenge for the child welfare field in the next decade must surely be to deploy its resources, moral as well as economic and political, to promote the welfare of all children. Treating emotionally, physically, and sexually abused children who come to public attention is most important—but it is not enough” (p. xiii).

Popular Misconceptions about Threatened Children

Why agencies have a preoccupation with child abuse to the exclusion of almost everything else is not difficult to understand. Public outrage and fear, fanned by media coverage of horrifying incidents, have tended to grossly misrepresent the dimensions of the child abuse problem (Spector and Kitsuse, 1977). In 1978, then Congressman Paul Simon stated that “50,000 young people disappear each year, because of ‘stranger kidnapping.’ That is the most conservative estimate you will get anywhere.” (U.S. House of Representatives, 1981, p. 10). This statement was later embellished by others with such phrases as “there is general agreement among professionals” [that 50,000 children a year are kidnapped by strangers]. Although it was never clear where this figure came from, few questioned it. The more it was quoted, the more alarmed the public became. Pictures of missing children began appearing on milk cartons and grocery bags. In school, public education programs warned children of the perils of talking to strangers. The media, alert for a story that would sell (and often irrespective of its veracity), highlighted the most tragic cases of abducted children.3 Testifying to Congress (U.S. Senate, 1983), the father of one missing child reported, “This country is littered with mutilated, decapitated, raped, and strangled children” (p. 33). When runaways and children abducted in child custody disputes were included, the number of missing children swelled to 1.5 million. The emotional uproar made it difficult to objectively assess the problem of missing children.4 Anyone who questioned the facts or figures was suspected of lacking compassion for the plight of threatened children (Best, 1990).

In 1985, a Pulitzer prize-winning story in the Denver Post finally debunked the issue, suggesting that the problem of missing children had been blown completely out of proportion (Best, 1990). Using FBI statistics, the newspaper reported that in 1984 the number of child abductions by strangers was not 1,500,000 but 67. Commenting on these numbers, Gelles suggested, “The odds of a child being abducted by a stranger are about the same as his chances of being struck by lightning” (cited in Best, 1990). As suddenly as they had begun waving it, the media now dropped and furled the banner of missing children. As Best (1991) reports: “US News and World Report called the concern with missing children a ‘faddish hysteria,’ Harper’s referred to it as a ‘national myth’ (Schneider, 1987, 50); Nicholas von Hoffman in The New Republic mocked claims that there ever had been 1.5 million abductions a year: ‘In a decade, that means that 15 million children have gone through the doughnut hole into the anti-world.’”

Looking back now, we smile that such inflated statistics received public acceptance. Yet, child abuse represents a nearly identical situation. When even one child dies from abuse, the child welfare system comes under immediate scrutiny. How is this allowed to happen, the public demands? How many other children are being clubbed to death in their cribs? Are we wasting our money on these bungling child welfare bureaucrats? Over the last two decades, such questions have transformed child welfare agencies from benevolent, helping organizations into a quasi-legal, investigative, accusatory, protective service systems (Frost and Stein, 1989; Howells, 1975).

Investigation and Prevention of Child Abuse

The shift of responsibilities for investigating child abuse from the police to child welfare agencies has changed the practice of the courts (Donzelot, 1979). During the last decade the discretionary power of child welfare agencies has increased, as has court involvement in child welfare cases. With the courts and legal system behind them, child welfare caseworkers now exercise considerable authority to remove children from their biological parents. This power often intimidates the mother whose child is the subject of an abuse allegation, since she knows that the caseworker can call on the courts to enforce any requests the caseworker makes.

The removal of children from parents can occur in two ways. First, the parent may voluntarily release the child to the care of the child welfare social worker and agency, or second, if the parent refuses to cooperate voluntarily, the caseworker may petition the court to order placement.5 When a court becomes involved it makes both a jurisdictional and a dispositional judgment, decisions that may occur in varying time frames. The court assumes jurisdiction based not on specific harms to the child but on such descriptive criteria as observed parental behavior, apparent neglect or abuse to the child, and so on. Once jurisdiction is established, investigation of specifics commences. The dispositional judgement that follows an investigation, and which rests upon a standard known as “in the child’s best interest” (Wald, 1976, 629), decides upon a remedy based upon the specific harms to the child revealed by the investigation.

It is no exaggeration to say that caseworkers often establish jurisdiction through a subtle masquerade of benevolent intent. Knocking on a family’s door, they ask to “assess” the family situation, the implication being that services and aid may be forthcoming. It is an innocent request that once granted often backfires on parents who cooperate, for, if accepted, it establishes the caseworker’s legal jurisdiction. At any point thereafter “assessment” can turn into “investigation” and benevolent “inquiry” into “accusation.”6 As Giovannoni and Becerra (1979, 69-70) have observed:

The social workers have brought with them their special orientation to and definitions of the problems and modes of managing them. The nature of the ideal social work intervention is one of therapy and rehabilitation, not one of social control. Social workers’ authority rests on professional competence rather than legal authority. Justification for use of the authority is thus not customarily sought on legal grounds but rather on the grounds of the benefits to the clientele.

Given that most children are removed from their families not for abuse, or even severe abuse, but for reasons related to poverty, the upshot may be a dispositional judgement recommended by the caseworker and acceded to by the court, that the family neither expects nor deserves.

The relationship between the child welfare agency and the court should be understood. In many jurisdictions, the court and agency work hand-in-glove in the disposition of abuse and neglect cases. What the agency recommends, the court approves with minimal review, becoming, in essence, little more than a rubber stamp to the policies of the child welfare agency. It is not so much cynical indifference or corrupt collusion that promotes this but simple expediency. Because their dockets are full to bursting, the courts find it convenient to relinquish more and more decision-making authority to the child welfare professional. As the National Commission on Children (1991) reported, “Most judges have 35 to 40 cases on their individual calendars [every day], and they have an average of 10 minutes to spend on each case. Five years from now, with double the caseloads, the judges will have not 10 minutes, but five minutes to determine each child’s fate and each family’s future” (p. 283, citing Paul Blond, Presiding Judge at Los Angeles County Juvenile Court).

The muted objections of impoverished parents, too intimidated by the court process to vociferously defend their rights, are swept aside. “In acting symbiotically with the child welfare agencies, the courts have assumed the ‘coloration’ of social agencies” (Levine citing Eastman, 1973, 34). By allowing child welfare agencies to intrude into the lives of families where no “criminal” wrong doing exists, and to act on recommendations based on that intrusion, the courts have empowered the child welfare agency to act as their agent. In this regard, they have abandoned their duty to make independent and perhaps conflicting judgments apart from the agency. By invoking the courts in neglect and maltreatment situations, child welfare agencies have used the court to sanctify their actions. In the context of expediency, the court has failed to provide conventional safeguards. As a result, court involvement has become a corrosion of the legal system that is slowly undermining the rights of poor families and threatening traditional due process.

The Court as Independent Agent

The value of the court rests in its role as an independent and impartial party to determine if “criminal abuse” has occurred. The decision to remove a child from the home is not a technical question subject to the expertise of the child welfare social worker but rather a moral and legal determination belonging to the court, with the child welfare social worker providing expert testimony and advice. The proper role of the court is to protect the rights of children and parents, in which expert testimony in defense of the parents is also provided. With the involvement of child welfare caseworkers, whose primary efforts have been in the “best interests of the child,” the courts have too often proven more responsive to the recommendations of the caseworker than to the rights of the parent.7

Because the combination of benevolent and intrusive power held by the caseworker so confounds the caseworker’s relationship to the parents in abuse and neglect situations, Levine (1973) has argued that the worker should intervene only without application of legal authority, that is, only without the authority to take any jurisdictional or dispositional action. Although due process safeguards have been implemented at the hearing level in abuse and neglect cases, this still leaves open what may occur prior to entering the courtroom. Levine (1973, 37) argues that withholding procedural safeguards for families until the dispositional hearing occurs is too late (c.f. Besharov, 1990b). In establishing jurisdiction should caseworkers follow strict procedures that safeguard the parent? Until such procedures and safeguards are recognized, some legal theorists argue that the parent should not answer the door when the caseworker comes knocking.8

Blurring Abuse and Neglect

One of the most serious problems in the decision-making process is the merging of child abuse with child neglect. Child abuse and child neglect are two qualitatively different issues that should be treated in fundamentally different ways. Too often the boundary between child abuse, for which there should be clear legal grounds for criminal investigation and intervention, is blurred with child neglect, where issues of poverty and public policy arise. As a result, fuzzy decision-making often characterizes the actions of child protective services workers in child abuse cases.

Child abuse involves the intentional physical harm a parent inflicts upon a child.9 According to the residual view, the etiology of child abuse is found in the psychodynamic relationship between parent and child (Kadushin and Martin, 1981). Central issues include such things as family stress, inadequate understanding of child rearing approaches, an inability to properly manage the child, a proclivity toward or tolerance of violence, and so on.

Neglect involves improper care of children, which derives for the most part from the parent’s inability to provide properly for the child. The parents do not have sufficient economic means to furnish adequate food, medical care, clothing, shelter, and the like. In the United States, de facto neglect exists for at least 5 million children whose families have income less than one-half the poverty line.

Historically, child welfare agencies have operated from the principle that no child should be removed “for reasons of poverty,”10 which means that if at all possible children suffering neglect should be aided in their homes. The approach is not only less expensive but may be less harmful to the child than removal, since the psychological damage that may occur when a child is removed from his or her biological parents is potentially great.11 When a child is being severely physically or sexually abused, however, the question of removal is fundamentally different. Although it may be less expensive to retain the child in the home, the potential danger to the child is the greater issue, and removal is warranted.

In the last two decades child abuse and child neglect problems have converged into a combined category of “child abuse and neglect” or “child maltreatment.” This approach has led to conceptual confusion. By blending these two fundamentally different problems, we have diminished our ability to deal effectively with either. Caseworkers examining abuse and neglect allegations are increasingly unable to distinguish one from the other. As seen in the previous chapter, determinations on identical cases vary from caseworker to caseworker, from judge to judge. What predominates is not agreement but lack of consensus. In some cases children are removed from their families for poverty and neglect, while in others they are left in obviously abusive situations to face increasing violence and danger to their lives. As a result, abuse deaths continue unabated, while neglected, deprived, and dependent children are left without services.

If current approaches had proven successful in reducing child fatalities, we might have reason to be satisfied with the transformation of the child welfare system. However, as we have seen, the rate of child fatalities has continued to rise. Further, approximately half of the deaths from child abuse involve children known to the child protective service system. The failure to make progress in reducing harm to children requires us to question the current approach of reporting child abuse, especially severe child abuse, to public child welfare agencies.

What is required is a separation and clarification of the two issues of criminal abuse and neglect, accompanied by interventions tailored to the unique requirements of each (Pelton, 1992). Severe child abuse, which is a criminal act, should be reported to the police and prosecuted in the courts. It demands strict legal efforts to punish the abuser and provide protection to the abused. In contrast, child neglect requires the compassionate ear and helpful hand of the social worker, with the court playing only a minor role to resolve concerns about cases of abandonment or endangerment of the child, and then only after the parent’s rights have been safeguarded.

Currently, the decision to remove a child from the home remains a loosely negotiated one between the parent(s), the caseworker, and the court, in which the decision-making criteria is altogether too fuzzy. A more formalized and rule-oriented procedure is required, preceded by conceptual clarification, from which more reliable judgements and greater consensus between parties can emerge. Further, before we can begin to deal effectively with severe physical and sexual child abuse, we should begin regarding it for what it is. It is not over-zealous discipline, nor uncontrolled aggressiveness, nor careless rough housing, nor hot-temperedness, nor impatience, nor inappropriate sexual attention, nor any of the other psychological labels that are used to excuse it. Child abuse, in whatever degree, is criminal assault and needs to be recognized as such. It requires firm investigation and prosecution by the police, backed by the courts.

Cf. Wife Battering

Assault by a male social partner accounts for more injury to women than auto accidents, mugging, and rape combined. Even more far reaching than injury and death are the psychosocial consequences of abuse. We also found that woman abuse is a factor in almost half of all child abuse and in more than a third of all divorces and is a major cause of attempted suicide, alcoholism, and mental illness among women.

Evan Stark, “Framing and Reframing Battered Women”

Until a few years ago, a woman entering a police station seeking protection from a battering husband received little more than sympathy. Hers was a “domestic” or “marital” problem not within police jurisdiction. The police would take action only if the man severely hurt or killed the woman. After she was treated at the hospital, and if it was a slow night, an officer might escort her home and attempt to negotiate a reconciliation. If this could not be achieved, the woman was advised to stay with a relative or friend, later to see a counselor, or perhaps a minister. Now, of course, we would think it foolish that a woman being assaulted by her husband would call a social worker for help. Rather, the advice is, “Call the police!” They will intervene immediately, using force if necessary to subdue the assailant, who will be led away in handcuffs, the details to be sorted out later by a judge.

What has changed? Wife-battering is no longer regarded as a private domestic affair. Instead it is criminal assault, plain and simple, requiring decisive police intervention. In some jurisdictions in the United States, if there is evidence the woman has been battered, police are mandated to make an arrest, even if the victim does not wish to press charges. In cases of wife battering the responsibilities of the police and social worker are clear. The role of the police is to investigate and prosecute criminal wrongdoing, while the social worker’s role is to provide the battered woman with support and other casework services. The social worker is not expected to conduct a criminal investigation.

Studies of wife abuse have suggested the variable that has the greatest impact on reducing subsequent abuse is police involvement (Berk et al., 1992; Pate and Hamilton, 1992; Sherman and Berk, 1984). Unfortunately, even with police involvement, the assailant is still likely to continue with some level of abuse. This underscores the importance of police involvement to provide the best available protection. Even though police involvement will not assure an end to abuse, it provides the best approach to protection from future abuse.

How Physical Abuse of Children Differs

Currently, if a child is beaten senseless by a parent, with multiple broken limbs, perhaps a concussion, there is no guarantee that the child will be removed and provided any protection whatsoever from the abusive parent. Indeed, the child is more likely to be removed from the home for reasons of poverty than abuse. Nor is the parent likely to be arrested, unless, of course, the child dies. Instead, if the residual perspective is followed, which emphasizes the psychodynamic child-parent relationship and the parent’s personal and psychological “deficits,” the parent will likely receive nothing more than “therapy,” or “counseling,” with the caseworker stopping by from time to time to monitor progress.

The whole routine would be laughably ridiculous were it not so tragic. While counseling and therapy may eventually constitute a partial solution to whatever psychological malfunction has led the parent to abuse the child, the fact remains that another human being has been assaulted, and the assailant is subject to prosecution under the law, which should be applied vigorously and equally to everyone irrespective of race, income, or sex. While the perpetrator should be afforded full legal safeguards, he or she must realize that physical or sexual assault against a child is illegal and will be prosecuted to the full extent of the law.

The question becomes: at what age does striking an individual with a fist or club, with the intent to inflict bodily harm, change from child abuse (treatable by counseling or therapy) to criminal assault (punishable by imprisonment, fine, or both)? Presumably, a person twenty-one years of age could legally press charges against a parent for assault. Why then cannot a teenager, a child, an infant do the same? At what age does a child cease to be the ward of quasi-legal protective service workers and gain the full protection of the law? In fact, the teenager, child or infant should not have to press charges. Rather, arrest should be mandated if there is evidence of severe physical abuse.

Child abuse, like other physical assault, is not an action that falls within the purview of child welfare agencies. Child abuse is not a clinical syndrome or a psychological disorder requiring specialized therapeutic intervention, support, and care. Child abuse is, first and foremost, a criminal act, requiring decisive coercive control, and is therefore a police matter. The sooner it is treated as such, the sooner children will be protected to the fullest extent possible. This does not mean that the perpetrator shouldn't be provided with treatment and counseling, rather, it means that the child abuse needs first to be prosecuted as a criminal act and then, when advisable, to provide treatment to the perpetrator with the best available therapeutic services.

There are significant advantages to adopting this view, aside from the improved protection it will afford children. First, redefining child abuse as criminal assault would clarify the roles of all parties—parent, police, courts, and social worker. Currently, child abuse allegations are resolved in a shifting and ambiguous jurisdiction where almost no one is arrested unless a child dies or is permanently disabled; where the law bends to fit bureaucratic rules and regulations, and where defendants’ rights may not always apply; where the prosecutor and the judge too often form a darkly suspicious alliance that serves expedience more than justice, and where the charge itself (abuse) is only vaguely defined, ranging from homicide to leaving children unattended, with the penalty often not fitting the crime.

With child abuse recognized as criminal assault, the police would have clear jurisdiction and responsibility to act decisively, whereas now, out of uncertainty, often they do not. Any allegation would be clearly stated, and the parent assured proper defense. Civil rights, due process, and other legal procedures and safeguards would be clarified and upheld. The court, disentangled at last from its unhealthy relationship with child welfare agencies, would be able to make a just determination.

Second, with abuse properly defined, and the roles of the participants clarified, the ability to prevent child abuse and provide police protection for abused children would increase. Even an angry parent, knowing that he or she is breaking the law and subject to arrest, prosecution, and conviction, would think twice before bruising their child, who might subsequently be observed and reported to the police by a neighbor or teacher.

Finally, child welfare social workers would be freed to return to the duties for which they are most qualified—providing effective and needful services to impoverished and disadvantaged families. Child welfare caseworkers are not police, nor were they intended to be. If they find themselves acting as investigators now, it is only because the role has been mandated for them to investigate the avalanche of child abuse and neglect reports. They have neither the training, the authority, nor perhaps the disposition to effectively investigate criminal activities. Since child abuse, like all other acts of assault, is a criminal act, its investigation and prosecution should be transferred to the police, who have the training and resources to appropriately respond.

Deficiencies in the Child Welfare System

The current child protective service system staffed by child welfare social workers too often fails to protect children because it does not possess the investigative technology, training, and resources that are available to the police. It does not have crime laboratories, finger print identification equipment, highly trained and skilled criminal investigators who are familiar with the latest advances in forensic science. Schools of social work do not offer courses in criminal law, court procedures, rules of evidence and other special areas that would enable them to effectively investigate and prosecute criminal behavior.

The emphasis in social work education is on helping. When responsibility for investigating child abuse is shifted to child welfare agencies, or even child protection units within these agencies, the affected children are denied adequate protection. Child abuse comes to be seen as something amenable to therapeutic and professional help rather than criminal investigation.

Nevertheless, social workers do have interviewing and assessment skills that are useful in determining whether abuse has occurred (Cooper, 1993). The child welfare social worker may be able to establish a rapport with the abused child and even the abusing parent, a perspective that is often denied the police. In this role, the child welfare worker may best be able to determine if abuse has occurred. Thus, they could be hired by police departments to function much as they do in hospitals or schools, by providing particular services to assist the agency in achieving its objectives. The child welfare social worker might be “deputized” to investigate and thus would provide the child with the strongest possible protection and the “alleged” abusive parent with legal safeguards (that is, by providing proper Miranda warning to the parent).

Realizing they are now strictly an accessory to the legal apparatus that prosecutes child abuse, child welfare workers would be more likely to identify for police those families in which criminal child abuse is occurring. Currently, caseworkers are often reluctant to accuse parents of abuse, preferring to view it in terms that match their therapeutic interventions (Dingwall, Eekelaar, and Murray, 1983).12 The child’s broken arm, bruised face, or scalded leg are due to the parent’s “impulsivity,” “alienation,” “depression,” “ego-centricity,” “over-aggressiveness,” “lack of self-esteem,” and the like, all of which are regarded as treatable through therapy or counseling (Margolin, 1992). Yet, there is precious little evidence to support the effectiveness of these optimistic interpretations of severe abuse. Sadly, on the hope of such unproven optimism for rehabilitation of criminal child abusers are sacrificed the lives of countless children.

Too, caseworkers sense their lack of experience and authority to investigate and prove allegations of abuse. Even if they could prove abuse, they have no technology to correct it. Like most people they want to get along, to promote harmony and cooperation with the parent, whose goodwill they view as essential to restoring the family to health. The result is that too many severe abuse situations are politely swept under the rug, leaving the endangered child virtually defenseless.

With abuse cases being investigated and prosecuted by police and justice departments, the child welfare agency’s principal responsibility would become one of providing a “place of safety” for the assaulted child. Although the agency might also assist in the investigation, the responsibility of pursuing the assailant would properly belong with the police. At most, the child welfare social workers become soft police unable to effect an arrest or conduct a thorough criminal investigation. When children have been criminally assaulted and abused they are entitled to the same protection afforded all citizensfull police protection.

Establishing Rule-Oriented Standards

Concomitant with a new understanding of child abuse should come revised rule-oriented standards for the removal of children in abuse and neglect cases. The wide discretion currently permitted enforcers of child abuse laws has failed to protect children, and left both parents and the public unclear regarding what the rules governing abuse and neglect are.

Professionals have long wrestled with the problem of developing a rule-oriented standard for child removal. Mnookin, Wald, and others have argued for a standard that would retain the child at home unless a clear and present danger exists to the child’s well-being. Mnookin holds that before removal occurs, evidence of physical harm must be demonstrated by an explanation of why intervention would not be possible with the child remaining at home (Mnookin, 1973, 631). Wald (1976) has proposed that state intervention is legitimate in cases where the child has suffered either serious physical harm, serious and specifically defined emotional damage, or sexual abuse, or where the child is in imminent physical danger (p. 642). He would require the level of proof to vary depending upon the harm in question (i.e., physical abuse would require less proof than emotional damage).

Goldstein, Freud, and Solnit (1979) advocate limiting the coercive arm of the state to those cases where the child faces an “imminent risk of death or serious bodily harm.” Advocates of strict legal standards suggest that removal is justified only if the parents’ past behavior was itself sufficiently harmful—that is, if it caused or was capable of causing “serious harm.” Legal scholars have proposed specific guidelines to determine if a child should be removed (Besharov, 1987, 312-313). The framework shown in the Appendix I is illustrative of the “rule oriented” approach.

When possible, the length of placement should be specified before placement occurs. Placement decisions should be based on a common set of principles with the same criteria applied equally to all. Even if the parent(s) desire placement, they should know that the child will return home after a specific time—either that or the state will arrange for another permanent home including, if necessary, court action to terminate parental rights (Mnookin, 1973, 637). The Oregon Project’s effort to terminate parental rights in certain cases of long term foster care “drift” provides examples of how the court can take decisive action in this regard (Hewitt, 1983; Mlyniec, 1983). Of course, before placements occur, the state should offer, when appropriate, alternative services that would enable a child to remain at home.

The most disturbing aspect of the wide discretionary power that child welfare authorities currently wield in removing children is that the results are unfair and discriminatory. Too often, child removal is limited to poor families. Less than one fourth of the children removed from their families and placed in foster care are from financially self-supporting families. Rein, Nutt, and Weiss (1974) point out that while many children are in out of home placements such as boarding schools, military schools, and living with friends and relatives, it is poor children, by and large, who are placed in foster care. The research by Hampton and Newberger (1985) suggested that income status and race were the most important variables that distinguished reported from unreported cases of abuse.

Developing a Child Abuse Legislation Model

In addition to rule-oriented standards for removal, child abuse legislation is needed that would outline specific guidelines to regulate the investigation and decision-making process in abuse and neglect cases (Duquette, 1980; Falconer and Swift, 1983). Such legislation would provide criteria to follow at each stage of an investigation (along the lines of Appendix I).

For example, if a child were abused severely enough to require medical treatment, the criteria might specify that the child be placed in a “safe house” for seventy-two hours during which the police investigated the alleged or suspected abuse. If abuse were substantiated, the police would file charges against the perpetrator while seeking protective service supervision (e.g., foster care arranged by a child welfare worker) for a specified period of time (e.g., three months). If the physical abuse were repeated severely enough to require medical attention, the police would seek “termination of parental rights.”

Likewise, if a child were sexually abused, the police would remove the child from the home environment where the abuse occurred, investigate, and, if the allegations were substantiated, prosecute the perpetrator. If the abuse were repeated, further prosecution would follow, along with an effort to terminate parental rights. The parent would not be held harmless solely because he or she did not actually engage in the abuse. The only permissible excuse would be that the parent was unaware of the sexual abuse and exercised reasonable care to protect the child from it.

In such a way, legislation would articulate the specifics of criminal physical and sexual assault, detailing the steps to be taken and penalties to be imposed, should the specific allegations be substantiated (Turner and Shields, 1985). The law would be applied as firmly and consistently as feasible. If parents knew that child abuse law was clearly defined, and violations prosecuted vigorously, physical and sexual assault of children would likely decline.

Again, we note that the investigating officer would not be a child welfare caseworker but a law enforcement official specifically trained to investigate such criminal matters. The child welfare worker would provide appropriate casework services, such as counselling the abusing parent if the court so ordered it, and arranging foster care services for the child. Beyond this, the child welfare agency might assist in public relations efforts to prevent and combat child abuse.


Preoccupation with child abuse has displaced the child welfare system’s obligation to a much larger population of children. By defining it in a proper social and legal framework, by clarifying the roles that the courts, the police, the social worker, and the parent play in the phenomenon of child abuse, progress can be made in stemming the growing tide of abuse while freeing the child welfare system to return to its true mandate.

In North America more than 15 million children live in poverty. More than 5 million children in the United States live in households with income less than “half the poverty line”—a phrase that does not adequately reveal the depths of hopelessness these children daily experience. They are the poorest of the poor, subject to hunger, disease, despair, and death. The mission of the child welfare system is not to protect children from criminal abuse but to aid impoverished children. It must shift responsibility for protecting criminally abused children back to the police and the courts, where it is best handled. Only then can the system concentrate on providing an infrastructure of social programs that will ensure the economic security and well-being of disadvantaged and impoverished children. The child welfare system should be judged by its success in reducing poverty among children, in providing them the means to break the cycle of poverty to become productive citizens, not by its effectiveness in controlling the incidence of criminal physical and sexual assaults, in which it will continue to fail.

1 A Red Herring is a highly charged issue that draws attention away from the real and more difficult problem.

2Only Illinois passed an appropriation with its first reporting law (Nelson, 1984, 132).

3 In 1973, U.S. Congressman Mario Biaggi testified at a U.S. Senate hearing on the Child Abuse and Neglect Prevention and Treatment Act that child abuse was the “number one killer of children in America today” (cited in Pelton, 1989, 30). The New York Times reported in November 30, 1975, that, “More than a million American children suffer physical abuse or neglect each year, and at least one in five of the young victims die from their mistreatment, the Government announced today” (cited in Pelton, 1989, 29). This meant that 200,000 children were dying each year from child abuse, an exaggeration that more accurately describes the number of fatalities that would have occurred over two centuries. As we have seen, the number of child abuse fatalities in 1975 was approximately 1,000. Pelton reported that this exaggerated number continued to gain nationwide publicity through the news media for several weeks. The number of fatalities was based on an interview with Douglas Besharov, then Director of the National Center on Child Abuse. Besharov claims he said 2,000.

4 Media has a central role in mediating information and forming public opinion. The media casts an eye on events that few of us directly experience and renders otherwise remote happenings observable and meaningful. Consequently, if an issue is to be established in modern society as a social problem requiring state intervention, the role of the media is crucial (Best, 1991). In this regard, press coverage of an issue that produces such public outrage at the brutal death of a child can be angry and critical of a system that is seen as responsible for preventing the senseless death, yet somehow unable and unwilling to act. Newspaper headlines in Britain in 1973 are illustrative (Parton, 1985, 89-99): “The Times headlines include: ‘Social Worker Made Error of Judgement’ (3 November); ‘Social Worker Booed at Brighton Enquiry’ (6 November); ‘Social Workers Wrong, QC Tells Inquiry Into the Death of Maria Colwell’ (8 November); ‘Social Worker Accepted Bruises’ (13 November); ‘Social Worker’s Job “Not at Risk” After Took Little Interest in the Child’s Death’ (14 November). The front page report is head-lined ‘Two-Babies Are Battered to Death Each Day.’ A study of 29 men imprisoned at Brixton for killing their children was reported in the press: “One of the most disturbing findings…is the lack of guaranteed security for abused children once their plight has come to light…Eight men in the Brixton cases were being visited by social agencies because of child abuse when they killed their children” (Scott, 1973). Golding and Middletown (1982) quote additional headlines from 1980, “’Malcolm Died As He Lived, Freezing Cold, Starving And Surrounded by Social Workers’ (Daily Mirror, 16 January 1980); ‘Early Victim of Do-Nothing Welfare Team’ (Daily Mail, 21 February); ‘Welfare Woman in Row Over a Dead Baby’ (Daily Mail, 4 November).” Reviewing these press reports Golding and Middleton (1982,90) argue, “That such children suffer from ineffectual intervention by incompetent social workers is a common theme in these cases…Social workers represent in human form the excessive intervention of the state in people’s lives, and also the naivete of the bureaucratic mind…Thus social workers are too numerous, do not act when they should, and are largely unnecessary.”

5Court involvement is sometimes mandatory as a matter of agency policy, regardless of whether the parent voluntarily relinquishes the child.

6Theodore Stein (1991b) has observed that, “the courts are beginning to rule that if a social worker is conducting an investigation and has as her/his purpose the possible criminal prosecution of a parent [which due to all the criminal prosecutions of sex abuse reports happens with increasing frequency] she or he may well be responsible for providing a Miranda warning to police conducting similar investigations.” Other attorneys have suggested they would advise clients not to permit “assessments” or investigations without a court order. Further, they would recommend that clients not discuss their situation with a social worker in an abuse investigation without the presence of counsel (a lawyer).

7An additional explanation of the rubber-stamp behavior of the court has been that child welfare caseworkers and other professionals shape their recommendations to conform to what they think a particular judge will want to decide (Mnookin, 1973, 628). For example, child welfare caseworkers seeking to terminate parental rights in the Oregon Project assumed an active role in obtaining evidence and researching statutes, yet upon entering the court the caseworker had to conform to the district attorney’s recommendations based on available legal resources (Burt, 1971; Regional Research Institute for Human Services, 1978, 35).

8The same concern with legal safeguards applies to the police. In the District of Columbia the police have been responsible for investigating all child abuse reports. As long as the police treat the investigation as a civil, rather than a criminal matter, [and most abuse cases have been treated as civil] the procedural safeguards provided in criminal investigations do not apply (Stein, 1991b). In order to provide these safeguards legislation is needed to ensure that child abuse investigations be treated as criminal investigations.

9The “battered child syndrome” discovered by C. Henry Kempe and colleagues (1962) was defined as a child under three years old who suffered severe physical abuse.

10Since 1909 there has been an historic principle that children should not be removed from their home for “reasons of poverty” (Bremner,1971; Pelton, 1989). To remove a child from his or her parent(s) for reasons of poverty would be “cruel and unusual punishment” or severely harsh punishment for conditions which the parent(s) may be unable, at least temporarily, to change. Instead, the child welfare social worker has been mandated to provide services and resources to the family so that removal of the child for reasons of poverty would not be necessary (Barth & Berry,1987).

11The study of filial deprivation by Jenkins and Norman (1972) indicates an intensive and long-lasting pain and anguish associated with removal.

12One of the unique qualities of the child welfare social worker, derived from professional training, is that he or she often focuses on the strengths of the parents even in severe abuse cases. Dingwall, Eekelaar, and Murray (1983) found that caseworkers operate under a “rule of optimism.” They suggest that at each stage of the decision-making process caseworkers tend to favor the least stigmatizing interpretation of available information and the least coercive disposition. Their research indicated that the only situation that provoked coercive intervention involved “parental incorrigibility” (when parents failed to cooperate and appreciate the contribution of the child welfare caseworker) and a “failure of containment” (when the case appeared to be moving beyond the caseworker’s sphere of influence or control to involve other family members or other agencies).

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