Legal Issues in Child Abuse and Neglect Practice

426 Pages·1998·20.26 MB·English

by  John E. B. Myers

Legal Issues in
Child Abuse
and Neglect
Practice
Second Edition
WPS
Interpersonal Violence:
The Practice Series
Jon R. Conte, Series Editor
In this series...
LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE, Second Edition
by John Ε. B. Myers
CHILD ABUSE TRAUMA: Theory and Treatment of the Lasting Effects
by John N. Briere
INTERVENTION FOR MEN WHO BATTER: An Ecological Approach
by Jeffrey L. Edleson and Richard M. Tolman
COGNITIVE PROCESSING THERAPY FOR RAPE VICTIMS: A Treatment Manual
by Patricia A. Resick and Monica K. Schnicke
GROUP TREATMENT OF ADULT INCEST SURVIVORS
by Mary Ann Donaldson and Susan Cordes-Green
TEAM INVESTIGATION OF CHILD SEXUAL ABUSE: The Uneasy Alliance
by Donna Pence and Charles Wilson
HOW TO INTERVIEW SEXUAL ABUSE VICTIMS: Including the Use of Anatomical Dolls
by Marcia Morgan, with contributions from Virginia Edwards
ASSESSING DANGEROUSNESS: Violence by Sexual Offenders, Batterers, and Child Abusers
Edited by Jacquelyn C. Campbell
PATTERN CHANGING FOR ABUSED WOMEN: An Educational Program
by Marilyn Shear Goodman and Beth Creager Fallon
GROUPWORK WITH CHILDREN OF BATTERED WOMEN: A Practitioner's Manual
by Einat Peled and Diane Davis
PSYCHOTHERAPY WITH SEXUALLY ABUSED BOYS. An Integrated Approach
by William N. Friedrich
CONFRONTING ABUSIVE BELIEFS: Group Treatment for Abusive Men
by Mary N6mme Russell
TREATMENT STRATEGIES FOR ABUSED CHILDREN: From Victim to Survivor
by Cheryl L. Karp and Traci L. Butler
GROUP TREATMENT FOR ADULT SURVIVORS OF ABUSE: A Manual for Practitioners
by Laura Pistone Webb and James Leehan
WORKING WITH CHILD ABUSE AND NEGLECT: A Primer
by Vernon R. Wiehe
TREATING SEXUALLY ABUSED CHILDREN AND THEIR NONOFFENDING PARENTS:
A Cognitive Behavioral Approach
by Esther Deblinger and Anne Hope Heflin
HEARING THE INTERNAL TRAUMA: Working With Children and Adolescents Who
Have Been Sexually Abused
by Sandra Wieland
PREPARING AND PRESENTING EXPERT TESTIMONY IN CHILD ABUSE LITIGATION:
A Guide for Expert Witnesses and Attorneys
by Paul Stern
TREATMENT STRATEGIES FOR ABUSED ADOLESCENTS: From Victim to Survivor
by Cheryl L. Karp, Traci L. Butler, and Sage C. Bergstrom
HOMICIDE: THE HIDDEN VICTIMS—A Guide for Professionals
by Deborah Spungen
TECHNIQUES AND ISSUES IN ABUSE-FOCUSED THERAPY: Addressing the Internal Trauma
by Sandra Wieland
Legal Issues in
Child Abuse
and Neglect
Practice
Second Edition
JohnE. B.Myers
gyps
Interpersonal Violence:
The Practice Series
SAGE Publications
International Educational and Professional Publisher
Thousand Oaks London New Delhi
Copyright © 1998 by Sage Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by
any means, electronic or mechanical, including photocopying, recording, or by any
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.
For information:
SAGE Publications, Inc.
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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