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Child Sexual Abuse Legal Issues and Approaches

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Child Sexual Abuse Legal Issues and Approaches If you have issues viewing or accessing this file contact us at NCJRS.gov. ,0 National Criminal Justice Reference Service V" ----------------~~~--------------------------------------------------- 0 I ~ '" nCJrs Q CHILD SEXUAL ABUSE '.' 'Q This microfiche was produced from documents received for '" inclusion in the NCJRS data base. Since NCJRS cannot exercise LEGAL ISSUES AND : ! control over the physical ~ondition of the documents submitted, the individual frame quality will vary. The resolution chart on APPROACHES this frame may be used to, evaluate the document quality. a 2 8 2 5 \ 1.0 :; 11111 . 11111 . I I~ ~[113.2 ! I W - J I.:.: II~I~ 40 2.0 A monograph by the L:1.~ 1""" 'I r 1..1 ""WU,Ll U -- r -- National Legal Re~ource Center ii \\\\\1.25 111111.4 111111.6 ;1 ! .for Ghilq Advocac,y a1l:dProtection 4. U.S. Department of Justice National Institute of Justice MICROCOPY RESOLUTION TEST CHART This document has been reproduced exactly as received from the NATIONAL BUREAU OF STANDARDS-J963-A pers?n or organization originating it. Points of view or opinions stated In this documen~ are those of the authors and do not necessarily , repr~sent the official position or pOlicies of the National Institute of Justice, ,XI Permission to reproduce this copyrighted material has been granted by ~. ~.._ ..' ';c- ~ . ,.#..1 Nat'l Legal Resource Center for Microfilming procedures used to create this fiche comply with"" Chi~d Advocacy & Protect jon the standards set forth in 41CFR 101-11.504. to the National Criminal Justice Reference Service (NCJRS). F.urther reprodu~tion outside of the NCJRS system requires permis­ Points of view or opinions stated in this document are sion of the copYright owner. those of the author(s) and do not represent the official DATE FILMED I position or policies of the U. S. Department of Justice. ~ , dV. 10/08/81 )1 American Bar Association National Institute of Justice 1. J' f Young Lawyers Division United States Department of Just'i~;;­ I Washington, D. C. 2053>1 ,'1980. J i Washington;'D.C ..... Sep~. I , j / CHILD SEXUAL ABUSE LEGAL ISSUES AND APPROACHES by J 0 s e phi neB u 1 k 1 e y , E sq. Staff Attorney/Director, National Legal Resource Center Sexual Abuse Project for Child Advocacy and Protection Howard A. Davidson, Esq. Center Director RESOURCE CENTER STAFF National Legal Resource Ii Center for Child Advocacy DIRECTOR and Protection ASSISTANT DIRECTOR ASSISTANT DIRECTOR I Howard A. Davidson Shirley A. Gravely I' Robert M. Horowitz I Arner ic an Bar As soc ia t ion ASSISTANT DIRECTOR ASSISTANT DIRECTOR I Josephine Bulkley ADMINISTRATIVE ASST. I! CONTENTS Sexual Abuse Mark A. Hardin Bonita J. Ross l Permanency Planning [< i' Ii~:l YOUNG LAWYERS DIVISION Foreword ............................................... II i CHAIRPERSON 11 INTRODUCT ION ••••.•.•••.•.•••.•.•••.• c. ••••••••••••••••••• Jane H. Barrett CHAIRPERSON 1 Los Angeles, CA CHILD ADVOCACY COMMITTEE 11 BACKGROUND AND INC I DENCE ...•..••••••.••.•.••.••••••.•••• Bruce A. Kaufman 2 Baltimore, MD 1\ EFFECTS ON CHILDREN .••.•.••••.•.•.••••••.•••..•.•.•••••• 3 VICE CHAIRPERSON C. Edward Dobbs SECRETARY \ COURT ACTION ON BEHALF OF THE CHILD - A CHOICE Atlanta, GA Carolyn B. Lamm OF ALTERNATIVES ......••....•..•.••.•....•....•..•...• Washington, DC . 4 A. JUVENILE COURT PROCEEDINGS .••••.••••••.•••••••••• 6 ADMINISTRATIVE SUPPORT \ B. THE CRIMINAL JUSTICE SYSTEM ••..••••••.••••••••••• 7 DIRECTOR, ABA DIVISION OF PUBLIC SERVICES ACTIVITIES C. DOMESTIC VIOLENCE STATUTES Katherine MeG. Sullivan •• " •••••••••••••••• ~I! •• ,. 8 \' . '''')~\~j '~~ SENSITIVE LEGAL INTERVENTION 1 .............. ';' .......... 10 EVIDENTIARY PROBLEMS •.••••••••••••••.••••••. l..... {~A)'. :l.(~;il:S 1 \ COOPER7' l'IVE CltSE MANAGEMENT AND FAMILY TREATMEN;, ,1,",\,\'1 F~~:.. '~ l' . :', AL.I.'ERNATIVES ••••.•••..•.•••••••.••••••••• ;•• .!·4.C~'!l-: .. &C~.~Jt! ]i.a~. ,,, ) 1 CONCLUSION : ••••••• CI •••••••••••••••••••••••••••••••••••••• 22 FOOTNOTES •••••••••• • •••••••••• 4J ••••••••••••••••••••••••• 23 APPENDIX A - LEGAL PROCESSES IN SEX ABUSE CASES •••••.••• 31 APPENDIX B - INTERVIEWING CHILD VICTIMS: GUIDELINES FOR CRIMINAL JUSTICE SYSTEM PERSONNEL •••••••••••••••• 32 NOTE: This monograph may be reproduced without permission APPENDIX C - SAMPLE INTERDISCIPLINARY TEAM PROTOCOL ••••• 37 as long as the authors and publishers are duly credited. APPENDIX D - FLOW CHART, CHILD SEXUAL ABUSE TREATMENT PROGRAM, SAN JOSE, CALIFORNIA ••••••••••••.••••••••••• 39 -i- Foreword Recent public and professional attention to the problem of child sexual abuse, especially incest, has brought to the forefront a number of complex and controversial issues concerning appropriate, effective and humane ways of deal­ ing with these cases. It also has exposed both the insensi­ tivity and inadequacy of many existing methods of interven­ tion which were not designed to accommodate either the vulnerability of child victims or the complicated family dynamics that exist when loyal ties are torn between a young child and a parent or other family perpetrator. The sometimes devastating results of criminal prosecu­ tion for children and other family members have led some mental health professionals to argue that intrafamily child sexual abuse cases, especially those where the perpetrator acknowledges responsibility for his acts and willingly seeks help, should not be dealt with in a criminal justice forum. Many of these mental health professionals have acknow­ ledged that the application of criminal sanctions may increase the trauma of families in crisis and prevent many of these families (perhaps the majority) from coming forward for help. Some professionals maintain that legal coercion may jeopardize the offender's personal motivation, trust and willingness to seek help voluntarily, which are important in establishing a treatment alliance that will lead to real individual change. A number of medical, legal and mental heal th professionals do not report cases of child sexual abuse due to their fears that punitive and insensitive attitudes and procedures of our criminal and juvenile justice systems will destroy not only any hope for success­ ful treatment, but the future psychological health of the victim and family as well. Other professionals argue just as adamantly that children and society need and deserve the concrete symbol of the criminal justice system to sanction the total unaccep­ tability of such behavior. It is also asserted that where treatment is sought or indicated, the authority of the court is needed to overcome the denial and avoidance which so often accompany these cases. Law enforcement personnel, while often sympathetic to the effects of a criminal trial on already distraught family members, point out that intra- ,family sexual abuse, like rape, homicide and physical assault, is still a serious crime in every jurisdiction. Most maintain that although such cases should be sensi­ tively handled, they should not be viewed differently simply because the victim and perpetrator are members of the same family. Many argue that ceasing to demand the same legal accountability in such cases would be, in effect, to sanc­ tion the behavior as somehow more acceptable if perpetrated against one's own child. " I -ii- Similarly, many treatment providers have experienced the frustration of having their clients drop out of volun­ INTRODUCTION t.ary trea tment. Legal sanctions may serve to prever;t offenders from escaping the therapeutic process when 1t The legal profession has unfortunately lagged behind becomes painful to confront those parts of themselves t~ey other groups in the development of practical literature on most despise. As a result, more and more programs Wh1Ch the subject of child sexual abuse. Most of the existing specialize in the treatment of ~h~ld sexual abu~e have materials on this topic have appeared only in social work or embraced program models which ut111ze the author1ty and psychiatric journals, or have been primarily available to clout of the criminal justice system to legally mandate those working in child protective agencies. Yet, sexual long-term treatment for sex offenders and their families. abuse of children is as much a legal problem as it is a social and medical one. How this problem is viewed--as a crime, an illness, or a behavioral symptom of family dysfunction--will strongly Child sexual abuse is a crime in every state. It is influence the way it is handled by our criminal justice, also a potential basis for the exercise of juvenile court mental health and social service systems. At the present child protective jur isdiction involving the child I s entire time, there is no national standard of practice. Cases family. In the coming years, more lawyers are going to be are currently being prosecuted, treated, or droppe~ as much involved in such court proceedings. Such cases are not only in accordance with jurisdictional differences 1n law~, traumatic for the child and family, but also involve complex personal attitudes, and available resourc,es, ~s they ~re 1n legal issues, demanding a high level of skill from prosecu­ relation to the weight of evidence, cred1bll1ty of w1tnes­ tors, parents I counsel, child advocates and agency attor­ ses, . trea tabili ty of perpetrators, or severity c: f case~. neys. Strong feelings and opinions are hel~ by profess10nals 1n various disciplines on all sides of th1S problem. This article is intended to give practicing attorneys an introduction to the problem of child sexual abuse, the This technical assistance monograph from the Na~ionc:l
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