Sunday, July 22, 2012

On Child Abuse

One of the more annoying aspects of trying to comment on or understand legal matters, especially for someone like me who's neither a lawyer nor a legal professional, is that laws vary across jurisdictions. What is legal -- or illegal -- in one area is not necessarily legal or illegal in another.

This would be a lot less problematic if the law -- or legal research, for that matter -- was simple and/or straightforward. Simply put, it is not.

While child abuse is illegal in every state, the statutes vary. Even when they're the same or similar, the case law (or legal precedents) vary as well. In practical terms, this means that while child abuse is illegal in every state... the meaning of the term isn't the same in each.

For instance, in Michigan, the relevant definition (§ 722.622, for those of you interested in looking it up) reads:
'Child abuse' means harm or threatened harm to a child's health or welfare that occurs through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment by a parent, a legal guardian, or any other person responsible for the child's health or welfare or by a teacher, a teacher's aide, or a member of the clergy.
Alternately, there's another definition in § 722.602:
“Child abuse” means harm or threatened harm to a child's health or welfare by a person responsible for the child's health or welfare, which harm occurs or is threatened through nonaccidental physical or mental injury; sexual abuse, which includes a violation of section 145c of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being section 750.145c of the Michigan Compiled Laws.

Of course, this doesn't explain just what does (or doesn't) count as "nonaccidental" injury or "maltreatment". That's what case law is for.

I live in Florida, however, so the Florida statutes are of somewhat greater personal interest to me. This is especially true given the corollary of my residence: most of the kids I personally care about and have worked with live here, too.

Here, the statute (s. 827.03, for those of you who want to look it up -- or you can just go here) reads:

(1) “Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury
to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be
expected to result in physical or mental injury to a child.
A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) “Aggravated child abuse” occurs when a person:
(a) Commits aggravated battery on a child;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent
disability, or permanent disfigurement to the child.
A person who commits aggravated child abuse commits a felony of the first degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084.
Frankly, I like the Florida statute far better than I do the Michigan equivalent. This is for a variety of reasons... but that's an entirely different discussion.

As always, however, there are points where the seemingly-straightforward law becomes ambiguous. For instance, what does it mean to "willfully torture" someone? Then there's the reasonableness standards which pop up throughout. Perhaps by necessity, there's a great deal of vagueness there.

One of the major purposes of case law is to clarify this vagueness. Unfortunately, however, case law is a tangled, overcomplicated mess at the best of times. I -- to be blunt -- hate having to delve into the topic.

This does not, however, mean that I am unwilling to do so. I just prefer to leave it to the professionals.

In fact, I am aware of a number of cases which impact on the definition provided above. I've actually read a couple of them in their entirety while researching a specific issue.

The first of these, Nicholson v. State, was decided by the Florida's Supreme Court in 1992. I will not bother detailing the circumstances of the case (they're extraordinarily disgusting, and listed in the decision I linked anyway), and the reasoning of the decision depends on a definition which has since been removed from the statute. That said, the court ruled that "willful torture" under the statute explicitly included acts of omission -- such as failure to provide food -- provided they were committed with the willful intent to cause unnecessary or unjustifiable pain or suffering.

The case also continues to be cited as precedent by other cases despite the statutory  change.

The second of these, Cox v. State, was decided by the Second District Court of Appeal in 2009. A couple of the more relevant passages:
Aggravated child abuse is largely determined on a case-by-case basis rather than with bright-line rules as to what conduct does and does not constitute aggravated child abuse.  Herbert v. State, 526 So.2d 709, 712 (Fla. 4th DCA 1988).   This flexibility is critical to allow for consideration of such factors as the age of the victim, the frequency of prohibited conduct, and other circumstances relevant to a particular case.   It is clear, however, that “the first-degree felony of aggravated child abuse [is] preserved for truly aggravated circumstances.”

However, this court has held that aggravated child abuse for malicious punishment is reserved for “cases involving parental discipline that results in great bodily harm or permanent disabilities and disfigurements or that demonstrates actual malice on the part of the parent and not merely a momentary anger or frustration.”  McDonald, 785 So.2d at 646

I leave further case-law research to the legal scholars... who are, frankly, generally far better at it than I am.

I bring all of this up because of the latest inane fad "treatment" for autism -- the bleach enema.

Giving your child an enema is very definitely an intentional act -- it's rather difficult to unintentionally take a bag and shove fluid up your child's posterior. In the case of bleach enemas, it also could reasonably be expected to result in physical or mental injury.

This means that, under section (b) of the definition above, the act of giving a child a bleach enema constitutes child abuse under Florida law.

Or, at least, that's my reading of the matter. As I noted before, I'm neither a lawyer nor a judge, so people don't -- and shouldn't -- particularly care about my opinion in legal matters. Anyone who has a different interpretation is more than welcome to elaborate on it or discuss it in the comments.

Does it, however, constitute aggravated child abuse? That's a thornier question, and the ultimate goal of my legal research. If the process includes aggravated battery, or actually causes "causes great bodily harm, permanent disability, or permanent disfigurement," then I believe it would.

If it doesn't? Maybe. It depends on the legal meaning of "willful torture" in this context, and that's fuzzy enough. I suppose it could easily depend on the lawyers involved.

You'll note that I'm including a lot of statements like "I believe" and "I suppose" here. I pretty much have to. There are reasons why I hate legal research. These are the sort of points which lawyers have been known to debate endlessly in courtrooms, and legal textbooks often take multiple chapters to answer them in the most circuitous and tentative ways imaginable.

In any case, the more interesting part of the definition is part (c). According to this, even actively encouraging people to commit child abuse constitutes child abuse in and of itself. I would argue that promoting bleach enemas as an autism treatment qualifies.

On top of all of this, we have Florida's mandated reporter statute. Without getting into the details, it requires people who know of or suspect child abuse to report it to a Florida abuse hotline (1-800-96-ABUSE). This requirement is (on the statutory level) taken quite seriously -- failing to make a report when required to do so is a third degree felony. Making a false report is also a criminal act (also a third-degree felony), but people acting in good faith are immune from prosecution.

What all of this means is that -- at least according to my own reading of the statute -- anyone who has reason to suspect that a child is being "treated" with bleach is legally required to call the hotline.

Whether the laws will actually be enforced in practice is an entirely different matter... and, frankly, one that I'm in no mood to discuss.

In large part, this mood goes back to the beginning of this blog post, where I noted that things vary by jurisdiction: I did not choose Michigan's laws as an example by random chance.

As I write this, I am looking at a letter, from the Michigan Department of Human Services, written on official letterhead... whose contents boil down to a statement that, under the Michigan Child Protection Law, repeatedly giving your child bleach enemas in the name of autism "treatment" does not qualify as child abuse.

Go figure.

1 comment:

  1. Hi, Alexander. I hadn't seen your blog before, which is why I am commenting on such an old post.

    Thank you so much for spelling out, as clearly as a person can spell it out, what is and is not child abuse under the law.

    Unfortunately, I think a lot of people --- judges, lawyers, jury members and most definitely the person who wrote the letter you reference --- give parents WAY too much leeway if they believe they have "good intentions." (Scarequoted because a lot of things that pass for good intentions are not things I would give that label to --- thinking of excessively strict discipline because the parent thinks the Bible mandates it, and also, obviously, giving one's child quack autism cures.)

    I think children would be better served if, instead of trying to figure out what was in the parents' heads and have that be the determining factor of whether or not abuse happened, that the relevant criterion be the effect on the child in question.