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Child Maltreatment

Child Maltreatment1

Child maltreatment is the general term used to describe all forms of child abuse and neglect. There is no one commonly accepted definition of "child abuse and neglect." The federal government defines child abuse and neglect in the Child Abuse Prevention and Treatment Act as "the physical and mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of 18 by a person who is responsible for the child’s welfare under circumstances which indicate that the child’s health or welfare is harmed or threatened."2 Each state provides its own definition of child abuse and neglect.3 Child maltreatment encompasses physical abuse, sexual abuse, neglect and emotional abuse, which can be defined as follows:

  • Physical Abuse
Non-accidental physical injury as a result of caretaker acts. Physical abuse frequently
includes shaking, slapping, punching, beating, kicking, biting and burning.4
  • Sexual Abuse
     
    Involvement of dependent, developmentally immature children and adolescents in sexual
    activities which they do not fully comprehend and to which they are unable to give informed consent. Sexual abuse includes touching, fondling and penetration.5
  • Neglect
Failure of caretakers to provide for a child’s fundamental needs. Although neglect can include children’s necessary emotional needs, neglect typically concerns adequate food, housing, clothing, medical care and education.6
  • Emotional / Psychological Abuse
The habitual verbal harassment of a child by disparagement, criticism, threat and ridicule. Emotional or psychological abuse includes behavior that threatens or intimidates a child. It includes threats, name calling, belittling and shaming.7

Incidence of Child Maltreatment

Although it is difficult to accumulate precise statistics for child maltreatment nationally, a methodology has been developed for accumulating incidence of child maltreatment from the states.8 Once thought to be a problem involving only a few thousand children a year, child maltreatment has since been identified as nothing less than a national emergency.9 The U.S. Department of Health and Human Services, Children's Bureau reported the following incidence of child maltreatment for 2003:10
 
  • Child Protective Services received 2.9 million referrals11 alleging child maltreatment.
  • Approximately two-thirds of referrals were accepted for investigation or assessment.
  • After investigation, CPS agencies determined that 906,000 children were victims of child maltreatment.
  • The national rate of victimization was 12.4 per 1,000 children.
  • More than one-half of reports of alleged child maltreatment were made by professionals including educators, law enforcement, medical professionals, social service personnel and child care staff. Educators provided the largest proportion of reports at 16.3%. Law enforcement and legal personnel made 16% of reports. Social services personnel made 11.6%.
  • Friends, neighbors, and relatives submitted approximately 43.2% of reports.
  • Children under the age of 3 had the highest rate of victimization, and girls were slightly more at risk to be victims than boys.
  • More than 60% of child victims were neglected; approximately 20% were physically abused; 10% were sexually abused; 17% suffered from other types of maltreatment; and 5% were emotionally maltreated. A child could be a victim of more than one type of child maltreatment.
  • Approximately 80% of perpetrators of child maltreatment were parents. Other relatives accounted for 6% and unmarried partners of parents and "others" each accounted for 4% of perpetrators.
  • Nearly 76% of perpetrators of sexual abuse were friends or neighbors and 30% were other relatives. Less than 3% of parental perpetrators were associated with sexual abuse.
  • Approximately 15% of child victims were placed in foster care.
    Nearly 57% of victims and 25% of non-victims received services as a result of a CPS investigation or assessment.
  • An estimated 1,500 children died as a result of child maltreatment. More than three-quarters of the children who died were under four-years old.

Origins of Child Maltreatment

There are approximately 1 million substantiated cases of child abuse and neglect in the United States each year and millions more reported cases.12  Child maltreatment is not a recent phenomenon, nor is it unique to certain nations and cultures.13  It appears children have always been abused and neglected.14 A number of studies of the history of child maltreatment have begun with the now familiar quote by psycho-historian Lloyd De Mause:

The history of childhood is a nightmare from which we have only recently begun to awake. The further back in history one goes, the lower the level of child care and the more likely children are to be killed, abandoned, beaten, terrorized and abused.15

History seems to bear out De Mause. Evidence of infanticide (the practice of intentional killing of a child condoned by parents and society), for example, exists in much of ancient history. Infanticide had been an accepted procedure for disposing of undesirable children.16 Robert Ten Bensel notes evidence of infanticide in 7000 BC with the finding of remains of infants interred in the walls at the city of Jericho. Siculus, a Greek historian of the first century, reported the putting to death of weak, infirm and those who lacked courage. A second century Greek physician instructed midwives to examine children and dispose of the unfit. The Roman Law of Twelve Tables prohibited the raising of defective children. Infanticide, which existed as late as the 19th century in parts of Europe, was justified in two ways. First, because children were considered parental "property," parents, as property owners, were entitled to destroy that property. Second, infancy (historically -- birth to age seven) was by definition a period of time before the right to live vested.17 Illegitimacy is another historical cause of child maltreatment. Many societies outlawed illegitimacy, and illegitimate children were ostracized, abandoned and killed.18

Protection

It is difficult to say when the modern child protection movement began. The famous case of Mary Ellen in 1874 is important but misunderstood. Although this first Juvenile Court was founded in 1899, early juvenile courts were not focused on protecting maltreated children as much as they were concerned with keeping the streets free of poor and vagrant children. The events which most likely gave rise to our current child protection systems were the battered child research and writings of Dr. Henry Kempe in the early 1960s and the passage of the federal Child Abuse Prevention and Treatment Act in 1974. The following is a list of historical events that give rise to our current system.

  • In 1874, 10 year old Mary Ellen was removed from her home for cruelty and provided protection by the New York Court system. The case is connected to the founding of the New York Society for Prevention of Cruelty to Children, which gave rise to the founding of similar societies. By 1900, 161 cruelty societies existed in the United States.
  • In 1839, the Pennsylvania court issued the Ex parte Crouse19 decision judicially affirming the parents patriae role of the government to "care for" society's children.
  • In 1860, French physician Ambrose Tardieu conducted a study of 32 children whom he believed died of child abuse. Tardieu's findings described medical, psychiatric, social and demographic features of the condition of child abuse as a syndrome.
  • The first juvenile court was founded in Cook County, IL in 1899 with exclusive jurisdiction of minors.
  • In 1912, as a result of President Roosevelt's 1909 White House Conference on Children, Congress created the United States Children's Bureau.
  • In 1921, Congress passes the Shappard-Towner Act, which established Children's Bureaus at the state level and promoted maternal-infant health.
  • In 1944, the Supreme Court of the United States confirmed the state's authority to intervene in family relationships to protect children in Prince v. Massachusetts.20
  • In 1946, Aid to Dependent Children was added to the Social Security Act.
  • In 1946, Dr. Caffey, a pediatric radiologist in Pittsburgh, published the results of his research showing that subdural hematomas and fractures of the long bones in infants were inconsistent with accidental trauma.21
  • In 1960, New York was the first state to adopt the Interstate Compact on Placement of Children. ICPS is a uniform law now adopted by all 50 states, Washington D.C., and the U.S. Virgin Islands. It established orderly procedures for the interstate placement of children and fixed responsibility for those involved in placing children.
  • In 1962, following a medical symposium the previous year, several physicians headed by Denver physician C. Henry Kempe, published the landmark article The Battered Child Syndrome in the Journal of the American Medical Association. Through the article, Kempe and his colleagues exposed the reality that significant numbers of parents and caretakers batter their children, even to death. The Battered Child Syndrome describes a pattern of child abuse resulting in certain clinical conditions and establishes a medical and psychiatric model of the cause of child abuse. The article marked the development of child abuse as a distinct academic subject. The work is generally regarded as one of the most significant events leading to professional and public awareness of the existence and magnitude of child abuse and neglect in the United States and throughout the world.22
  • In 1962, in response to The Battered Child, the Children's Bureau held a symposium on child abuse, which produced a recommendation for a model child abuse reporting law.
  • In 1966, the United States Supreme Court decided Kent v. US. The Court held that a "waiver" or "transfer" hearing was a critically important proceeding and that a juvenile has a statutory right to avail himself of the juvenile court's exclusive jurisdiction.
  • In 1967, the Supreme Court of the United States issued the In re Gault decision guaranteeing constitutional protection to children accused of crimes.
  • By 1967, 44 states had adopted mandatory reporting laws. The remaining six states adopted voluntary reporting laws. All states now have mandatory reporting laws. Generally, the laws require physicians to report reasonable suspicion of child abuse. Reporting laws, now expanded to include other professionals and voluntary reporting by the public, together with immunity for good faith reporting, are recognized as one of the most significant measures ever taken to protect abused and neglected children. Reporting is recognized as the primary reason for the dramatic increases seen in cases of child abuse and neglect.
  • In 1971, the California Court of Appeals recognized the Battered Child Syndrome as a medical diagnosis and a legal syndrome in People v. Jackson.23
  • In 1974, Congress passed landmark legislation in the federal Child Abuse Prevention and Treatment Act (CAPTA; Public Law 93-273; 42 U.S.C. 5101). The act provides states with funding for the investigation and prevention of child maltreatment, conditioned on states' adoption of mandatory reporting law. The act also conditions funding on reporter immunity, confidentiality, and appointment of guardians ad item for children. The act also created the National Center on Child Abuse and Neglect (NCCAN) to serve as an information clearinghouse. In 1978, The Adoption Reform Act was added to CAPTA. In 1984, CAPTA was amended to include medically disabled infants, the reporting of medical neglect and maltreatment in out-of-home care, and the expansion of sexual abuse to include sexual exploitation.
  • In 1974 the National Center on Child Abuse and Neglect (NCCAN) was created to serve as an information clearinghouse.
  • In 1974, Congress adopted the Juvenile Justice Delinquency Prevention Act (42 U.S.C. 5601) and Family Education Rights and Privacy Act (Public Law 93-568). The Juvenile Justice Delinquency and Prevention Act required Congress to provide the necessary resource, leadership, and coordination to develop and support juvenile delinquency prevention programs. FERPA required state educational agencies to comply with certain privacy and access rights regarding education records.
  • The National Association of Counsel for Children (NACC) was founded in 1977.
  • In 1977, the NACC held its first National Children's Law Conference.
  • The ABA Center on Children and the Law was founded in 1978.
  • In 1978, the NACC produced the first issue of its quarterly journal The Guardian.
  • In 1978, Congress passed the Indian Child Welfare Act (ICWA; Public Law 96-608; 25 U.S.C. 1901 et seq.). After a series of hearings, Congress concluded that Indian children were removed from their families inappropriately. ICWA provided that federally recognized Indian Tribes and Native Alaskan Villages had jurisdiction over child welfare cases, and created new litigation standards for state court cases involving Indian children.
  • In 1980, Congress passed the Adoption Assistance and Child Welfare Act (Public Law 96-272; 42 U.S.C. 420) designed to remedy problems in the foster care system. The act made federal funding for foster care dependent on certain reforms. In 1983, the act was amended to include "reasonable efforts." The reasonable efforts amendment provided for special procedures before removing a child and reunification strategies after removal. Important provisions for case review were also included. The act and its amendment essentially provided fiscal incentives to encourage states to prevent unnecessary foster care placements and to provide children in placement with permanent homes as quickly as possible. The law also gave courts a new oversight role.
  • In 1981, Title XX of the Social Security Act was amended to include the Social Services Block Grant to provide child protective services funding to states. This became the major source of state social service funding.
  • In 1986, Congress passed the Child Abuse Victims' Rights Act, which gave child victims of sexual exploitation a civil damage claim.
  • In 1989 the United Nations adopted the Convention on the Rights of the Child. The Unites States and Somalia have not ratified the Convention. In 2002, the NACC adopted the Convention and declared its support for ratification.
  • In 1991, Congress passed the Victims of Child Abuse Act, to improve the investigation and prosecution of child abuse cases.
  • In 1993, the NACC hired its first full time professional director and began to define the association's mission and objectives.
  • In 1993, The NY Supreme Court Appellate Division, In re Jamie TT24 , found a constitutional basis for the representation of children in dependency cases.
  • In 1993, as part of the Omnibus Budget and Reconciliation Act, Congress provided funding for state courts to assess the impact of the Adoption Act on foster care proceedings, to study the handling of child protection cases, and to develop a plan for improvement.
  • Congress passed the Multi-ethnic Placement Act in 1994 (MEPA; Public Law 103-382, 104-382). MEPA provided that adoption or foster care placements may not be denied or delayed based on race, color, or national origin of the individual, or the children, involved. The overriding goals of MEPA were to reduce the length of time children spend in out-of-home placement care and to prevent discrimination in placement decisions.
  • In 1995, the NACC adopted its first long-range operating plan, expanding its program and adopting a public policy function.
  • In 1996, the NACC membership reached an all-time high of 2,200.
  • 1n 1996, Congress replaced AFDC with Temporary Assistance to Need Families (TANF). The goals of TANF were to provide assistance to low-income families with children so they could be cared for in their own home, promote job preparedness, reduce out-of-wedlock pregnancies, and encourage the formation and maintenance of two-parent families. Although TANF made few changes to federal child protection programs directly, it affected child welfare services by changing programs upon which it formerly relied.
  • In 1997, Congress Passed the Adoption and Safe Families Act of 1997 (ASFA; Public Law 105-89). ASFA represented the most significant change in federal child welfare law since the Adoption Assistance and Child Welfare Act of 1980. The act included provisions for legal representation, state funding of child welfare and adoption, and state performance requirements. In general, ASFA was intended to promote primacy of child safety and timely decisions while clarifying "reasonable efforts" and continuing family preservation. ASFA also included continuation funding for court improvement.25
  • In 1997, Congress amended the Individuals with Disabilities Education Act (IDEA; Public Law 105-17). IDEA provided funding to states to ensure that all children, regardless of disability, have the right to free, appropriate public education.
  • In 1998, David and Lucile Packard Foundation awarded NACC its first grant to study the association's development potential, followed by a grant to conduct Strategic Planning for a broad-based association development program.
  • In 1998, the NACC received the Meritorious Service to the Children of America Award presented by the National Council of Juvenile and Family Court Judges.
  • Congress passed the Chafee Foster Care Independence Act in 1999 (Public Law 93-568). The Act provided funding and services for youth who have "aged out" of the child welfare system.
  • In 2000, Congress passed the Child Abuse Prevention and Enforcement Act (CAPEA; Public Law 106-177). CAPEA focused on improving the criminal justice system's ability to provide timely, accurate criminal-record information to agencies engaged in child protection, and enhancing prevention and law enforcement activities.
  • In 2001, Congress reauthorized the Stewart B. McKinney Homeless Assistance Act (McKinney-Vento; Public Law 100-77) as part of the No Child Left Behind Act. McKinney-Vento provided emergency assistance for homeless children and youth. The Act required that such youth be given a free and appropriate public education, and required schools to remove barriers to their enrollment, attendance, and success in school.
  • In 2001, the NACC was awarded a grant from the U.S. Dept. of HHS Children's Bureau to create a national program to certify lawyers as specialists in child welfare law.
  • In 2001, the NACC adopted Recommendations for Representation of Children in Abuse and Neglect Cases.
  • In 2004, the ABA recognized child welfare law as a legal specialty and designated the NACC as the certifying agency.
Endnotes
1. Most of the following information is adapted from Ventrell, Marvin, "Evolution of the Dependency Component of the Juvenile Court" Children's Legal Rights Journal, Volume 19, Number 4, Winter 1999-2000.
2. Child Abuse Prevention and Treatment Act (CAPTA) as amended by Keeping Children and Families Safe Act of 2003, 42 U.S.C. § 5106(g) (2003).
3. See, 2003 Child Abuse and Neglect Statute Series Statutes-at-a-Glance: Mandatory Reporters of Child Abuse and Neglect, National Center on Child Abuse and Neglect: National Clearinghouse on Child Abuse and Neglect Information, National Adoption Clearinghouse (2003). Available at: http://www.childwelfare.gov/systemwide/laws_policies/statutes/mandaall.pdf
State Statute Series [hereinafter NCCAN Statute Series 2003].
4. R. K. Oates, The Spectrum Of Child Abuse (1996). See also Sagatun & Edwards, supra note 10.
5. Id.
6. Id.
7. Id.
8. U.S. Department of Health and Human Services, Administration on Children, Youth and Families. Child Maltreatment 2003 (Washington, DC: U.S. Government Printing Office, 2005) [hereinafter cited as Child Maltreatment 2003]. Available at:
http://www.acf.hhs.gov/programs/cb/pubs/cm05/index.htm see also U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION FOR CHILDREN AND FAMILIES, THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996) [hereinafter cited as NIS-3].
9. U.S. Advisory Committee on Child Abuse and Neglect.
10. Child Maltreatment 2003
11. It is commonly acknowledged that many incidence of child maltreatment are never reported. Additionally, states sometimes fail to report nationally information reported to the state. Child Maltreatment 2003.
12. Child Maltreatment 2003.
13. Helfer, supra note 3.
14. Id.
15. De Mause, The History Of Childhood (1974).
16. Langer, History Of Childhood Q.(1973).
17. Helfer, supra note 3.
18. Id.
19. Ex Parte Crouse, 4 Whart. 9 (Pa. 1839).
20. 321 U.S. 158 (1944).
21. Caffey, Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma, 56 Am. J. Roentgenology 163 (1946).
22. Kempe, Silverman, Steele, Droegmueller & Silver, The Battered Child Syndrome, 181 JAMA 17 (1962).
23. 13 Cal. App. 3d 504 (1971); see also Estelle v. McGuire, 502 U.S. 62 (1991) and State v. Henson, 33 N.Y.2d 63 (1973).
24. In re Jamie TT, 191 A.D. 132; 599 N.Y.S. 2d 892 (3d Dep't. 1993).
25.  Rollin, Legislative Update, ABA Child Law Practice, Vol. 16, No. 11, 166-171 (1998).
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