Child Neglect in the Military Community Are We Neglecting the Child?

• Author: Major Liso M. Schenck
• Pages: 01

Zan Thomas Alezander

Born Apnl20,198&Died Januaiy 7,1981

[Ian Alexander died as1 n result of madequate nourish-ment and medical attention, according to medical experts.

. . . The child was emaciated . . hts body was positively frigrd. Among other things, the physicians suspected that he had beenploced in a refrrgerator . . .[The aceusedl and hLs krfe would leme the baby unattended at home ,four o i Foe times a week while they went to the base to Socialize.',

. . [Tlhey left Zan alone m the npnTtment uhde they transacted certain busmess and "soccalired until about 2300 haws that eoenrng . . iP1athologists estimated that Ion hod been dead for 7 hours at that time and it was not for another I1 hours that the death was drseouered.--United States U. Alexander'

*Judge Ad>ocafe General's Carpi, United States Army Currently assllgned as an Initrnm~. United States Mll~tav

Academy B A , cum iauda. 1983, Prowdsnce College. hl PA, 1966, Fairleigh Dieluneon University: J D , cum buds, 1969, Sotre Dame Law School. LL MI 1995, The Judge Adwcate Generak School. Omred State. Army Formerly assigned as Deputy Staff Judge Advocate. Chisf of Crlm~nsl

Law,

Chief of Claims and Legal Aamstanee. United Srates Army Aviation Center. FortRucker, Alabama. 1991-94: Acting Command Judge Advacate, Chief af Claims and Legal kiiatanee. 23d Suppart Group, Camp Humphreyi. Republic of Korea. 1991, Brigade Trial Counsel, 2d Infantw Dmmon. Republic of Korea. 1990 Funded Legal Educetian Propam 1986.89. .Assistant Secreta?. of the General Stan. Fielding Team Member, Project Officer, Cammunieatian~-Electronles Command. Fort Manmouth. New Jemy 1983-86 Previous publicatma Operatiane and Training Dwman Nafe. on Standards S,strm, .am Law, Oet 1989. at 40 This article ten dmSemarion that the author submitted to satisfy, in pan the Master of Laws degree far the 43d Judge Advocate Ofher's Grsduare Caurse, The Judge Adracate Generala Sehaal, United States Arm) Charlotiesnlle. vlrglnm

18 M J 84. 85-66 (C hl A 19W

19961 CHILD NEGLECT IN THE MILITARY 1

Absent a stotute or a punitiLe reguiator) pro~ision this court declines to enter the rnoross uhrch uould be created by holding that child negiect, stonding done, constitutes on offense under Article 134, CC.\IJ2-1991 opinion of the Cnited States Army Court of Crtminal Appeals IACCA9 on reversing a special court-martial eonLiction for chdd neglect in ~iolntion of Article 134, Cmform Code Of~WLlLtnri. Justice IZICAWJJ

I Introduction

Had someone discovered Ian Thomas Alexander before he died. his parents' conduct may have been defined as child neglect. Although experts differ about its definition, the term "child neglect" usually encompasses "e parent's or orher careraker's failure to provide bsjic physical health care. superv~~ion.numition personal hypne, emotional nurturing. education, or safe housing It also includes child abandonment or expulsmn, and custody-related forms of inattention to the chdda needs ' 3

Unfortunately, in mmt cases of crimmal child neglect in rhe military. convictions only come with the death of rhe victim Sumeroua court decisions hare upheld convictions for neglectful conduct that results ~n unpremeditated murder.6 Involuntary mandaughter,' and negligent homie1de6 for extreme child neglect

anide ~ ~ 1 1 refer to the courts by the names applicable at the * m e that the oeci~ions

were rendered

ier clothing, medical mre. supervision, or education

~ L C M J an 118 2 19848

-Id art 119,Id art 134

resulting in B fatality.9 As the COMA has Indicated, "The notion that parents can be cnm~nally responsible for murdering their children by fading to provide the necessities of life LS well established "10

When B child's death results from abuse, prosecutors and com. manders may choose from many pumtwe options; the same 1s true

if a child LS Injured from physical abuse. However, if authorities dis. cover neglect of a child prior to death, absent evidence of actual physical abuse, punitive options are limited and may vary from jurisdiction to jurisdiction. In child neglect cases, military prosecutors can charge the violation of ensting provisions in the UCMJ, state statutes assnnilated into the UCMJ through the Federal Assimilative Crimes Act,ll or punitive installation regulations. However, because Ian Alexander's death occurred off post inGermany, even if authorities had discovered the neglect pnor to his death, no state criminal provmon would have been available for assimilation Furthermore, no punitive regulation existed on which the government could base B charge of cnmmal child neglect against a military parent.12

Furthermore, based on recent conflicting decisions from the various service courts of criminal appeals, Army trial counsel may be unable to successfully prosecute child neglect under Article 134, UCMJiither clause one (conduct prepdiem1 to the good order and discipline of the armed forces1 or clause two (conduct of a nature to bnng discredit upon the armed forces)-while Ar Farce trial eoun-sel retain this aption.13 Army trial counsel must resort to other punitive articles and may charge child neglect only if there is em-dence of physical abuse or if there is a state-provided cnminal statute for child neglect.

The military's primary response to the problem of child

" ~ a a a German natianal. and the

erimei were cammitred on German 8d" Valdii, 40 M J st 496 n 2 The COMA added. 'This Court has no cemiiance aiwhat. if an" oraceedineb =ere mbtltufed or

lWCMJ art 134 (1964) Compare United States \ Wallace 33 hl J 661(.4 C Y R 1981) Idamiinng a claube 1. hnlcle 134 specification for child neglect), uiih United State8 v Foreman ACM 28008 (A FC M R 2; la^ 19901 iflndme that the accused failed LO admit to criminal child neglect m the pr&dinee mqv& but ipeciflcally holding that child neglect could he charged under Article 1341

-SAdditmnalI>, the mother of the vi~rim

neglect has been the Department af Defense (DODI Fam~ly Advocacy Program and the individual services' family advocacy programs that implement the DOD program. However, family advocacy programs do not focus on the punitive options av.ahhle to cornmanders and prosecutors Family adtocacy programs generally do nor provide or contemplate punitive measures agamrt perpetrators of child neglect For example, although the goal of the DOD program IEto protect the it is limited in large part to educatmn rehabilitation, treatment. and monitoring of parents who commit offens-es against the child 15 In contrast, commanders ma) hare different objectives and problems that differ from, and are in addition to, those of the family advocacy program when dealing with crimes sol. diers commit against their children

Problems that occur at home can affect milltar) members. their families, and the readiness af the units iVith increased deployments, dual military couples, and increased chdd care costs. child neglect 16 likely to increase Service members. commanders and prosecutors need established standards for parental responsibilities Established standards will lessen the likelihood of disparate treatment of offenders ihile providing notice to the mmlitary community of parental responsibilities

This article examines the military's inadequate criminal response to the problem of child neglect, and explores available pumtiue options agamet military service members and dependent spouses who commit cnm~nal child neglect The solution is to provide a uniform standard for parental responsibilities far the armed eervices and clear punitive options for commanders. All parents m the militaq- community will receive adequate, consistent guidance,and criminal liability for parental reiponaibilities will not vary from inetallation to installation

This article begins by defining cnminal child neglect and reiieamg Society and the military's delayed response to the problem The military has responded reluctantly to child neglect through family advocacy programs and "administrative measures "

However, this combined response 1s incomplete and inconsistent. Furthermore, family advocacy programs and administrative mea-sure~eau~edifficulties in area8 of exclusive jurisdiction and faall over~eae Using the ieeults of a survey of army judge advocates as support, this article demonstrates how many installations have promulgated regulations that vary widely from location to location and define parental responsibilities differently.

Child neglect is an identifiable, harmful, and significant prob. lem Intervention is warranted and overrides unwarranted constitutional concerns about interfering with the family umt. This article illustrates how states overcome constitutional concerns and define criminal child neglect. A review of these state criminal neglect statutes reveals them to be meonsmtent and incomplete.

Many possible methods to provide the military cammumty uniform standards for parental responsibilities exist. This article addresses the following alternatives: a new punitive article for the UCMJ an additional criminal provismn for Title 18; and executive branch initiatives pratdmg punitive options. After recommending a solution, this article illustrates possible ways that the militaly can use criminal sanctions and how the military community will benefit. Same action 1s better than none: by providing my uniform standards to the urnformed service~, the DOD will improve the present situation.

I1 Defining Child Neglect

Child abuse consistently steals public attention away from child neglect. This can partially be explained by the readily apparent wrongfulness of child abuse and the difficulty in defining child neglect. Deciding ahen child neglect becomes criminal is not easy. In the past, eaciety has tended to combine child abuse and neglect in one category. However, the term are not the same. "Abuse...