In The Brothers Karamazov, Ivan Karamazov delivers a diatribe on theodicy: assailing Christianity and faith in a God who lets innocent children suffer, he states that there is a "peculiar quality [that] exists in much of mankind--this love of torturing children, but only children." (1) Undeniably, the physical and psychological abuse of children is a recurrent theme in Fyodor Dostoevsky's fiction and journalism, particularly in his Writer's Diary (2)
In this Article, I explore this fixation with childhood suffering and suggest that Dostoevsky implicitly predicted the core tenets of a relatively new legal movement, called "therapeutic jurisprudence" ("TJ"), (3) and I broach the question of why this matters. In an effort to provide an answer, I identify Dostoevsky as an early ombudsman for therapeutic juvenile justice and link him to the voiceless "polyphonic" voices in The Brothers Karamazov and to what I denominate the poly-personae of A Writer's Diary. (4)
TIMELESS VOICELESS, INVALIDATED, AND INVOLUNTARY CHILDREN
Although child abuse has always existed, efforts to redress it only began to make real strides in the nineteenth century. (5) Industrialization and an increasingly urbanized economy increased stress on families and made child welfare a societal concern. (6) Conterminously, the parens patriae doctrine (7) gave states the right and obligation to protect members of society who could not fend for themselves. (8) As the Mary Ellen saga (9) will illustrate, old mechanisms that putatively ministered to neglected, abandoned, or abused children did not merely falter, but also not infrequently, exacerbated children's suffering. (10) Early state laws authorizing the removal of neglected or abused juveniles from families were either ignored or resulted in placing children in institutions, which were designed more for adults and thus failed to accommodate the needs of their fragile young wards. (11) In fact, some facilities were so abysmal that they caused harm and even premature death. (12)
In the United States, as in Dostoevsky's Russia, parents were presumed to have absolute control over their children. (13) Nineteenth-century statutes enacted to protect minors from assault and neglect tended to be underutilized partly because the legal system viewed offspring as chattel and thus gave "owners" nearly limitless dominion over children. (14) There exists, in fact, a legion of United States Supreme Court decisions cementing that ownership mindset in place: these not only sanctify family autonomy, but also recognize parental rights to custody of their children, to keeping the family together, and to controlling child-upbringing. (15) Consequently, states refrained from meddling in family business or even questioning the longstanding bastion of parental despotism.
The eye opener occurred in 1873 when a humanitarian, Etta Angell Wheeler, met nine-year-old Mary Ellen Wilson, who is the immortalized emblem of child-protectionism. (16) Mary Ellen was born in New York City in 1864 to Francis and Thomas Wilson. (17) When Mary Ellen's father died, her mother, compelled to enter the workforce, found that she could no longer care for her infant. (18) As was "common practice" in those days, Francis boarded her baby with another woman. (19) But when Francis defaulted in payments and stopped visiting her daughter, the caretaker deposited Mary Ellen with the City's Department of Charities. (20)
The Department of Charities made a decision with catastrophic consequences: with practically no due diligence or documentation, the Department placed Mary Ellen in the home of a woman named Mary and her husband, Thomas McCormack, who claimed to be the child's biological father. (21) In what is a creepy form of deja vu, that putative father died shortly after he and his wife took the baby. (22) When the widow next married Francis Connolly, the couple moved to a tenement that became Mary Ellen's torture chamber. (23) Neighbors actually knew of the atrocities that transpired there, but said nothing and did nothing. (24) Eventually, the Connolly family moved elsewhere. (25)
One day, a poor working woman, an original Connolly neighbor, met Mrs. Etta Angell Wheeler and told her about a little girl, imprisoned in a dark room, who was repeatedly whipped. (26) Mrs. Wheeler managed to find the family in their new location and on a bitterly cold December day saw a nine-year-old who was so emaciated that she appeared to be only four or five (27):
From a pan set upon a low stool she stood washing dishes, struggling with a frying pan about as heavy as herself. Across the table lay a brutal whip of twisted leather strands and the child's meagre arms and legs bore many marks of its use. But the saddest part of her story was written on her face in its look of suppression and misery, the face of a child unloved, of a child that had seen only the fearsome side of life. (28) Although New York law permitted the removal of neglected children from their caregivers, Mrs. Wheeler could not get the authorities to act. (29)
Seizing on a novel idea, Mrs. Wheeler's niece convinced her aunt to seek help from Mr. Henry Bergh, (30) a leader of the animal humane movement and founder of the American Society for the Prevention of Cruelty to Animals ("ASPCA"). (31) Her niece pleaded, "You are so troubled over that abused child, why not go to Mr. Bergh? She is a little animal surely." (32) Bergh, along with Elbridge T. Gerry, the ASPCA lawyer, swooped in armed with a petition for a writ of homine replegiando, (33) an old English device for freeing a person from the custody of another. (34) Bergh and Gerry, with significant ties not just to the legal system, but also to the press, alerted New York Times journalists and others, who published accounts of the wretched, scarred child. (35)
When Mary Ellen first appeared at her hearing, she was still in her shredded rags and had bruises all over her body. (36) She also displayed a fresh deep gash from her left eyebrow all the way down her cheek because Mary had recently lacerated the child with scissors, narrowly missing her eye. (37) Long before TJ (38) was even conceived, presiding Judge Lawrence intuitively did something right: he encouraged Mary Ellen to tell her story in her own voice:
I don't know how old I am. I have no recollection of a time when I did not live with the Connollys.... Mamma has been in the habit of whipping and beating me almost every day. She used to whip me with a twisted whip--a raw hide. The whip always left a black and blue mark on my body. I have now the black and blue marks on my head which were made by mamma, and also a cut on the left side of my forehead which was made by a pair of scissors. She struck me with the scissors and cut me[.] (39) Mary Ellen said that she had never been kissed or caressed, never went outside, and knew that she would be whipped if she ever tried to speak to anyone. (40) More than a century before TJ, the judge imbued this soul with what we now call the empowerment elements: that is, he gave her "voice, validation and voluntary participation" in the very proceeding that would change her life. (41) When Mary Ellen said, "I do not want to go back to live with mamma, because she beats me so," (42) the judge genuinely listened, heard, and took her seriously. Evoking the homine replagiando provision of the Habeas Corpus Act, he had the child extricated from her abuser. (43) Initially, he sent Mary Ellen to a shelter while "mamma" was convicted of felonious assault and sentenced to one year of hard labor in the penitentiary. (44)
The next phase of Mary Ellen's life is what might be considered a near anomaly in abuse scenarios: namely, a tripartite happy ending. First, while these victims can and do end up irreversibly destroyed or dead, Mary Ellen flourished. (45) When the court wanted to house Mary Ellen in a shelter for adolescent girls, Mrs. Wheeler again interceded. (46) She persuaded the judge to let Mary Ellen reside with her own mother, Sally Angell, "whose heart and home were always open to the needy." (47) When Angell died, Etta's sister and her husband stepped in to provide Mary Ellen with a stable and nurturing environment. (48)
Second, while abuse is typically transmitted from one generation to another, Mary Ellen defied the pattern by raising three happy, healthy children. (49) When she was twenty-four, Mary Ellen married a good man, a widower, and had two daughters, Etta (named after Etta Wheeler) and Florence, who both became teachers. (50) She also served as a foster parent to another child, Eunice, who became a businesswoman. (51) Mary Ellen's children and grandchildren "described her as gentle and not much of a disciplinarian," or in Etta's words, "[I]t has been [Mary Ellen's] joy to give a happy childhood in sharp contrast to her own." (52) Third, but more expansively, Mary Ellen's story alerted the world to a hidden epidemic, that of child abuse, and the need for radical legal reform. (53)
The United States Supreme Court once said that it should not "discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests." (54) Today, the millions of Mary Ellens out there, so few with happy endings, shed some doubt on the Court's bald contention. Professor Hafemeister's research discloses that "[r]oughly 2,400 children are found to be victims of abuse per day, three to five children die from child abuse every day (44% of which are younger than one year of age), and 18,000 children per year sustain disabilities as a result of child abuse." (55) While numbers speak volumes, the wreckage of Baby Brianna, (56) Lauren Kavenaugh, (57) Terrell Peterson, (58) and a child of Mayra Solis (59) convey a lot more. Sadly their narratives are not sui generis, (60) but instead paradigmatic, and in an uncanny way almost plagiarize the evidentiary vignettes that Ivan Karamazov presents in...