A Primer on Criminal Child Abuse and Neglect Law

• Date: 01 June 2013
• Author: Douglas E. Abrams
• Published date: 01 June 2013
• DOI: http://doi.org/10.1111/jfcj.12006

A Primer on Criminal Child Abuse and

Neglect Law

By Douglas E. Abrams

ABSTRACT

This article surveys major aspects of criminal child abuse and neglect law

encountered by judges, prosecutors and defense lawyers, child advocates, and child

care professionals. The author, whose casebook, Children and the Law: Doctrine, Policy

and Practice (West 4th ed. 2010) (with Sarah H. Ramsey), is required reading in law

schools throughout the United States, analyzes both constitutional and statutory law.

THE NATURE OF CRIMINAL ENFORCEMENT

The Roles of Constitutional and Statutory Enforcement

In 2010, the Juvenile and Family Court Journal published my article, A Primer on

Child Abuse and Neglect Law.1Civil and criminal maltreatment law are intimately related

because much conduct that would support a civil abuse or neglect petition would also

support a criminal prosecution. Child maltreatment cases may be referred to law enforce-

ment authorities by child protective agencies, families, victims, physicians, schools, and

other persons. State abuse and neglect reporting acts typically require child protective

agencies to share reports with law enforcement.

“One of the principal tasks of law-enforcement personnel is the investigation of

reports of child abuse. Most departments have specially assigned investigators for child

abuse cases and these persons are either on duty or on call twenty-four hours a day.”2The

161Juv.and Fam.Ct. J. 1 (Winter 2010) (with Sarah H. Ramsey).

2William G. Bailey,The Encyclopedia of Police Science 66 (1995).

Douglas E. Abrams, JD, is a law professor at the University of Missouri, where he teaches children

and the law and family law. He has served as an Associate Editor of the Juvenile and Family Court Journal since

1993. Correspondence: abramsd@missouri.edu

Editor’s Note: This article is adapted from Chapter 5 of Children and the Law in a Nutshell, by Sarah

H. Ramsey and Douglas E. Abrams (4th ed. 2011), published by West Academic. (To purchase a copy, call

888-728-7677 or visit legalsolutions.thomsonreuters.com. If you are a professor considering this text for

adoption and would like to receive a complimentary copy, call 800-313-WEST (9378) or e-mail

westacademic@thomsonreuters.com. Reprinted by permission.

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Juvenile and Family Court Journal 64, no. 3 (Summer) 1

© 2013 National Council of Juvenile and Family Court Judges

task is no small matter because acts of child abuse committed by parents and other

caretakers comprise about one-fifth of violent crimes against all children, and more than

one-half of crimes against children two or younger, that are reported to police.3

In child maltreatment cases, the goals of civil and criminal intervention are related

yet distinct. Civil intervention seeks to protect the child by treating the child and family

and, when necessary, removing temporary or permanent custody. Criminal enforcement

seeks to protect the child by prosecuting offenders. Civil proceedings focus primarily on

the condition of the child and family; criminal prosecutions focus primarily on the

defendant’s guilt or innocence.

Ideally child protective agencies and law enforcement cooperate to fashion a coor-

dinated response about whether to move against particular acts of maltreatment civilly,

criminally or both.4The decision may balance several factors, including these:

The seriousness of the alleged conduct. Serious injury to the child may be prosecuted, but one

slapping incident might not be.

The perpetrator’s evident state of mind. Prosecution may be more likely if the perpetrator acted

wantonly,than if the maltreatment smacked of immaturity or frustration, or of not knowing

how to raise a child.

The perpetrator’s amenability to treatment. Prosecution may be more likely if the perpetrator

resists treatment or if civil authorities have previously tried treatment to no avail, but less

likely if the perpetrator appears willing and perhaps able to respond to treatment.

The strength of the proof. The criminal burden of proof is beyond a reasonable doubt; the civil

burden is lower, either a preponderance of the evidence or clear and convincing evidence.

The burden may be particularly important in sexual abuse cases, where the child victim

(often the only eyewitness other than the perpetrator) may be unwilling or unable to testify,

or may be ineffective on the stand.

Community outrage. If the abuse or neglect is publicized and outrages the community,

prosecution is more likely, perhaps partly for deterrent effect. Publicized acts are also likely

to be relatively serious, thus relating to the first factor listed above.

The remedy’s likely effect on the child and family. Would branding a parent with a criminal

record further hurt the family? If the parent has other children, should the parent be

incarcerated? If authorities do not seek incarceration or termination of parental rights,

would the child and family be better off if the parent is treated civilly? Wouldcivil remedies

(such as temporary loss of custody or termination of parental rights) better protect the child,

and impose greater punishment on the parent, than a prison sentence?

Predictions of future abuse or neglect. Even if the abuse or neglect does not appear particularly

serious now, authorities may invoke the criminal process to deter the perpetrator before the

conduct escalates and threatens death or serious injury to the child.

Parallel Proceedings

Child protective agencies and the prosecutor may employ both the civil system’s

protective function and the criminal justice system’s punitive function arising from the

same incident of maltreatment. In People v. Moreno, for example, the Illinois juvenile court

dismissed the civil abuse petition because the state had not shown that the child’s injuries

3 David Finkelhor & Richard Ormrod, Child Abuse Reported to the Police (OJJDP 2001).

4E.g., Douglas J. Besharov, Combatting Child Abuse: Guidelines for Cooperation Between Law Enforce-

ment and Child Protective Agencies,24Fam. L.Q. 209 (1990).

2 | JUVENILE AND FAMILY COURT JOURNAL / Summer 2013