III. Child Abuse and Neglect: The Legalities
While most laws about child abuse and neglect fall at the state levels, federal legislation provides a foundation for states by identifying a minimum set of acts and behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA), which stems from the Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as, at minimum, “(1) any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse, or exploitation; or (2) an act or failure to act which presents an imminent risk or serious harm.”
Using these minimum standards, each state is responsible for providing its own definition of maltreatment within civil and criminal statutes. When defining types of child abuse, many states incorporate similar elements and definitions into their legal statutes. For example, neglect is often defined as failure to provide for a child’s basic needs. Neglect can encompass physical elements (e.g., failure to provide necessary food or shelter, or lack of appropriate supervision), medical elements (e.g., failure to provide necessary medical or mental health treatment), educational elements (e.g., failure to educate a child or attend to special educational needs), and emotional elements (e.g., inattention to a child’s emotional needs, failure to provide psychological care, or permitting the child to use alcohol or other drugs). Failure to meet needs does not always mean a child is neglected, as situations such as poverty, cultural values, and community standards can influence the application of legal statutes. In addition, several states distinguish between failure to provide based on financial inability and failure to provide for no apparent financial reason.
Statutes on physical abuse typically include elements of physical injury (ranging from minor bruises to severe fractures or death) as a result of punching, beating, kicking, biting, shaking, throwing, stabbing, choking, hitting (with a hand, stick, strap, or other object), burning, or otherwise harming a child. Such injury is considered abuse regardless of the intention of the caretaker. In addition, many state statutes include allowing or encouraging another person to physically harm a child (such as noted above) as another form of physical abuse in and of itself. Sexual abuse usually includes activities by a parent or caretaker such as fondling a child’s genitals, penetration, incest, rape, sodomy, indecent exposure, and exploitation through prostitution or the production of pornographic materials.
Finally, emotional or psychological abuse typically is defined as a pattern of behavior that impairs a child’s emotional development or sense of self-worth. This may include constant criticism, threats, or rejection, as well as withholding love, support, or guidance. Emotional abuse is often the most difficult to prove and, therefore, child protective services may not be able to intervene without evidence of harm to the child. Some states suggest that harm may be evidenced by an observable or substantial change in behavior, emotional response, or cognition, or by anxiety, depression, withdrawal, or aggressive behavior. At a practical level, emotional abuse is almost always present when other types of abuse are identified.
Some states include an element of substance abuse in their statutes on child abuse. Circumstances that can be considered substance abuse include (a) the manufacture of a controlled substance in the presence of a child or on the premises occupied by a child (Colorado, Indiana, Iowa, Montana, South Dakota, Tennessee, and Virginia); (b) allowing a child to be present where the chemicals or equipment for the manufacture of controlled substances are used (Arizona, New Mexico); (c) selling, distributing, or giving drugs or alcohol to a child (Florida, Hawaii, Illinois, Minnesota, and Texas); (d) use of a controlled substance by a caregiver that impairs the caregiver’s ability to adequately care for the child (Kentucky, New York, Rhode Island, and Texas); and (e) exposure of the child to drug paraphernalia (North Dakota), the criminal sale or distribution of drugs (Montana, Virginia), or drug-related activity (District of Columbia).
IV. Corporal Punishment Versus Child Abuse
One of the most difficult issues with which the U.S. legal system must contend is that of allowing parents the right to use corporal punishment when disciplining a child, while not letting them cross over the line into the realm of child abuse. Some parents may abuse their children under the guise of discipline, and many instances of child abuse arise from angry parents who go too far when disciplining their children with physical punishment. Generally, state statutes use terms such as “reasonable discipline of a minor,” “causes only temporary, short-term pain,” and may cause “the potential for bruising” but not “permanent damage, disability, disfigurement or injury” to the child as ways of indicating the types of discipline behaviors that are legal. However, corporal punishment that is “excessive,” “malicious,” “endangers the bodily safety of,” or is “an intentional infliction of injury” is not allowed under most state statutes (e.g., state of Florida child abuse statute).
Most research finds that the use of physical punishment (most often spanking) is not an effective method of discipline. The literature on this issue tends to find that spanking stops misbehavior, but no more effectively than other firm measures. Further, it seems to hinder rather than improve general compliance/obedience (particularly when the child is not in the presence of the punisher). Researchers have also explained why physical punishment is not any more effective at gaining child compliance than nonviolent forms of discipline. Some of the problems that arise when parents use spanking or other forms of physical punishment include the fact that spanking does not teach what children should do, nor does it provide them with alternative behavior options should the circumstance arise again. Spanking also undermines reasoning, explanation, or other forms of parental instruction because children cannot learn, reason, or problem solve well while experiencing threat, pain, fear, or anger. Further, the use of physical punishment is inconsistent with nonviolent principles, or parental modeling. In addition, the use of spanking chips away at the bonds of affection between parents and children, and tends to induce resentment and fear. Finally, it hinders the development of empathy and compassion in children, and they do not learn to take responsibility for their own behavior (Pitzer, 1997).
One of the biggest problems with the use of corporal punishment is that it can escalate into much more severe forms of violence. Usually, parents spank because they are angry (and somewhat out of control) and they can’t think of other ways to discipline. When parents are acting as a result of emotional triggers, the notion of discipline is lost while punishment and pain become the foci.