three elements that distinguishes physical abuse from corporal punishment

The first involved a cataloging and examination of all the states civil legislation defining child abuse and reasonable corporal punishment. Unable to load your collection due to an error, Unable to load your delegates due to an error. McCurdy William E. Torts Between Persons in Domestic Relations. The former provide guidance to mandated reporters and the latter establish the basis for the state to exercise jurisdiction over the child and family.18, In general, states define physical abuse of a child to include harm or threatened harm to a childs health or welfare, nonaccidental physical injury, or serious physical injury inflicted by an act or omission of a parent or another adult responsible for the childs care. McKinley Jesse. Minns RA. Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment. The standard that defines unlawful corporal punishment must provide the relevant legal actors with the basis to classify such punishment as abuse. Third, the necessity standard risks unnecessary and potentially harmful interventions in the family, an effect that designers of maltreatment law ought to avoid whenever possible. 2151.031(D). In the context of this article, the law currently permits reasonable corporal punishment, reasonableness traditionally being defined according to community norms.204 This law is and has always been problematic for those in the community whose norms diverge, for example, because of differing religious or cultural beliefs. This requirement, in turn, is good for children and families because it forces parents to consider ex ante their decision and whether it conforms with the norms of the community or legal rules otherwise. The second prong of our proposed two-pronged corporal punishment requires an evaluation of the reasonableness of the force used. Discerning functional impairment is easiest in circumstances where children are old enough to express their concerns, or else to exhibit failures or inabilities in the exercise of their daily activities. Courts often consider how much force and how many strikes parents employ when they administer physical discipline, as well as whether they use an object such as a belt or paddle.103 The cases suggest that courts view with more suspicion a parent who uses extreme force to strike a child repeatedly with a paddle or belt than one who swats a child a couple of times with an open hand; correspondingly, such discipline is more likely to be found to exceed the bounds of reasonableness.104 To some extent, these factors simply correspond to the degree or severity of harm inflicted on the child. Guidelines for the decisionmaker come from features of both the parents behavior and the childs reaction. For example, all of the CPS officials interviewed emphasized the importance their jurisdictions substantiation protocols place on the childs sense of safety in the home, but several cautioned that this criterion requires a thorough evaluation of why the child is afraid. Federal government websites often end in .gov or .mil. Corporal punishment sets clear boundaries and motivates children to behave in school. As a result, decisionmaking about whether an injury or incident remains in the realm of family business or has crossed the line into the impermissible varies, reflecting a multiplicity of purely personal viewpoints, religious and political ideologies, and academic or disciplinary training and requirements. As one court pointed out, an object may create a barrier between the parent and child and prevent the parent from realizing how hard he is striking the child.105 Uncontrolled, forceful striking or the use of an object to strike a child also might increase the risk of severe injury if the child squirms or otherwise moves as the discipline is being administered.106 Interestingly, there is some evidence that parents choose to discipline with an object instead of a hand because they believe doing so is less harmful to the child. Corporal punishment triggers harmful psychological and physiological responses. Additionally, and again regardless of the constitutional status of the right to use corporal punishment, most child-maltreatment investigations implicate constitutional limits on state searches and seizures, including the requirement that the state establish a likelihood of maltreatment before it intervenes.200 Second, most CPS investigations result in a finding of no maltreatment. In sum, scientific findings have established that the experience of corporal punishment has consequences for the child. WebIn this Article, I argue that this thick conception of parental rights shields significant intrafamilial harms, specifically parental corporal punishment. Physical punishment appeared to be highly prevalent at both primary and secondary school levels. All Rights Reserved, Victims of Child Abuse, Domestic Violence, Elder Abuse, Rape, Robbery, Assault, and Violent Death, A Manual for Clergy and Congregations, Special Edition for Military Chaplains, Section I: Child Abuse and Neglect, Effects of Child Abuse on Children: Abuse General, Effects of Child Abuse on Children: Child Sexual Abuse, Injuries to Children: Physical and Sexual Abuse, Effects of Child Abuse on Adults: Childhood Abuse, Effects of Child Abuse on Adults: Childhood Sexual Abuse, Child Physical Abuse and Corporal Punishment, Nationwide Crisis Line and Hotline Directory. Although the line between reasonable corporal punishment and abuse is drawn initially by CPS and only sometimes and subsequently in a judicial proceeding, the practice required by and principles underlying these rules ought to apply throughout the process. In turn, institutional treatment of and outcomes for children and families are often inconsistent.2. Jaffee Sara R, et al. The page also includes information on what certain States consider reasonable and age-appropriate discipline. 206. Consistent with this argument, policy reforms that can ameliorate the three negative effects targeted by this articlethe failure of existing law to satisfy its expressive function, inconsistent outcomes, and a risk of false-positive and false-negative findings of maltreatmentinclude changes to the structure of some child-abuse statutes and clarification of their included terms. The three legal institutions responsible for where and how the states draw the line between reasonable corporal punishment and abuse are the state legislatures, which announce and define allowances and prohibitions in the first instance; CPS agencies and professionals, also known as departments of social services or DSS, which administer the legislative mandates and thus most directly engage families and children; and the courts, which are charged with interpreting legislation in the last instance, and which thus act as a check on decisions made by CPS. Parents and lay reporters typically operate on a know it when you see it basis, whereas CPS professionals and courts are somewhat, but not ever entirely, constrained in this exercise by the norms of their respective disciplines, social work, and law. Furthermore, the relation between corporal punishment and poor child outcomes is an empirical one, meaning that not every case of corporal punishment is followed by child maladjustment. This literature distinguishes the experience of physical abuse from the experience of corporal punishment, although corporal punishment is usually graded on a continuum of severity and chronicity that ends in abuse. After accounting for socioeconomic and demographic characteristics, only Ninitial exposure to physical abuse was significantly This gap between statutory requirements and on the street practice is well known in political science and public-policy analysis more generally.65, CPS agencies and social workers across the country vary in the extent to which they are administratively constrained as they evaluate individual cases of alleged abuse. Parent and caregiver support through information and skill-building sessions to develop nurturing, non-violent parenting. Child Welfare Information Gateway, Definitions of Child Abuse and Neglect. Around 60% of children aged 214 years regularly suffer physical punishment by their parents or other caregivers. This single rule, in turn, would potentially reduce the number of incidents in which children were injured in the disciplinary setting and, correspondingly, the number of interventions by the state in the family. The Privilege of Reasonable Corporal Punishment. Corporal punishment is likely to lead to functional impairment to the extent that the child (even a toddler or infant) experiences and interprets the parents actions as rejecting, hateful, or threatening. The cases suggest that courts are more inclined to classify a disciplinary measure as abuse when the act is administered against a young child or one with physical or mental disabilities.100 The courts consideration of these characteristics can be explained in two ways. 2021 Jul;117:105089. doi: 10.1016/j.chiabu.2021.105089. Referring to this article:Child Abuse: An Overview was written by C. J. Newton, MA, Learning Specialist and published in the Find Counseling.com (formerly TherapistFinder.net) Mental Health Journal in April, 2001.Use or reference to this article on the Internet must be accompanied by a link to the page you cite. This standardas opposed to a weaker or stronger. The Great Smoky Mountains Study of Youth Functional Impairment and Serious Emotional Disturbance. Bethesda, MD 20894, Web Policies This inability to understand cause and effect is significant because children may become functionally impaired as a result of even moderate levels of corporal punishment that they cannot understand as being for their own good.208 Perhaps the most well-known example of the use of science in this context is SBS.209 Without a formal construct in which to argue that discipline is appropriate (reasonable or unreasonable) in the circumstances, the relevance of such evidence may not be apparent to the maltreatment inquiry. There are no perfect parents, and everyone can imagine themselves to be damaged even by exceptional ones. Corporal punishment is defined as a physical punishment and a punishment that involves hitting someone.. Journal of Family Violence, 30(2) Norms are customary or widely held beliefs that may either influence or be influenced by law. As a library, NLM provides access to scientific literature. Abuse and Neglect: The Educators Guide to The Identification and Prevention of Child Maltreatment. This probability is based on matching the parents behavior and childs current status with a scientific literature that says if the parents behavior is. 198 In other words, when the discipline condition is not met, the parent has committed abuse and, in the civil or criminal context, an unprivileged assault or battery. Fineman Martha Albertson. MeSH Even when CPS decisionmaking is administratively constrained, however, personal and community ideology continues to play a considerable role in this process. Relevant evidence includes, among other things, evidence of traditional parenting practices and scientific evidence (both medical and social-science evidence) that is proffered to provide assistance to the court in understanding the effects of discipline and force in the circumstances. This judgment is not arbitrary, however, and can be made based on the meaning that the behavior communicates to the child and the meaning that the child makes of the pattern. Correspondingly, it acknowledges both that the state cannot replace parents as the childrens first[,] best caretakers, and that the state has a proper role to play when parents make too much of their rights and too little of their responsibilities, causing a net loss to their children in the process. When a norm has been established by the jury over a series of cases, judges may decline in future similar cases to submit the question to another jury on the ground that the matter has been amply settled. Child Maltreatment: Burden and Consequences in High-Income Countries. Stat. Young Kimberlie. These same states Considering emotional and developmental consequences is essential to the analysis, but it is also essential that these consequences be legitimate and serious. This, in turn, should result in more consistent case outcomes as well as fewer false-positive and false-negative findings of maltreatment. Psychometric properties of the Violent Experiences Questionnaire. In most of the countries with data, children from wealthier households are equally likely to experience violent discipline as those from poorer households. In other cases, harm must be inferred on the basis of medical and scientific knowledge of the likely effects of a particular kind of assault. Freisthler B, Price Wolf J, Chadwick C, Renick K. J Fam Violence. Relevant and reliable scientific evidence should take primacy over personal opinions, whatever their basis. Children in The Legal System: Cases and Materials. And they have increasingly relied on scientific research to conclude whether a particular parents behavior is likely to cause serious harm to the victim, as well as whether a childs symptoms are likely to have been caused by parents abusive behavior or by some other source, such as an accidental fall.156, Shaken Baby Syndrome (SBS), also known as abusive head trauma and the leading cause of abuse-related deaths in the United States each year, provides a model for the way scientific evidence has been used effectively by CPS and in the legal system.157 Frustrated parents of crying babies under the age of twelve months sometimes shake the baby back and forth or up and down in an effort to stop the crying. For example, North Carolinas CPS agencies employ a decision tree that requires classifying as neglect by inappropriate discipline any instance of corporal punishment that transgresses the agencies reasonableness criteria but that does not meet its abuse standards.36, Statutory definitions of physical abuse appearing in state family- or juvenile-court codes commonly except reasonable measures of physical discipline administered by parents.37 This exception reflects the longstanding common-law privilege of discipline, which provides that [a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education.38, Twenty-one states, along with the District of Columbia, except reasonable physical discipline from their statutory definitions of physical abuse. Coleman Doriane Lambelet. For a discussion of these and other nonnormative disciplines, see Renteln. Ordinary Physical Punishment: Is it Harmful? Evidence of the presence of these contexts is thus relevant to establishing child abuse. Two recent, rigorously conducted studies illuminate the picture. This evidence includes empirical findings about community norms and practices from both lay witnesses and survey experts, as well as scientific evidence that describes the contexts that cause children to suffer functional impairments.227 This evidence should be used to evaluate both the reasonableness of discipline and the reasonableness of the force usedin other words, to evaluate the merits of both prongs of the corporal-punishment standard. It appears, for example, that judges tend to reject as unlawful interventions that rest (or appear to rest) primarily on CPS concerns about the childs emotional and developmental welfare, preferring instead to focus on the physical harm caused by the injury at issue in the case.154. 58 For example, evidence of chronicity, the use of an object such as a belt or a switch, the childs fear of the parent or anxiety about the safety of the home, or an injury in a location other than the buttocks (harm to the head or neck is particularly provocative in this regard) may cause CPS to classify as abuse a bruise lasting for more than twenty-four hours, even if that same agency would normally decline to intervene based on the injury alone.59, Finally, in the evaluation of individual incidents and injuries, CPS may consider parents rights and family privacy, including parents motivation for using corporal punishment and parents ethnic or cultural background. The De Minimis Exception. WebThe most commonly forms of physical punishment against a child includes spanking, smacking, and slapping, but also includes the use of an object. Corporal Punishment and the Cultural Defense. For example, many maltreatment statutes and regulatory schemes are expressly premised on both a respect for family privacy and a focus on child well-being. Deater-Deckard Kirby, Dodge Kenneth, Sorbring Emma. These approaches vary from state to state and judge to judge. Some religiously motivated corporal punishments may fall into the former category, and SBS is (again) a good example of a practice that falls into the latter. Parental autonomy norms, in particular, are widely held beliefs about the primacy of parents and parental decisionmaking as against the state and decisions it might make in regards to the child. The legal actors responsible for determining where and how to draw the line between reasonable and unlawful corporal punishmentCPS agents and courtsare influenced by one of two paradigms, or by a more or less ad hoc combination. The third is the risk of error in both directionsfalse-positive and false-negative findings of maltreatmentand the consequences of resulting errors for children and families.7 This risk is an inevitable result of the inconsistencies that plague the system. This is the concept of the family as a village within a town, within a county, within a state, within the country; the village being primarily and in the first instance responsible for bringing up the young to become well-adjusted, productive individuals and citizens.136 Parental autonomy is also said to be good for society because children need to be raised by some adult(s), and neither the state itself nor any other individual or group of adults can replace parents as first best caretakers,137 and because societys interest in the perpetuation of heterogenic democracy is best fulfilled when an ideologically diverse group of individuals raises the children.138 Parental autonomy is viewed as being good for parents because it honors the natural bonds of affection that tie them to their children and also because it compensates them for taking on the responsibilities of parenting.139 Finally, parental autonomy is viewed as being good for children because, among the adults and institutions that might be imagined as caregivers, parents, guided by their natural bonds of affection, are most likely to take the best care of their own children and to do the best job raising them to be successful adults.140 That aspect of parental autonomy that sees the family as sovereign territory is specifically viewed as being good for children because, when parent and child are bonded, interference by outsiders to the relationship harms their emotional and developmental well-being.141, The theories that support parental autonomy have changed significantly over time. In the end, the decision whether a parents behavior constitutes physical abuse may be best construed as a judgment by a scientifically informed expert. Second, a young child or a child with a mental or emotional disability may lack the capacity to understand the purpose of the discipline or appreciate its deterrent effect.102 A spanking that has no disciplinary value because the child lacks the capacity to understand its purpose is more likely to be unreasonable or excessive. In evaluating the reasonableness of corporal punishment, many decisionmakers prefer to focus exclusively on the immediate physical impacts of corporal punishment and to ignore or minimize emotional and developmental ones. Deater-Deckard Kirby, Dodge Kenneth A. Externalizing Behavior Problems and Discipline Revisited: Nonlinear Effects and Variation by Culture, Context, and Gender. Spare the Kids: Because Disciplining Children Doesn't Have to Hurt. On the other hand, jurisdictions that are unaccustomed to nonconforming immigrants or are unwilling to work to understand their different practices have not engaged such efforts. The parents behavior per se is less significant than the meaning of the behavior as interpreted by the child.178 This meaning is determined by the family context, including chronicity of the act, the contingency of the act on the childs misbehavior, mitigating factors such as temporary stress and the childs instigation of the act, and exacerbating factors such as parents taunting and psychological abuse. Lower rates were found in the WHO Western Pacific Region, with lifetime and past year prevalence around 25%. At least some case workers appear to be using a combination of valid evidence, intuition, or presumed knowledge about the nonphysical sequelae of physical injuries. WebPhysical punishment was captured in three groups: mild corporal punishment, harsh corporal punishment, and physical abuse, and both caregiver- and child-reported Corporal punishment itself is more common in the South than the North, among African American families than European American families, and among lower socioeconomic-status families than middle- and higher-status families.220 Also, religious cultural groups may encourage or discourage specific practices, creating the possibility that a parent will find the use of a corporal-punishment practice to be normative within a narrow religious culture even though it is unusual in the broader society. oneis appropriate because it best balances the societys respect for parental autonomy and sciences findings about when children are actually harmed by corporal punishment. 703-309 (1) (West 2009). These two paradigms together should govern the development of the operative legal definitions and process because, separately and at times in combination, they are the approaches currently used by the relevant legal actors.

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