Overview of Child Protection Laws

Government seeks to protect minors from all sorts of dangers and in many cases imposes duties on parents to protect children as well. For instance, the Second Amendment right to bear arms does not apply to minors, yet a parent who allows a child access to their constitutionally protected firearm may be subject to criminal charges if the minor gains access to it and injures themselves or another. Similarly, states also seek to protect minors from various perceived societal evils by prohibiting the underage sale and consumption of liquor by minors, underage sale and use of tobacco, and access to body piercing and tattoo parlors. Also, states regulate the hours of employment for minors and even their ability to contract. And in the most obvious sense, both the federal government and the states provide strict criminal penalties for kidnapping. Among the wide array of laws aimed at securing the wellbeing of children, the three hot topics today are likely child abuse/neglect laws, internet content/censorship laws, and anti-bullying statutes.

1. Child Abuse and Neglect

The most basic of child protection laws are those preventing child abuse and neglect. At the federal level child abuse and neglect are defined by the Child Abuse Prevention and Treatment Act (CAPTA) as: "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 an act or failure to act which presents an imminent risk of serious harm." 42 U.S.C. § 5101 (1982). A typical state statute will find abuse if a parent intentionally or with reckless disregard of the consequences causes physical or mental injury to a minor. Thirty-eight states include acts which place a child or create a substantial risk of harm to the child's welfare. Thirty-two states explicitly provide definitions for mental or emotional abuse in their statute while almost all recognize emotional or mental abuse within the ambit of their statute. Child neglect is typically defined by states as the failure of a parent to provide necessaries such as food, clothing, shelter, and appropriate medical care. Twenty-four states also include a failure to educate in their definition of neglect and seven states specifically define medical neglect as the failure to provide needed health care treatment.[1]

The problem, though, is that often child abuse can be difficult to separate from parental discipline. The Supreme Court has recognized the right of parents to discipline their children stating that there is a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Parents have fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 758 (1982) quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972). But also, the Court has stated that those rights are not "beyond limitation" either. Prince, 321 U.S. at 166. This forces almost every court into an analysis that differs from criminal intent and instead courts focus on whether the discipline imposed was clearly excessive or beyond the bounds of decency. The parens patriae power justifies the deviation from criminal intent. The state's goal of protecting children has also allowed for the finding of child abuse when one spouse failed to prevent abuse or when the abuse has been purely verbal/mental. Newby v. United States, 797 A.2d 1233 (D.C. App. 2002); In the Matter of Shane T., 453 N.Y.S.2d 590 (N.Y. Fam. Ct. 1982).

Child neglect is also often difficult to define. It is difficult to fashion an appropriate standard which equitably accounts differences in the economic means of families. Indeed, twelve states and the District of Columbia exempt financial inability to provide from their definitions of neglect.[2] In In re Juvenile Appeal, 455 A.2d 1313, 1315 (Conn. 1983), a single mother lost custody of her five remaining children when her nine month old unexplainably passed away at the mother's home. The state retained custody pursuant to a temporary custody statute even after the mother had been cleared of any wrong doing. Id. at 1317. The basis for this came primarily from social worker testimony that the home was dirty, contained roaches, and on occasion the two older children attended school without having eaten breakfast. Id. The court concluded that even in a temporary custody hearing the burden of proof lay with the state. Id. at 1323. The trial could not conclude the children were presumptively neglected and force the mother to prove otherwise. Id. When the state is intervening into family custody affairs the parents and the state each have one compelling interest, the interest in family integrity and protecting children, respectively; while the children have two interests: an interest in safety and an interest in having a stable home environment. Id. at 1319.

The court, however, in In re Juvenile Appeal adopted a different burden of proof than that previously mandated by the Supreme Court. In Santosky v. Kramer, the Court concluded that to terminate parental rights the state had to prove the requisite statutory elements by clear and convincing elements. 455 U.S. 745 (1982). The Connecticut Supreme Court distinguished Santosky based on the issue at hand being temporary custody as opposed to a permanent termination of parental rights. In re Juvenile Appeal, 455 A.2d at 1324. The higher standard of proof mandated by the Supreme Court reflected the permanence of the order and represented a value choice of the Court in non-interference with family matters. Id. In a temporary setting the primary concern was the immediate welfare of the child and as both of the child's interests are competing, welfare and a stable family life, there is no need for a higher standard of proof to reflect a preference for non-interference with the family. Id.

a. Child Molestation

Finally, states often have separate laws for dealing with sex offenses involving minors. The most commonly known of these are probably statutory rape laws. The parens patriae power of the state allows states to create a strict liability offense for an adult having consensual sexual intercourse with a minor. Most of these laws are now gender neutral and many states will base the severity of the offense on the respective ages of the parties. The Supreme Court upheld gender neutral statutory rape laws in Micheal M. v. Superior Court of Sonoma County. 450 U.S. 464 (1981). These laws stem from the belief that minors are unable to truly give consent and are cognizant that sex often results from the pressures of the older party. Consult your local state statute for specific ages.

Further, minors in all states are protected against sexual assault and abuse, or in other words child molestation. Some states refer in general terms to sexual abuse and other state statutes detail specific offensive acts. Virtually all states include sexual exploitation through child pornography in these definitions. Recent developments in child sex abuse cases often hinge not on the acts themselves, but rather on evidentiary issues, reporting duties of witnesses, and reporting duties of offenders.

In 1995 Federal Rules of Evidence 413, 414, and 415 were adopted to address evidence in sex crimes cases. Specifically, 414(a) states: "In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter which is relevant." Fed R. Evid. 414. Rule 415 allows such evidence to be used in civil cases against the offender. Fed R. Evid. 415. These rules which may have been adopted by your particular state or included perhaps in your state's exceptions to Rule 404 make subsequent convictions easier to obtain and aid in protecting children.

Also, with the aim of protecting children in these types of cases some states have adopted juvenile shielding statutes. The purpose of a shielding statute is to protect the child when testifying against their abuser. The Supreme Court upheld this type of statute in Maryland v. Craig. 497 U.S. 836 (1990). There the Court found allowing a child to testify out of the courtroom via a one-way closed circuit television, a mechanism adopted by the majority of states, did not violate the Confrontation Clause. This helps to at least minimize the trauma on youth who are forced to re-tell the story of their abuse.

In furtherance of discovering child abusers and thereby protecting children virtually all states require doctors, teachers, day care providers, and law enforcement personnel to report evidence of abusive activity. Moreover, some states also require lawyers, clergy, therapists, counselors, and film processors to report evidence as well. The extent of these reporting duties varies significantly by state so check your local statutes.

The perhaps most controversial of mechanisms designed to prevent molestation of children are mandatory reporting statutes for offenders. One of the first modern sex offender registry/notification laws was passed in New Jersey in 1994 and is popularly known as Megan's Law. In 1996 the federal equivalent was signed into law by President Clinton. 42 U.S.C.A. § 14071(e)(2) (West Supp. 1998). The Adam Walsh Child Protection and Safety Act (AWA) passed 10 years later strengthened the 1996 Act by requiring all offenders to utilize online community notification and by providing stiffer penalties for a failure to register. The AWA encourages state participation in the registry scheme by conditioning receipt of federal funds on compliance. The goals of the registries in general are to inform individuals about offenders in their area, increase police ability to solve sex crimes, deter offenders, and limit their access to potential victims. In 2012, the Court in Reynolds v. United States upheld SORNA, the registration portion of the AWA, but concluded it could not be applied retroactively to those who committed offenses prior to the AWA's enactment. 132 S.Ct. 975 (2012); 18 U.S.C. § 16901 et. seq.

2. Censorship and Online Child Protections

The proliferation of the internet in the 1990's led to a dramatic increase in youth access to pornography and other sources of explicit content. Congress quickly responded with the Communications Decency Act of 1996 (CDA). 47 U.S.C. § 223 (2000). The Act which prohibited transmitting obscene messages or displaying patently offensive material to those under age 18 was quickly struck down by the Court in ACLU v. Reno I. 521 U.S. 844, 885 (1997). Congress then responded with the Child Online Protection Act of 1998 (COPA). 47 U.S.C. § 231 (2000). Much like the CDA, COPA attempted to place content restrictions on the producers of internet websites. After several trips through the Third Circuit and the Supreme Court cert was finally denied after the Third Circuit concluded COPA failed to pass strict scrutiny. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008). The definitions found in COPA of "harmful to minors" and for "commercial purposes" prohibited a wide range of protected expression.

In 2000, the Children's Internet Protection Act was passed. Pub. L. No. 106-554 (2000). Differing from the CDA and COPA which were both struck down by the Court, CIPA targeted internet access at schools and libraries. The bill conditioned the receipt of federal funds and technology discounts on schools employing an internet filter which would block content deemed inappropriate for students. The precise content blocked by the filters was to be determined by the local institutions but the filters must prevent images or illustrations that (1) as a whole with respect to youth, appeals only to a prurient interest in nudity, sex, or excretion or (2) "depicts, describes, or represents in a patently offensive way with respect to what is suitable to minors, actual or simulated normal or perverted sex acts, or lewd exhibition of the genitals," and one that "taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors." 47 U.S.C. § 254(7)(G). CIPA was upheld by the Court in United States v. American Library Ass'n, Inc., 539 U.S. 194 (2003).

Content based restrictions have not been the only method employed to protect minors while on the internet. Also, in 1998, as Congress was drafting COPA it also created the Children's Online Privacy Protection Act or COPPA. Combined with a 2001 rule promulgated by the FTC, COPPA aims to protect children under the age of thirteen by requiring "verifiable parental consent" be given before a website "directed to children" can collect, use, or disseminate personal information. While parents were wary of placing personal information on the internet in fear of online fraud and misuse, children would readily and voluntarily disclose such information without parental approval. Further, children were also susceptible to passive information gain via cookies, which would track their internet movements and later be sold to third parties for advertisements. COPPA was designed to enhance parental control over information dissemination over the internet through notice and an outright ban on selling the personal information of those under thirteen to third parties.

The FTC which is tasked with enforcement of COPPA has put together several noteworthy enforcement actions. In 2003, the FTC leveled fines against Mrs. Fields Cookies and Hershey's for failure to obtain parental consent on their websites. In 2006 and 2008 the FTC targeted two social media outlets. The first, Xanga, only required new users to check a box that they were age thirteen or older. This was not sufficient for parental consent and an estimated 1.7 million children under age thirteen placed their personal information out on the web by creating accounts. Two years later, the FTC targeted Imbee.com, another social media website that was aimed directly at children aged between eight and fourteen. Imbee.com would not create a profile unless the parent's child emailed back a consent form, but when the parent did not reply the company retained the previously submitted information by the child. Xanga and Imbee.com faced $1 million and $150,000 fines respectively.

While encouraging, COPPA has its drawbacks. To begin, it is often difficult to determine whether a website is "directed to children." This makes enforcement, which normally requires an in depth look into a company's practices behind the webpage, even more difficult. Further, COPPA does not address teenagers, a group which forms a major portion of Facebook and other social media websites' patrons. Teens are often compelled by peer pressure to join various websites and submit all sorts of personal information from names to photographs. Even Facebook, which may allow a user to hide particular pieces of information, still employs advertisers and applications that can track your movements once you've clicked on them. Teens, much like children, often do not grasp the consequences of putting their personal information out on the web. Beware, while Facebook's policy is more transparent than most, at one point Facebook claimed the rights to all personal information uploaded to its website, only to backtrack due to public outcry. Ultimately, and despite some success, critics warn COPPA has only led to epidemics of age falsification and reduced online services being offered to children.

3. Anti-Bullying Laws

Bullying disrupts learning and leads to absenteeism, substance abuse, violence, and even suicide. The rise in high profile bullying cases and resultant tragedies like that which took place in Columbine, Colorado have prompted some action on the part of the federal government. In 2010, the Department of Education hosted its first ever "Bullying Summit" in 2010. The summit stressed the need to commit resources to stem the growing bullying problem and commit resources to school safety.

Some have attempted to use existing federal law to combat bullying. Typically, a student does not have a liberty interest in the safety or his or her person while at school so there is no applicable constitutional right necessary for a § 1983 suit to lie. Stevenson ex rel. Stevenson v. Martin County Board of Education, 93 F. Supp. 2d 644 (E.D. N.C. 1999). The Safe Schools Act at issue in Stevenson did not create a private cause of action. Id. However, In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court found Title IX created a cause of action against schools (those who received federal funds) for student on student harassment. There the school had been "deliberately indifferent to known acts of student on student sexual harassment" such that it interfered with the student's right to education guaranteed by Title IX. Id. at 648. The standard for this private cause of action was set quite high though. Actions must be "severe, pervasive, and objectionably offensive," beyond mere teasing and name calling. Id. at 650. Moreover, even if the actions are severe the victim must then prove the school's "deliberate indifference." Id. at 648. In practice lower courts have often shown deference to disciplinary decisions made by schools, and thus while a select few extreme instances of bullying based on race, gender, or disability, may be actionable in federal court, the bulk of the action for bullying lies with the states.

Consequently, by 2011, 46 states had enacted some form of anti-bullying statute in the realization that bullying is not merely a right of passage for all to endure. Bullying itself though is difficult to define, which makes even state laws prohibiting it difficult to enforce. Some view bullying as taunting, teasing, threatening, or an escalating pattern of harassment. But does it require intent to do harm? Some state statutes require intent to do harm and some simply require it be reasonably known that the act could cause harm. Cf. Colo. Rev. Stat. Ann. § 22-32-109.1 (2)(A)(X) (West Supp. 2011) with Del. Code Ann. Tit. 14, § 4112D (2007). Does it require repetition? Both Illinois and Pennsylvania allow for a single act. 24 Pa. Cons. Stat. Ann. § 13-1303.1-A(e) (West 2012); 105 Ill. Comp. Stat. Ann. 5/27-23.7 (West Supp. 2011). Can it be as simple as the spreading of a rumor or an act of social exclusion? These difficulties explain while almost all states have some form of anti-bullying statute, many do not define bullying itself. Nineteen states have enumerated provisions that list prohibited activity as of 2012.[3] Even many of these do not include sexual orientation or gender identity which is an issue commonly seized targeted by modern bullies.

The rise of high profile bullying cases may indeed stem from the rise in cyber-bullying. The ability of the tormentor to stay anonymous while reaching the victim at all times through a barrage of electronic harassment make the behavior all the more damning. It is also clear that this new form of bullying occurs at all ages. Painful examples of this are seen in the Rutgers University case where secret videotaping and streaming led one college student to commit suicide or in the many cases where a parent has used social media to harass a classmate of their son or daughter.

Several states have specific anti-cyber bullying statutes, but they too have their limitations. For instance, as of 2011 all of them applied only to those under 18 and thus would have no effect in the Rutgers situation. This is exasperated by the fact that most cyber-bullying occurs outside of the realm in which schools can discipline students. Even statutes like California's that are purported to encompass cyber-bullying provide limited remedies. There the statute only apples to fourth through twelfth graders and if the principal or superintendent finds the student "intentionally engaged in harassment, threats, or intimidation…that is sufficiently severe or pervasive to have the actual or reasonably anticipated effect of materially disrupting classwork…" then they may suspend or expel the student. Cal. Educ. Code § 48900.4 (West 2010). While still not creating any private cause of action for tort liability the statute at least provides some disciplinary authority to school officials for cyber bullying conduct that is often beyond the reach of school officials. See also Ark. Code Ann § 6-18-514(a)(1)(Lexis 2010).

These statutes are rapidly evolving as they try to balance free speech on the internet with the rising epidemic of cyber-bullying. It is then important to check your local statutes for the type of conduct proscribed, the locations where that conduct is proscribed, the ages for which that conduct is proscribed, the extent to which the school district may possess sovereign immunity, and to investigate any possible remedies afforded for violations. Most statutes do not limit liability for other types of torts that may be applicable such as harassment or intentional infliction of emotional distress but liability is very difficult to attach to the school district.

[1] Definitions of Child Abuse and Neglect, Child Welfare Information Gateway, Childwelfare.Gov, (Feb. 2011), available at www.childwelfare.gov/systemwide/law_policies/statutes/define.cfm

[2] Arkansas, Florida, Kansas, Louisiana, Massachusetts, New Hampshire, North Dakota, Pennsylvania, Texas, Washington, West Virginia, and Wisconsin.

[3] Alabama, Arkansas, California, Colorado, Florida, Hawaii, Illinois, Iowa, Maryland, New Hampshire, New Jersey, North Carolina, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

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