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Emotional Maltreatment Statutes Summary

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When Words Hurt:

Investigating and Proving a Case of Psychological Maltreatment

Victor I. Vieth

Psychological maltreatment stands alone as a form of maltreatment and is "embedded in all other forms of maltreatment" such as physical or sexual abuse. As a result, psychological maltreatment is easily the most prevalent form of maltreatment in the United States. It is also a form of abuse that is devastating both to its victims and to society. Consider this somber analysis:

Recent research has implicated emotional abuse as a strong, possibly stronger, predictor than physical abuse of internalizing disorders, externalizing disorders, social impairment, low self-esteem, suicidal behavior, psychiatric diagnoses, psychiatric hospitalizations, and long-term psychological functioning.

Although nearly every state defines child abuse to include some form of emotional or mental injury, wide variations in these legal definitions have resulted in a "300-fold variation in the rate of emotional abuse across state boundaries." To even out the playing field, and accord psychologically maltreated children the same protection afforded other victims of abuse, there is a need to better define this form of maltreatment and to investigate and litigate these cases more effectively.

Defining psychological maltreatment

In 1978, researchers Lourie and Stefano proposed the following clinical definition of mental injury: "an injury to the intellectual or psychological capacity of a child, as evidenced by an observable and substantial impairment in his or her ability to function within his or her normal range of performance and behavior with due regard to his or her culture."

The American Professional Society on the Abuse of Children (APSAC) says that "Psychological maltreatment is a repeated pattern or extreme incident(s) of caregiver behavior that convey the message that a child is worthless, flawed, unloved, unwanted, endangered, or only valuable in meeting someone else's needs. Virtually every caregiver, at some point, sends such unfortunate messages. There are few perfect caregivers. Most psychological maltreatment occurs when such negative messages pass from isolated incidents to a consistent caregiving style."

Another commentator offers this practical definition:

Emotional abuse is, simply, all the rest, the excess within child abuse after physical abuse and sexual abuse are specifically defined. Any imaginative form of cruelty visited on a child that is not a beating or a sexual contact is psychological abuse.

As state legislatures have incorporated these academic definitions of psychological maltreatment into civil and criminal codes, they have largely created laws with an "emphasis not on the actions of the parent—verbal castigation, close confinement, whatever—but instead on the results, the measurable ('observable') and severe ('substantial') effects on the child’s development ('impairment in the child’s ability to function')." In Minnesota, for example, emotional maltreatment "means the consistent, deliberate infliction of mental harm on a child by a person responsible for the child’s care, that has an observable, sustained, and adverse effect on the child’s physical, mental, or emotional development."

Types of psychological maltreatment

A parent or caretaker may inflict mental or psychological injuries in any number of ways. Researchers Garbarino, Guttman, and Seeley identify five types of emotional maltreatment.

First, a parent emotionally abuses a child when the child is rejected. Rejection takes place when the parent "refuses to acknowledge the child’s worth and the legitimacy of the child’s needs." Winston Churchill was arguably a victim of this form of maltreatment. For years, his father failed to acknowledge any accomplishment of his son, did not attend significant events in his life, and declined to speak with him unless it was to express the view that Winston was destined for failure.

Second, a child is emotionally maltreated when isolated. Isolation occurs when the child is cut off from friendships. Parents who remove a child from school, perhaps under the guise of "home-schooling", without any accommodation for the child's need to have friendships and otherwise interact with the outside world may be walking close to this line. Isolation may involve the actual confinement of a child to a certain area. For example, the mother of Chief Justice Harlan Fiske Stone tethered her son with a rope as punishment.

Third, a child is emotionally maltreated when terrorized. Terrorism occurs when "the adult verbally assaults the child, creates a climate of fear, bullies and frightens the child, and makes the child believe that the world is capricious and hostile." In one case, for example, a father threatened to cut his children up with a chain saw. Torturing a child's pet or destroying a child's personal possessions may also be a form of terrorism.

Fourth, a child is emotionally maltreated when ignored. This occurs when "the adult deprives the child of essential stimulation and responsiveness, stifling emotional growth and intellectual development." The example of Winston Churchill’s childhood arguably fits here as well.

Finally, a child is emotionally maltreated when the child is corrupted. This occurs when the parent "stimulates the child to engage in destructive antisocial behavior, reinforces that deviance, and makes the child unfit for normal social experience." In one case, for example, parents encouraged their teenage son to watch them have sexual relations or even to bring over his girlfriend and have an orgy.

Case law

Although most states allow juvenile court intervention in cases of psychological maltreatment, there is very little case law on this topic. Cases that do exist involve punishing a child by placing him in a dog cage, extreme verbal abuse, and murdering a child’s mother while a child was in the house.

Suggestions for investigators of psychological maltreatment

First, conduct mandated reporting classes. Numerous studies document that most front line professionals will not report suspected cases of abuse no matter how clear the evidence. This problem is exacerbated when it comes to mental injuries: Some social service agencies actually discourage reports of psychological maltreatment because they are so difficult to prove.

Children should not be ignored simply because protecting them is difficult. Instead, we should teach mandated reporters how to recognize and report psychological abuse, and to note changes in a child’s behavior after incidents of maltreatment occur.

Second, conduct a thorough analysis of the crime scene. Seize all evidence documenting an act of psychological maltreatment. In one case, for example, a parent put a pig snout on a boy’s face and fastened a sign around his neck that labeled the boy as an "ugly, thieving pig." It may seem elementary but in such a case it is imperative for investigators to seize the pig snout and the sign.

If the maltreatment involves inaction, such as ignoring or rejecting a child, search the house for evidence documenting this pattern. For example, does the family album have pictures of all the children except the one being ignored or isolated? Is this the only child without toys or who is otherwise made to feel different from his or her siblings?

Third, conduct a thorough interview of parents suspected of psychologically maltreating a child. The investigator might explore the parent's feelings by asking questions such as: What are three words that describe your child? Can you give specific examples that back these statements up? What is it like to live with ___? Is there anything about ___ that makes him/her hard to like? Questions such as these were developed by and are used by professionals conducting forensic assessments of families impacted by abuse.

To assess a parent's involvement in their son or daughter's life, helpful questions might include: Who is your child's best friend? What is the name of her teacher? Have you ever attended a school event of your daughter’s? Why not? What is your child’s favorite movie/book/television program?

Fourth, refer the child to a psychologist familiar with accepted guidelines for evaluating whether a child is a victim of psychological abuse. The APSAC guidelines offer specific criteria for therapists in evaluating a child for psychological maltreatment including observing the child-caregiver interactions, evaluation of child characteristics and evaluation of the ability of the family to reform or improve.

Suggestions for prosecutors/child protection attorneys

First, carefully weigh charging options. Because psychological maltreatment requires prosecutors and child protection attorneys to prove not only the act in question but also the impact of the act on the child, consider whether the conduct could be charged as something easier to prove such as an assault or false imprisonment. A father's threat to cut his children with a chainsaw would also be considered an assault in many jurisdictions. By charging this act as an assault, as opposed to psychological abuse, the prosecutor will avoid having to prove the conduct negatively impacted on the child.

Second, educate the court about the seriousness of emotional abuse. Judges may be more familiar with cases of physical and sexual abuse and deem them more serious. Indeed, recent research suggests most child protection judges have little training in this area. Judges can be educated through pre-trial motions in which attorneys attach relevant studies in support of their position and through expert testimony.

Third, consider the judge or jury’s knowledge base in drafting your witness order. If the judge or jury knows little about psychological abuse, the child protection attorney or prosecutor may want to begin with an expert witness who can explain what this form of maltreatment entails, why it is harmful to children, and how professionals go about assessing such a case. With this context, the judge or jury may be more receptive to witnesses describing the incidents themselves. Finally, it may be wise to close with another expert witness who has assessed the parent and his/her ability to meet a child's emotional needs. This sort of testimony will be critical in a child protection case where "reasonable efforts" must be made to re-unite the family.

Fourth, create sound case law. Because there are so few reported cases in this area, prosecutors and child protection attorneys must select good fact patterns and put as much effort into creating a record on appeal as they do in proving the case to a judge or jury. An ill-prepared attorney, particularly one who puts on evidence not supported by psychological or other peer-reviewed literature, will create bad case law that prosecutors and child protection attorneys everywhere will have to deal with. Civil child protection attorneys will have an added incentive to create a good record because, unlike prosecutors, they may be able to appeal a ruling against their client.

Conclusion

Contrary to the "sticks and stones" nursery rhymes we teach our children, the fact is that words can hurt immensely. If we teach ourselves to recognize and respond to cases of psychological maltreatment, the children who are victimized and the society we inhabit will benefit greatly.

 

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