The police often strike at night. Your children are seized and taken to a secret location. They are placed in the hands of state doctors who strip them down and give them thorough examinations, focusing attention on their genitalia. Meanwhile, you are hauled into court to face an inquisitorial hearing into your character. Your accusers enjoy complete anonymity and full legal protection. Your guilt is essentially assumed. Many standard rules of evidence are tossed out, including the hearsay prohibition. Also unavailable to you are ancient privileges such as husband-wife and patient-doctor confidentialities. Even among those who, against all odds, manage to prove their innocence and recover their children, many escape only by agreeing to state-directed psychological counseling, where therapists work to restructure one's mind and values.
This is modern American justice styled for those parents accused of child abuse, particularly sexual abuse. Over the last twenty years, legitimate concern over the complex social problem of violence within the family has been translated into a witch-hunt, with devastating consequences for the Constitution and for thousands of innocent families who have had their lives shattered by the minions of the therapeutic state.
The Jordan, Minnesota—population 2,663-case is archetypal. In late 1983, a trash collector and babysitter named James Rud was arrested for allegedly molesting two children. In custody, he cut a bargain with the prosecutor and, in a trade for a short jail term, described his participation in a child-sex ring composed of Jordan parents. With virtually no further investigation, the police arrested the newly accused and seized the children.
The latter were placed in the care of welfare authorities and grilled by a battery of psychological experts. State therapists stripped the children and performed physical exams. Doctors drove their fingers into the little girls' vaginas, asking "Is this what they did to you, and do you think it went in that far, and did it bleed?" Anatomically correct dolls were given to the children so that they could "role play."
After weeks of repeated interrogations, the children still denied that they had been molested. Some were told that if they revealed the truth about their abusing parents, they might be able to go home. They began confessing. Meanwhile, citizens who complained about police tactics found themselves also arrested and their children seized. In the end, 24 adults faced charges.
Yet as the months passed, the prosecutor could find no supporting evidence. The girls' hymens were intact. In desperation, the prosecutor tried plea bargaining. One of the accused, a police officer, was offered no jail time, relocation, a new identity, and money in exchange for testimony against the others. Yet he, like the remaining defendants, refused all offers, demanding a trial. The first couple brought before a jury was acquitted. The prosecutor delayed the other trials, now hinting that the parents were actually involved in the ritual murders of children.
In November 1984, Rud admitted in a radio interview that he had lied. There was no sex ring; he had made it up. The prosecutor, however, continued to insist that the parents were guilty: she would ensure that they never got their children back. Only the intervention of the Minnesota attorney general's office finally brought this reign-of-terror in small-town America to an end.
The Minnesota case is exceptional only because of the numbers and publicity involved. Elsewhere, it is single families that reap the wrath of the therapeutic state. In suburban Chicago, columnist Nat Henfoff reports, a gentleman he calls Charles Smith found himself convicted in 1984 of "creating pornography" by taking photos of his romping daughter, age six, in the buff following her bath. (He was turned in by a local drugstore clerk who saw the negatives.) Donald and Annette M. of Chelsea, Massachusetts, had a two-year-old child who was crying due to teething. They were reported as abusers by a disgruntled neighbor to the Massachusetts Department of Social Services and forced to enter an elaborate "service plan" requiring weekly psychotherapy sessions. DSS retained the right to seize their children if at any time it determined that they were "not responding to therapy."
During a regular physical exam, the four-year-old daughter of an Apple Valley, California, couple was found to have a form of vaginitis, which on a doctor's report led to the state's seizure of their children. Repeated medical testimony that the organism in question could be transmitted nonsexually, that it was found in 60 percent of all American females, and that the children showed no signs of abuse proved unable to shake the children free from the grip of state authorities. A Colorado couple saw their daughter, Kimberly, held by the state for seven months as the county struggled to determine whether the child's small size was due to abuse or to neglect. The authorities ignored repeated reports that the mother and the maternal grandparents were all of small stature, the mother measuring in at 4'10", the grandfather at only 4'7″.
Cases such as these run into the thousands. How did America succumb once again to the witch-hunt mentality? The answer lies in the history of "child-saving" in America, which reaches back to the origins of the nation.
When the US Constitution was written, one of the powers not delegated by the states to the federal government was control of family law and governance. In contrast to most European constitutions, our basic governing document makes no direct mention of children or the family's relationship to the state. This omission derived, in part, from the Lockean emphasis on the natural rights of individuals. More fundamentally, it reflected the interest held by local communities in the family and an unwillingness to subject this matter to uniform national laws. In most localities, the common law presumption in favor of the reasonableness of parental action prevailed. In cases of physical abuse, the criminal law took hold.
Yet new attitudes grew dominant during the early 19th century with the emergence of the "child-saving" movement. In 1825, America's first juvenile reformatory, the New York House of Refuge, opened its doors. Setting a pattern for the next 100 years, this institution blurred the distinctions among abused, neglected, poor, and delinquent children. Children who fell into one or several of these categories could be institutionalized through court order, with the dual intent of removing real or potential delinquents from "unworthy parents" and separating them once in state custody from hardened adult criminals. As penologist Enoch Wines phrased the matter in 1880, these children "are born to [crime], brought up for it. They must be saved." Following the infamous "Mary Ellen" case of 1875, Societies for the Prevention of Cruelty to Children appeared in many cities. State legislatures granted these societies—known among the targeted poor as "the Cruelty"—extraordinary police powers of investigation and arrest.
These "child-savers" were a well-funded and highly educated elite, drawn mostly from the upper-middle class and enjoying considerable economic backing from private philanthropists. Their goal was to defend the safety and mores of the social order. Predictably, the objects of their attention were the poor, the nonwhite, and the immigrant, those outside mainstream Anglo-Protestant culture. These were the parents who saw their offspring "saved."
Undergirding this crude approach to assimilation was the use of summary justice to seize and incarcerate children. If deemed by a judge to be "in the best interests" of a potentially delinquent child, the latter would be consigned to a reformatory. The child received no trial subject to the rules of evidence, enjoyed no privilege against self-incrimination, and faced an indeterminate sentence, remaining in the reformatory until released by the committing judge. Parents also found their custody rights torn away through an inquisitorial hearing into their character.
Victimized families repeatedly challenged the constitutionality of neglect laws empowering the state to seize children. With only a few exceptions, though, the laws were sustained. The key decision came in 1839, after a father secured a writ of habeas corpus to secure the release of his daughter from the Philadelphia House of Refuge. The state's supreme court decided for the institution, using the doctrine of parens patriae ("the parenthood of the state"). "May not the natural parents," asked the Pennsylvania court, "when unequal to the task of education or unworthy of it, be supplanted by the parens patriae, or common guardianship of the community?" The court also ruled that reformatories were "residential schools, not prisons." Accordingly, commitment to them need not be governed by due process.
Yet alongside parens patriae, there remained a line of legal dissent rooted in a defense of family rights and natural liberty. The most dramatic decision came in a case involving Daniel O'Connell, age 14, who was committed to the Chicago Reform School in 1870. His father sought Daniel's release, arguing that his son had committed no crime. The state supreme court so ordered. "The parent has the right to the care, custody and assistance of his child," the court reasoned. "The duty to maintain and protect it is a principle of natural law." The court also cut through the rhetoric and acknowledged that reform schools were, indeed, prisons. It concluded:
"The State, as parens patriae, has determined the imprisonment [of the boy] beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are to be thus confined for the 'good of society,' then society had better be reduced to its original elements, and free government acknowledged a failure."
Unfortunately, this line of argument found few echoes. Within a dozen years the same Illinois court labeled parens patriae "one of the most important of governmental functions."
The juvenile court movement of the 1890s has often been described as a radical break with the past and a progressive step in public policy. Recent research by Sanford J. Fox and Mason P. Thomas, Jr., has shown that it was neither of these. The informality of the new juvenile courts—no formal charges, no trial, no rules of evidence, no right to confront one's accusers, indeterminate sentencing—simply represented explicit codifications of a legal system that had straddled constitutions since the 1830s.
It is true that the juvenile courts claimed to be supportive of families. The verbal opinion grew that home life should be preserved "when possible" and therapeutic and financial aid given to intact families. However, other attitudes ran deeper. As Progressive historian Arthur Calhoun put the matter in 1917, the bonds of family life were relevant only "to the age of savagery." The state, in contrast, "belongs to the age of civilization."
The therapeutic methods of the juvenile-justice system began to threaten even the middle class. Miriam Van Waters, in her popular book Parents on Probation (1927), argued that "hardly a family in America is not engaging in the same practices, falling into the same attitudes, committing the same blunders which…bring the court families to catastrophe." Parents could no longer "shield themselves behind natural rights," she said. It was "only a question of time before the parent's psychological handling of his child" would be subjected to the scrutiny of the state. She called for each parent to throw himself into the therapeutic arms of social work, "willingly cooperate in a plan for his own welfare," and face the "super-parent, which is mankind," with a "face stained with tears," saying: "Sure, I'll make good."
Animated by these goals, the system churned along for another 40 years. By the 1960s, though, the juvenile courts were losing their moral bearings. Immoralities once seen as signs of possible criminality in children—parental consumption of alcohol, the failure to provide a Christian education—were losing their negative cast. Agreement on what constituted "neglect" also faded. A 1962 legislative committee studying New York's Family Court Act concluded that the word had so many different meanings that a common measurement of neglect was not an appropriate area for government regulation so long as "basic standards" of food, shelter, and clothing were not violated.
Morally adrift, the system became known for its arbitrariness and procedural nightmares. It proved impossible to find sufficient foster homes for juvenile delinquents, particularly those from minority groups. Moreover, juvenile reformatories of the mid-20th century had undergone changes in terminology but little else. Guards were "supervisors." Cell blocks were labeled "adjustment cottages." Isolation cells were known as "meditation rooms." Whips, paddles, blackjacks, and straps were "tools of control."
In its Gault decision of 1967, the US Supreme Court finally declared that juveniles have the same constitutional rights to due process as adults. Justice Abe Fortas wrote for the majority: "Under our Constitution the condition of being a boy does not justify a kangaroo court." He attacked the parens patriae doctrine, arguing that "its meaning is murky and its historic credentials are of dubious relevance." Fortas concluded: "Juvenile court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure."
Yet the parens patriae doctrine soon found new life in a renewed crusade against child abuse. For the first time in this century, public attention turned to the problem of protecting children from abuse from their own parents. Advances in pediatric radiology during the 1950s had generated journal articles describing bone fractures in children that were tied to the "indifference, immaturity and irresponsibility of parents." Physicians coined the phrase "battered child syndrome." By the early '60s, Life, The Saturday Evening Post, and Good Housekeeping were running articles on "Parents Who Beat Children."
Emotionally aroused, state legislators acted. Between 1963 and 1967, all 50 states approved "reporting laws" that commonly required physicians, social workers, and teachers to report suspected cases of child abuse to child-welfare or police authorities. Most laws involved the circumvention of longstanding legal protections, including immunity from civil or criminal liability for those identifying suspected abusers and a general presumption of guilt (commonly involving seizure of the children) until the parents could establish their innocence.
Wildly divergent statistics aggravated the situation. In 1968, the first year when reporting laws operated in all states, the number of reported cases of physically abused children was 6,617. Such a real number is tragic. Yet it pales beside some estimates of abuse that have since surfaced. A 1971 article in the New York Times calculated that 500,000 children in America were abused annually, whether physically, sexually, or emotionally. More recent media estimates of abused children have been as high as 6 million—or nearly 10 percent of all children in America! Jeanne Giovannoni and Rosina Becerra, authors of Defining Child Abuse, have concluded that "the definitional chaos that has surrounded the problems of child abuse and neglect has precluded…rationality."
Indeed, emotion has triumphed. Seeking to root out an apparent epidemic of child abuse, numerous states have recently abolished the statutes setting an age below which children are presumed to be incompetent witnesses. Many states have also abandoned the requirement for corroborative evidence and have changed hearsay rules to allow videotapes and out-of-court statements as evidence.
The investigative techniques used in child-abuse cases are tailor-made to create legal nightmares. A report of parental abuse immediately places the parents on a kind of probation in many states. Accusers receive full anonymity and immunity, logically making it a race between a recently divorced man and woman over who gets their abuse charges filed first.
In addition, psychology is such a vague science that any action by parents can be used by a zealous social-service investigator to build up a case against them. The father hugs his daughter? This might imply an incestuous relationship. A father refuses to hug his daughter? This might imply emotional deprivation and abuse. Once sucked into the system, innocent parents usually find that the easiest way out is simply to go along with the therapists: let them help you get your mind and values "right," and the state might allow you to keep your children and begin to restore a shattered home.
Until recently, only a few parents dared resist the power of the therapeutic state. Among them are Elizabeth and Kenneth Cooper of suburban Chicago, the parents of seven children. Their middle child suffers from severe psychological problems, having attempted suicide several times. The state has charged the Coopers with emotional neglect, and a battle for custody has raged since 1979. That year, a social worker told Mr. Cooper: "You are going to hate me when I have finished with you. We take families and tear them apart and then we put them back together the way we want them."
The Coopers chose to fight for their family's integrity. The cost has been high. Mrs. Cooper was once roughed up by the welfare authorities. Mr. Cooper suffered a coronary after one court appearance. They have lived under the threat of losing their other six children.
Court decisions on their case have been textbook examples of arbitrary justice. One judge recently told Mrs. Cooper that she was like "the mother dog [who] has seven puppies and allows six of those puppies to nurture upon her breasts for her milk, and shuns the seventh puppy and pushes that puppy away." He interpreted the fact that the Coopers were active members of the National Alliance for the Mentally Ill as evidence that they took a sick pride in their daughter's illness. The family, he ruled, must submit to therapy if they ever intend to win their daughter back.
The institutions of the new witch-hunt grow apace. The US Department of Health and Human Services and several states are funding the creation of School-Based Multi-Disciplinary Teams (SBMDTs), which are trained to enter schools and ferret out "abusing families." These cadres of social workers and psychologists are authorized to examine a family's sources of income, history, living conditions, resources, history and frequency of problems, attitudes, self-image, parenting skills, spousal relationship, impulse control, and degree of community involvement. Those failing to measure up to state standards face therapy, loss of children, or formal charges.
Meanwhile, the number of victims steadily mounts. The volume of reported cases of child sexual abuse has tripled since 1981, to 250,000. Even the child-savers admit that 80 percent of these reports are unfounded, up from 40 percent only five years before. The skyrocketing number of parents and teachers falsely accused of child abuse who consequently suffer from permanently damaged reputations has finally drawn the attention of the mainstream media.
It does not appear, however, that this latest round of child-saving will settle into some workable balance. One reason for pessimism is that child-saving has become quite a lucrative business. While social-service budgets in most states face regular strain, child-abuse offices are enjoying expansion. It's the growth sector in the social-work industry, the place where careers and reputations will be made.
More insidious financial incentives are also at work. Psychiatrists testifying for the prosecution on vague concepts such as "the child sexual abuse accommodation syndrome" (where "abused children" act as though they are not abused, thereby permitting the prosecution to recast their denials of abuse as evidence of abuse) earn $1,000 a day for their efforts. In the Jordan, Minnesota, case, therapists grilling the children for weeks on end earned $100 an hour for their efforts. It should surprise no one that the geometric growth in statistics on child abuse comes from persons who have a financial stake in discovering it. Say's Law once again proves true: supply (in this instance, of therapists) creates its own demand.
Most tragically, the current hysteria and the ideology of child-saving cover up certain raw truths about child abuse. The constant media focus on abusive parents from intact, suburban families obscures the fact that a disproportionate number of the serious physical-abuse cases are found in the often celebrated "femaleheaded familes," commonly involving the natural father of the illegitimate child or the mother's current boyfriend.
Moreover, an apparent linkage of child abuse to legalized abortion has been ignored by the child-savers. In a 1979 article for the Canadian Journal of Psychiatry, Philip Ney, M.D., showed that those Canadian provinces with the highest rates of legal abortion were also the provinces with the highest and most rapidly rising rates of child abuse. In contrast, provinces with low abortion rates had low, even declining, levels of child abuse. Ney postulated that granting women choice on abortion had led to diminished restraints on rage, a devaluation of children, an increase in guilt, heightened tension between the sexes, and ineffective bonding between the mothers and subsequent children, all of which were closely correlated in the medical literature with abusive behavior toward children.
There is some hope that the court system may eventually place restraints on the child-saving zealots. The Gault decision dealt a crippling blow to the parens patriae doctrine and offers a promising legal precedent. Parents' legal rights in child-abuse cases, although frequently swept aside, also exist to some degree in all states and deserve creative defense.
In addition, several recent state-court decisions have reinvigorated the natural-law defense of family rights. In a stunning 1982 decision, the Utah Supreme Court struck down a section of that state's Children's Rights Act which allowed for the complete termination of parental rights if a judicial authority decides that "such termination will be in the child's best interest." In his majority opinion, Justice Dallin Oaks declared: "This parental right [to rear one's children] transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct."
Shell-shocked, frightened, yet determined parents are also beginning to organize. The Family Rights Coalition, headquartered in Crystal Lake, Illinois, serves as a clearinghouse for information on "cases of unjust aggression" by government agencies against families. Victims of Child Abuse Laws (VOCAL), founded in early 1985, already has chapters in most states; eight exist in California alone.
Such organizations advocate legislative reforms that would establish more-specific legal definitions of "abuse" and "neglect"; guarantee due process, rules of evidence, and legal representation in child-removal situations; protect children from abuse by state therapists; hold nondoctors legally accountable for false reports of abuse; and ensure respect for diverse values in child-rearing.
The child-savers respond that saving the life of even one child justifies the wholesale denial of natural and constitutional liberties. Yet the hard truth is that family violence can be wholly eliminated only by eliminating families. Even in state nurseries, though, children would face the violence perpetrated by professional caretakers, as numerous recent day-care scandals have made clear,
It is time to face up to our human imperfections and construct a new balance in child-abuse proceedings. It should focus on preventing the most serious cases of physical abuse and chronic pedophilia. It should recognize the enormous dangers inherent in bonding the imprecise sciences of psychology and sociology to relatively unbridled judicial authority. And it should pay respect to the institution of the family, the place where the vast majority of American children always will be best protected.
Allan Carlson, who frequently writes on family issues, is editor of Persuasion at Work, published by the Rockford Institute.