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Tension between children’s and sexual abuse offender’s rights

Tension between children’s and sexual abuse offender’s rights Child protective services is mandated to protect the rights of children, whereas the criminal justice system is mandated to protect the rights of the accused. Within the current system, the rights of the accused appear to take precedence. While there are various reasons to make this statement, the most compelling is that almost all offenders are allowed to stay within the child’s environment, whereas the majority of children are removed from their homes (Faller, 1991b; Hunter et al., 1990). An analysis presented in Chapter 9, “Offenders,” found that offenders are convicted in less than 2% of all abuse suspected by authorities. Of substantiated abuse, only approximately 7% of offenders spend more than one year in jail. Given that an estimated three-fourths or more of all abuse that occurs is never identified and substantiated (Tables 5-1 and 5-2), it is probably safe to say that less than 1% percent of victims of abuse are adequately protected by the system. Further, considering that most offenders abuse multiple victims (Abel et al., 1987, 1988a; Ballard et al., 1990), other children are also unprotected by this failure of the system. Because 93% or more of all offenders are allowed to remain within the child’s environment or to return within the year, child protective services has the enormous responsibility of providing adequate protection to victims whose offenders remain free. How this problem has been resolved may be one of the most critical factors related to certain systemic biases, including the high number of mothers charged as offenders (Table 12-1), the high number of mothers assumed to be collusive or unsupportive (Ryan et al., 1991), and the high number of children removed from their homes (Faller, 1991b; Hunter et al., 1990). Yet, to fully understand this relationship requires an understanding of how some of the myth-bound tenets of early family systems theory influenced the thinking of professionals. Probably in no area has the historical conceptualization of child sexual abuse done so much harm as in the manner in which nonoffending mothers are conceptualized and treated. As discussed in an earlier section of this chapter, most professionals continue to assume that mothers are partially culpable for the abuse (Kelley, 1990; Reidy & Hochstadt, 1993), probably knew about the ongoing abuse (Breckenridge & Baldry, 1997), and have emotional and personality deficits (Freet et al., 1996). These findings contradict the empirical literature, which indicates that most mothers do not know about the ongoing abuse (Faller, 1990; Margolin, 1992; Myer, 1985), are partially or fully supportive when they do find out (Bolen, 2000b), and have personality characteristics that fall within the normal range (Muram, Rosenthal, & Beck, 1994; Peterson, Basta, & Dykstra, 1993). Yet, the consequences of these biased beliefs have been devastating for nonoffending mothers. In one of the most graphic examples, one study found that child protective services workers considered that 81% of mothers of children whose cases were substantiated knew about the ongoing abuse, and most of these mothers were considered unsupportive (Ryan et al., 1991). This factor—the perception that the mother knew about the ongoing abuse—was one of two important factors predicting removal of the child. Thus, the mere perception that mothers know about the ongoing abuse substantially increased their risk of losing their child. As such, the falsely held belief that mothers collude in ongoing abuse is probably directly related to increased removals of children. If this is the case, then this false belief held by child protective services workers may explain why one set of studies indicates that most mothers are somewhat or fully supportive after abuse disclosure (Bolen, 2000b), whereas another set of studies indicates that most mothers experience the removal of their child (Faller, 1991b; Hunter et al., 1990). Another issue, however, looms large. Although child protective services is mandated to protect children, the system fails to remove all but a few offenders from the child’s environment, Thus, because law enforcement fails in its responsibility, child protective services is burdened with the responsibility of protecting children whose offenders remain free. Further, in an era of high-profile media exposure and general negativity directed towards child protective services, the stakes are high. How can child protective services guarantee the protection of the child? The only way to do so is to remove the victim. A study by Cross et al. (1999) provides a stark example of this dilemma. More than 40% of children whose cases of sexual abuse were referred for prosecution and then denied were removed from their homes. Why were these children removed at this point? While the design of the study precludes definitive answers, it may be that this was the only way that child protective services felt that they could adequately protect the child.1 It is suggested that the current implementation of child sexual abuse statutes provides an extraordinary quandary to child protective services, a quandary that is best resolved by considering mothers collusive and unprotective. If child protective services is charged with protecting the child when the offender remains in the child’s environment, who is to say that the child cannot be sexually abused again by the same offender? And surely child protective services is acutely aware of its failures, as they are so often sensationalized by the media. With such intense pressure on child protective services to protect the victims, it is not unreasonable to suggest that the pressure to remove children is also intense, even though this pressure is probably implicit and even though foster care homes may be scarce. Yet, court cases have consistently upheld the rights of family unity except in extreme circumstances (Bulkley et al., 1996). Because children can only be removed from nonoffending guardians who are not adequately protective, the historical conceptualization of nonoffending mothers as collusive has provided a solution. Child protective services can resolve their dilemma by maintaining a false belief that most mothers are collusive. By charging mothers as co-offenders or with failure to protect their children, their extraordinary dilemma is solved. Believing that the best interests of the children are being served, workers can then remove them from their homes. This analysis is not in any way to suggest that child protective services workers or supervisors purposefully or knowingly falsely accuse mothers of colluding in ongoing abuse or of not being adequately supportive. It is instead to suggest that, over time, biases have become institutionalized within child protective services because these biases offer one of the few methods for successfully accomplishing their mandates. Thus, new child protective services workers are inculcated into a system that believes that most mothers are collusive and unsupportive. Having a preconception about what to expect of these mothers and needing some leverage to adequately protect the child, child protective services may have institutionalized a method of charging mothers as unfit parents or even as co-offenders. Compelling evidence for this supposition is found in the 1998 NCANDS national incidence study in which more than half of mothers in cases of parental abuse were identified as offenders (U.S. Department of Health and Human Services, 2000c). Thus, a tragic set of circumstances may have predestined the response to mothers. Our fundamental rights as citizens of the United States have resulted in the paradoxical consequence that almost no offenders are removed from the victims’environments. Yet realizing its responsibility, the federal government has charged states, and specifically child protective services, with the responsibility of protecting its children. Because the federal government has laws that protect the rights of the alleged offender and the sanctity of the family, these laws place child protective services in the unique position of having to destroy family sanctity to maintain its mandate to protect victims. These systemic challenges have thus prioritized the rights of the offender over those of the victim and family. The eventual scapegoat has become the nonoffending mother, the one person whose rights are not protected. By charging her as unfit, unsupportive, or even a co-offender, as the historical conceptualization of child sexual abuse suggests, child protective services can then meet its mandated function of protecting children. In summary, the tension between the rights of the victim and offender and the influence of a myth-laden historical conceptualization of child sexual abuse have coalesced at enormous cost to the victims and their nonoffending guardians. The pejorative assumptions of nonoffending guardians have virtually guaranteed their abuse and misuse within a system designed to eye them with deep suspicion. Thus, nonoffending mothers are routinely charged as co-offenders even when they do not commit the abuse. Many other mothers are labeled unfit, and their children are removed. The system thus blames nonoffending mothers with the failure for the protection of these children. The reality, however, is that the profound failure to protect identified victims lies instead with the system. And this failure is beyond imagination, for only 5% to 26% of all abuse within the general population is identified (Table 5-2). Of the abuse that is identified, only approximately 7% of offenders are incarcerated for more than a year. On the other hand, the large majority of individuals who could provide the greatest protection to the child—nonoffending mothers and other nonoffending guardians—are at greatest risk either to be ignored by the system, falsely charged as co-offenders, or presumed to be unsupportive. As a result, the majority of identified children live their nightmare—that disclosure of the abuse will dissolve the family structure. This is an unconscionable failure by a system designed to protect abused children and to maintain family unity.

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