Tuesday, July 24, 2007

Allegations and investigations

Someone purporting to be a "victim advocate" for DSS wrote to the Arlington (MA) email list with the surname and street name of a "dad" allegedly being investigated for sexual abuse of his children. The writer asserted that s/he had sent the email "OFFLIST" to someone who had asked to be "updated".

The email prompted a flurry of queries and complaints including why the name wasn't on the sex offender notifications that the police department sends out, why the original poster would disclose the information and defending the privacy of the affected family.

Though I was trying to stay away from email other than actual work today, I couldn't resist commenting.

Here is essentially what I wrote to explain the differences between the sex offender info that police departments report to child-involved organizations and the allegations that the original writer said were being "investigated" by DSS:

What was reported on this list is not on the offenders list a daycare provider gets from the APD because the list is of registered sex offenders -- which occurs after conviction of certain "sex crimes" and the posts were about an accused dad, being investigated by the Department of Social Services (DSS).

It doesn't make me question the poster's motives but whether s/he understands the confidential nature of DSS's investigations (even IF s/he only intended to inform one "OFFLIST" correspondent who "asked to be updated").

An allegation that comes to DSS's attention is a VERY FAR cry from being about a "sex offender" who has to register and who would thus be on the list that day care providers and others who provide services to children get from the local police.

Certain professionals are required by law to report and DSS is required to "investigate" whenever there is "reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth". [Mass. Gen. Laws chapter 119, section 51A; see also the Web Resources page of my website.]

I could go on with 30 years worth of anecdotes, regulations and court cases that explain, limit or expand upon what that means and how different it may be from a general public understanding.

Instead, I'll just summarize by saying that "mandated reporters" are often told to err on the side of caution and report even the slightest suspicion; to let the investigation process sort it out. But then DSS is cut a whole lot of slack to not actually conduct any real investigation (and just conclude that if a "mandated reporter" decided to make a report, then it should be "supported") because the law requires them to complete their investigations in 10 days (24 hours if an emergency). (See also my Boston Globe LTE of June 1, 2007 or my blog post about it.)

A large part of my practice is devoted to representing families when DSS seeks to intervene. Feel free to post comments here about your experiences. If you are seeking legal advice, however, remember that this blog is not private and you should contact my office to discuss scheduling a consultation.

Friday, July 13, 2007

Legal Ramifications of Teen Sexuality

A man in Florida owes more than $10,000 in back child support payments in a paternity case involving a 15-year-old girl who he allegedly fathered when he was 16; but who, according to DNA results and the girl's mother, is not his daughter.

He still has to pay.

The state of Florida is continuing to push him to pay $305 a month to support the girl, as well as the more than $10,000 already owed. He spent a night in jail because of his delinquent payments. Why? Because he missed the deadline to legally contest paternity. The paperwork didn't reach him until after the deadline had passed.

To read the rest of the article, click here.

If you want to receive timely notice when someone files against you for support be sure to stay in touch with all your old girlfriends (unless of course doing so would violate a request or court order), submit change of address forms to the post office when you move and consider filing with the putative father registry whenever there is a chance that you may have conceived a child.

Also consider the case of Genarlow Wilson, a Georgia teen who has spent nearly 29 months in prison on a ten year sentence which a judge and numerous commentators have called unjust. Wilson had consensual oral sex with a 15 year old girl at a party when he was 17.

The Georgia statutory rape law was amended to exempt "Romeo and Juliette" cases but only for intercourse, leaving the prosecutor free to press the felony charge against Wilson. To follow his case, click here.

Massachusetts, however, has no such exemption. See Mass. General Laws chapter 265, section 23.

You can be prosecuted for consensual sex with your under-aged partner. You can be forced to pay support for children you did not consent to conceive and even children who are not yours.

Bottom line: Sexuality is complicated and has significant legal ramifications.

Wednesday, July 4, 2007

Time to declare our independence from the new King George?

The Declaration of Independence: A Transcription
(from http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html)

[MR note: These are the original words. It's scary how much of it has current significance.]

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the
public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offencesFor abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.