Sunday, December 16, 2007

Corporal punishment

Following a discussion on the Arlington email list about anti-corporal punishment legislation that Rep. Jay Kaufman filed on behalf of Arlington resident Kathleen Wolf, Rep. Kaufman posted his rationale for testifying in favor of the bill.

My reply to Rep. Kaufman's post and letter to the editor:

I believe that the Department of Social Services (DSS) provided misleading statistics to the Legislature that Rep. Kaufman cited in his testimony and Letter to the Editor concerning the corporal punishment bill (The Advocate, December 6, 2007) .

My experience as an attorney who has represented parents and children in abuse and neglect cases for almost 30 years tells me that the "19,000 cases of abuse reported to DSS in the 3rd Quarter" almost certainly included "incidental or minor physical contact" that the bill exempts and its proponents say they are not concerned about.

The mandated reporting statute (General Laws chapter 119, section 51A) is interpreted by DSS to require reporting whenever there is any suspicion of abuse or neglect.

I have had two cases already this quarter and several more in my career in which DSS decided to "support for abuse" in cases where there was merely a "spanking" or "a swat". Involvement of DSS in those families and its erroneous findings that there was abuse occurred even though "abuse" is defined in DSS's own regulations and the Supreme Judicial Court's 1999 *Cobble* case as requiring more than brief, minor pain and a rapidly fading red mark.

The referral of 1,200 cases to the District Attorney (DA) level is cited as meaning that "there was compelling evidence of abuse and prosecution was warranted." Not so. Under DSS regulations referral to the DA merely means that a DSS "investigator" has determined that there was "reasonable cause to believe" that certain serious kinds of abuse had occurred. "Reasonable cause" does not require physical evidence or even medical confirmation.

If the cited statistic was even the number of cases referred by DSS on which DAs filed criminal cases, maybe it would be an indication that someone had determined there was "probable cause" to believe a crime had been committed. That is not what a DSS referral to the DA means. "Reasonable cause" in DSS-speak does not equal "probable cause." Rarely are any of the 19,000 reported cases presented to a court or even to anyone outside of the intake unit for independent fact-finding determinations.

The constitutional burden of proof for criminal cases is "beyond a reasonable doubt." Courts have ruled that family relationships can be permanently severed upon "clear and convincing evidence." To temporarily remove a child from a family into foster care while the court determines if the child is at risk of harm requires only "a fair preponderance of the evidence." But DSS referring a case to the DA is an even lower standard -- "reasonable cause to believe" that abuse has occurred. The fact that only "1,200 of [the 19,000 reported cases] "advanced to the DA's level" means that 17,800 were either "unsupported" or were found not to have any evidence of serious abuse.

Yes, abuse is a serious problem and should be uncovered, prosecuted and prevented. Children should be protected from it. But, if this bill passes DSS, an agency that already involves itself with 80,000 cases per year (many of which are not significant enough to refer for law enforcement investigation), will have an excuse to continue its micromanagement of parents who do not conform to its belief that all physical contact in discipline is harmful and warrants intervention.

I am certainly in favor of the legislative deliberations that Rep. Kaufman's testimony suggests but I think focusing on corporal punishment and giving DSS additional incentive to investigate families that use it reasonably, runs the risk of driving parents underground with their questions about how best to raise their children. If medical and other childcare professionals must report a family to DSS every time there is a suspicion of the use of corporal punishment, insecure parents may refrain from asking for advice.

So, yes, have the debate; reforms are needed. The Legislature should consider requiring a judicial determination of probable cause or real, documentable exigent circumstances (as I believe to be required by the Fourth Amendment to the US Constitution and Article XII of the Massachusetts Declaration of Rights) before DSS is allowed to pierce a family's privacy or take their children involuntarily into foster care.

I respectfully urge the legislature not to pass this bill. Stop abuse, prevent abuse, prosecute abuse - but keep the government out of the private affairs of families.

was published in The Arlington Advocate as a Guest Column "More on corporal punishment" and was promoted by Atty. Deborah Sirotkin Butler on the Blue Mass Group blog "Legislation on corporal punishment - protection for children or invasion of privacy ?".

The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.