Review: Sexual Assault Report
Our awareness of the prevalence of child sexual abuse has increased so that we now know that it affects roughly one in 3-5 girls, one in 6-8 boys. Similarly, the literature on the consequences and treatment of child sexual abuse has burgeoned in the last decade. Yet the family courts are doing surprisingly little to protect child victims from sexual abuse, particularly in cases of incest. How can this failure have received relatively little sociological, medical or legal analysis? Amy Neustein, Ph.D. and Michael Lesher, J.D. have co-authored a book that lays out in an impassioned yet scholarly manner the numerous systemic failures and, at times, sheer corruption and malfeasance that routinely place children in the hands of their (alleged) abusers -- despite competent evidence of child sexual abuse.
The book's description of the family courts' tragic inability to recognize incest and protect children reminds me of the doctors between 1890 and 1940 who blamed mothers as the source of their children's gonorrheal infections instead of the unfaithful fathers who infected their children through incestuous sexual contact.
Traditionally, a “veil of secrecy, of privacy” was drawn when matters of domestic violence or child abuse were raised. Women and children were expected to keep quiet. Being “good” meant not betraying your family, so both women and children suffered violence and abuse in silence. In our culture of heightened awareness, the effects of being left to the mercies of one's (alleged) abuser may be worse now than in the past. Children are told today that they do not deserve to be hurt, that no one is allowed to touch them sexually, and that they should tell if anyone hurts them. However, once abused, they soon learn even their own mothers can't help them. In the cases I see on a daily basis, the consequences of the double betrayal -- first by the abusive parent and then by the system -- are deep, pervasive and traumatic.
I should note that my organization, Justice For Children, advocates for the children in these situations and has worked on cases brought to our attention by protective fathers, grandfathers, brothers and uncles who are struggling to protect a child. However, in our experience the majority of these system failure cases are brought by mothers. This is not surprising when we consider that one in seven girls is abused by a father, step father, or mother's boyfriend. However, in my caseload I also have a surprisingly high number of male children who have disclosed sexual abuse by their fathers or step-fathers.
The authors follow in the footsteps of Phyllis Chesler's Mothers on Trial: The Battle For Children and Custody (1985), Lee Grant's documentary “Women on Trial” (1992), Louise Armstrong's Rocking the Cradle of Sexual Politics: What Happened When Women Said Incest (1994), Karen Winner's Divorced From Justice (1996), John E.B. Myer's A Mother's Nightmare -- Incest (1997) and Garland Waller's film documentary “Small Justice: Little Justice in America's Family Courts” (2002). The Massachusetts, California NOW and Arizona Battered Women's Testimony Projects have also helped lay the foundation for From Madness to Mutiny as have a number of outstanding papers and legal treatises by Joan Pennington, Richard Ducote, Cheri Woods, Carol Bruch and others. And although the Boston Phoenix was sued for libel by a father (he won and the Phoenix will appeal) mentioned in Kristen Lombardi's excellent article “Custodians of Abuse” (2002), it nevertheless remains the best in-depth investigation of the crisis in our family courts by a newspaper.
Neustein and Lesher use a form of sociological inquiry called “ethnomethodology” to trace what happens from the moment a child abuse report is made and throughout the course of a case as it travels through the family court system. After reviewing over a thousand cases, they describe in detail “the new legal landscape” created by developments intended to improve the family courts but which have had the opposite effect: for example, the appointment of auxiliary personnel. Judges often resort to appointing an attorney who is supposed to represent the child's best interests or, in some cases, the child him/herself (here called the “law guardian”). Judges may appoint a forensic psychologist to perform a custody or psychological evaluation of the whole family. At some point in the case, child protective services will be involved as will law enforcement personnel. Visitation supervisors may also be brought into the mix. These professionals may be testifying before the same judge on other cases throughout the year, so judges tend to rely on their recommendations rather than the facts of the cases before them.
The authors trace the misery wrought by pseudo-scientific theories like “Parental Alienation Syndrome” and “Malicious Mother Syndrome” created respectively by Richard Gardner, M.D. (deceased) and Ira Turkat, Ph.D. as well as the misuse of Munchausen's by Proxy, none of which are in the DSMIV, the “bible” of mental health diagnosis. In case after case, judges have ignored or minimized solid evidence of abuse in favor of these unsupported theories. It is not unusual that single allegation of “coaching” or “parental alienation” against a mother is enough to trigger a change in custody to the alleged abuser.
Judges and the auxiliary personnel -- law guardians, social services, mental health experts -- each have their own chapter. Brief quotes from these chapters will give the thrust of Neustein and Lesher's trenchant observations:
Judges: “Generally, an abuse case is transformed, unofficially, into an inquisition into the complaining mother's character, with a judge apparently finding so many reasons to criticize the mother that he has no time to investigate whether her charges are justified.”
Law guardians: “In the cases we have studied, law guardians have committed acts including lying to the family court and to higher courts; suppressing evidence of sexual abuse; and communicating false or incomplete information to state prosecutors and child protective caseworkers who were trying to investigate claims of sexual abuse.”
Child protective services: “First, they can bring bogus petitions against the mother, charging her with “brainwashing” her child into believing she was sexually abused; then the agencies can come into court and argue so vigorously against the mother that she will lose custody to the ex-husband, even when substantial evidence exists that he sexually abused the child.”
Mental health experts: “Most of all, perhaps, mental health quackery functions as the theoretical glue that holds together all the elements of malfunction we have been examining: judicial overreaching, unregulated law guardians and social service agencies, misplaced priorities, systemic prejudices, and unchecked power.”
Neustein and Lesher offer far-reaching proposals for change. They recall a special White House Women's Office meeting in 1997 (at which I was also present) when SAR Editor Joan Zorza explained that what we really need is a “radical shift in the attitudes and perceptions of judges, law guardians, mental health experts, and others connected with the system.”
In the chapter “Rebirthing the Family Court System” Neustein and Lesher are adamant that family courts and their appointees must rethink the concept of “parens patriae” that turns the court into a “superparent” who can act to limit the parent's right to live with and make decisions on behalf of his or her child. Deprivation of this right without proper legal procedure violates the 14th Amendment “due process of law.”
The authors provide compelling information about the general validity of child sexual abuse reports, countering the myths that women make up such reports to gain an advantage or that children are easily coached into lying. They observe that both lawyers and judges are strikingly ignorant about the realities of how abused children actually disclose their experiences. They also advocate for an “elevation” in the status of family court; many judges consider this a demeaning job or at best, a stepping-stone to a better position. In addition, judges are not doing their job and deciding the case on the merits if they fall back on the “expertise” of mental health evaluators who produce pseudo-scientific or catch-all mental health labels that reflect their own bias, rather than the actual mental health status of the mother.
The chapter “Reforming the Courts” addresses the secrecy of some family courts and calls for an open court policy. Neustein and Lesher argue that gag orders, secret proceedings with secret records harm children and hide the actions of those who otherwise would be exposed to public outrage. It goes beyond the scope of this review to go into details, but they also propose changes in policy regarding “surprise removals/change of custody; punitive rulings; judges' powers of contempt and propose reviews of sitting judges as well as the possibility of a higher court review for some cases.” Neustein and Lesher emphasize training for judges, both in the arena of child abuse as well as domestic violence.
“Reforming the Auxiliaries”: In practice, Law Guardians are nearer to being a judge than an attorney and who have the power to “manage” a case from beginning to end. Are they really serving the children whose best interests they represent when they suppress evidence, never meet with the child, enjoy quasi-judicial immunity and as such, are unregulated? Among other suggestions, Neustein and Lesher propose ethical guidelines for Law Guardians as well as the enforcement of these guidelines by a subcommittee of the bar association empowered to discipline for violations. These committees would also accept complaints from any party involved in the litigation. Many additional suggestions are supplied for enhancing the work of child protective services.
In my opinion, this shift would have to be radical indeed: in its current state, this family court system works very well for those who have found a niche within it, either as a judge, attorney, law guardian or mental health expert. The participants who benefit from the dysfunction have little impetus to become the sources of change. Calls for reform and accountability may have to come outside of the system itself.
I highly recommend From Madness to Mutiny as required reading in family law courses in our law schools as well for trainings for judges, therapists, social workers, child protective services and law enforcement as well as for anyone who is writing seriously about child abuse. Most of all, I applaud Neustein and Lesher for putting a book into the hands of so many protective mothers (or other protective relatives) that will let them know that they are not alone and that they are not crazy for wanting to do everything in their power to protect their precious children.