TO: THE SUBCOMMITTEE ON EARLY CHILDHOOD, YOUTH AND FAMILIES:
FROM: Richard A. Gardner, M.D.
RE: HR3588 - Proposed Revision of the Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 93-247 [referred to as "The Mondale Act"])
It is my understanding that the Committee on Economic and Educational Opportunities will be considering either repeal or modification of CAPTA. Full repeal of CAPTA would be a terrible mistake: it would deprive truly abused children of the protection they sorely need, resulting in massive political upheaval as the mental health and legal communities, the public, and the media struggle with the fallout from this decision. Equally important, it would deprive protection of those who might be falsely accused of such abuses, already a media highlighted public concern. I recognize fully that financial considerations are an important factor in the Committee's decision. I believe that the implementation of the modifications described below--modifications I will be presenting in my forthcoming testimony before the Committee--will not only save the federal government significant money but also preserve the important functions of CAPTA:
1. The federal absolute immunity proviso must be significantly modified. Absolute immunity, like absolute power, corrupts and fosters irresponsible exploitation. In the U.S. immunity from prosecution has traditionally been available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors. Total immunity encourages frivolous, fabricated, and even malicious accusations. Qualified immunity, such as that enjoyed by police officers, is a reasonable replacement. States that maintain the absolute immunity provision should not be entitled to federal funding. This change alone would reduce significantly the flood of false referrals being generated at this time, resulting in a formidable savings of federal monies. However, simply modifying the immunity proviso is not enough. There must be potential consequences for a false accusation whether it be deliberately made, the result of negligence, the product of delusion, or alleged for any other reason. Promulgating a false abuse accusation should be considered a criminal act, ranging in severity from a misdemeanor to a felony, depending upon the decision of the court. Malice should not be the sole standard of culpability for this crime because proving malice is extremely difficult. Rather, reporters should be held to an objective, reasonable person standard, i.e., whether an objective, reasonable person, in the same situation, would consider abuse to have taken place. Each state must have in effect a state law providing for the prosecution of any person who makes a false accusation in accordance with the objective, reasonable person standard. A false accuser (whether it be an individual or a governmental agency) should be required to pay for all legal costs of an accused party who is proven innocent in a court of law. Persistent failure to prosecute false accusers should deprive the state of federal funding.
2. The mandated reporting clause must be dropped. It has resulted in the reporting of the most frivolous and absurd accusations by two-and- three-year-olds, vengeful former spouses, hysterical parents of nursery- school children, and severely disturbed people against their elderly parents. Highly skilled examiners, professionals who are extremely knowledgeable about sex abuse, examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who they often know to be be overzealous, inexperienced, and even incompetent. Yet they face criminal charges if they do not report these accusations. Mental health professionals who are licensed by the state to practice should be given the discretion to report or not, depending upon their conclusions. States that require mandated reporting should not be entitled to federal funding for child abuse programs. This change would also reduce significantly the flood of false referrals being generated at this time, again resulting in a formidable savings of federal monies.
3. The federal law should require investigators and evaluators (both in the law enforcement and mental health realms) at all levels to routinely notify and invite for voluntary interview(s) every individual accused of child abuse or neglect. (These suspects, of course, must first be informed of their legal rights.) The failure to routinely extend such invitations should deprive the agency of funding. Each and every investigator and/or evaluator licensed to conduct such evaluations should be required to interview the accuser, the alleged child victim, and extend an invitation to the accused to be interviewed as well. In some cases the accused will accept the invitation and in others he or she may not. Courts of law will only consider admissible evaluations conducted by people who have extended invitations to all three parties.
4. All investigatory and evaluative interviews should be videotaped. States that do not require videotaping of such interviews should be deprived of federal funding. Nonvideotaped evaluations should not be admitted into a court of law, nor should testimony based on nonvideotaped investigations or evaluations.
5. Interviews in which suggestive materials are used, specifically anatomically detailed dolls, body charts, and/or other materials that indicate genital and/or sexual organs should not be admissible in a court of law. States that admit such materials into courtroom testimony should be deprived of federal funding.
6. States in which individuals suspected of child abuse are deprived of constitutional due-process protections should not be provided federal funding.
7. The federal laws now provide funding for child abuse research, education, prevention, identification, prosecution, and treatment. Such educational programs must be periodically updated to include new development in all these areas. All mental health and legal professionals involved in child abuse should be required to periodically attend these course updates. Specific information should be provided in these courses regarding criteria for differentiating between true and false accusations. Such funding should also be provided for programs designed to assist those who are falsely accused, as well as children who have been victimized by being used as vehicles for a false accusation. Such programs could be incorporated into existing child-abuse and child-neglect programs.
8. CAPTA provides federal funding for the child's legal representative (the guardian ad litem) the accuser's legal representative (the prosecutor) but not for the defendant's legal representative (the public defender). As a result, overburdened public defenders' offices are not capable of providing equal representation for defendants, especially those accused of sexual abuse. Prosecutors can generally afford special units devoted to sex abuse; public defenders rarely enjoy this luxury. CAPTA has the power to correct this inequity.
9. In order to receive federal funding each state must establish an office and procedures to consider applications for postconviction judicial review from anyone convicted of a child abuse crime. When considering such applications, special attention should be given to: 1. the possibility of violation of the defendant's due-process protections, 2. new scientific developments--especially in such areas as suggestibility, memory, and medical findings, and 3. whether the accuser and/or the alleged child victim has recanted the allegation. The reviewing office should be required to issue a report detailing specifically its reasons for its conclusions regarding the justification for postconviction judicial review. The existence of this office would not preclude a defendant's enjoying traditional postconviction rights and procedures. Federal funding would supplement state funding specifically designated for the implementation of this proposal, especially funding for defendants to engage the services of counsel.
As is well known, statistics can easily be manipulated, especially in the realms of child sex abuse. A typical "statistic" is one in which an organization states that X percent of its evaluations prove "unfounded." The attempt here is to prove that the agency is being unbiased and it is equally receptive to an "unfounded" as well as a "founded" conclusion. The problem here is that many of the "founded" cases involve innocent individuals whose child accusers have been subjected to the aforementioned coercive interview techniques. From the point of view of the innocent person who has been found guilty because of such techniques it does not matter whether the founded group represents even one percent of all the accused. From that person's point of view he (she) has been falsely accused and even imprisoned. Accordingly, the percentages of those investigations and evaluations that are founded vs. unfounded is totally unrelated to the problems we are dealing with here.
As mentioned, full repeal of CAPTA would be a terrible mistake. First, purely from the political point of view, it would suggest to the public that the Committee has no sympathy for sexually abused children. The overzealous and naive people who have contributed so significantly to the problem with which we are dealing here have waved this banner continually. The facts are that there are indeed hundreds of thousands--and possibly millions--of children who are being abused and neglected and we are morally obligated to provide them with protection, etc. However, there are also thousands (we will never know how many thousands) of individuals who have been falsely accused of sexual abuse. CAPTA can protect these people as well.
The implementation of these changes into CAPTA will result in a moratorium on federal fundings at this point. Only when the states have demonstrated that they have complied with these provisions will federal funding again be considered. The implementation of these proposals should ensure protection for truly abused children as well as those alleged perpetrators who might be falsely accused. It would also save the federal government money, both because there would be fewer false accusations as well as a moratorium on federal funding pending the implementation of these proposals--especially the review of cases of those convicted of child abuse. The complete repeal of CAPTA will dump the whole CAPTA problem in the laps of the 50 different states. If this happens, the likelihood of quality reform would be small and the chances of perpetuation of a system gone amuck almost inevitable--at least during the next few years.
Richard A. Gardner, M.D.
Clinical Professor of Child Psychiatry
College of Physicians and Surgeons