Pediatric Annals

Advocating for the Abused Child: Can Ethics and the Law Be in Conflict?

Lawrence S Wissow, MD; Peggy Mainor, JD

Abstract

The following article is presented in the form of an interview with Lawrence S. Wissow, MD, and Peggy Manor, JD, conducted by Guest Editor John M. Free' man, MD.

John M. Freeman, MD: Dr Wissow, as a pediatrician, you are a member of a group that prides itself on being "child advocates." Furthermore, as head of the Child Abuse Team at Johns Hopkins, you might be termed its "chief child advocate."

Ms Mainor, as a lawyer you are by definition an advocate. As a child abuse prosecutor, you might be termed one of the city's "chief advocates" for children.

You two have worked closely together on behalf of children in the area of child abuse. Do you ever find yourselves in conflict over the course of action to be taken in a given case? Do either of you find yourselves in conflict between "the legal thing to do" and the "ethical course to take?" Are there other times when the two of you are in conflict? How do you resolve those conflicts?

Lawrence S. Wissow, MD: The dilemmas posed by child maltreatment reporting statutes have earned a permanent place in the medical ethics literature.1 The following is a typical case history presented to students.

George is 12 years old; he asks you if he can tell you something that no one else must know: he wants an AIDS test. He reveals that his scoutmaster, a prominent citizen of your small town, has been sodomizing him regularly for the past 2 years and threatening him with dire consequences if he ever tells. George begs you not to tell anyone, knowing that all the kids at school, not to mention his former Eagle Scout father, will reject him. You identify with the scoutmaster and the ruin that disclosure will bring to his family. Should you obey the law and go to the authorities, or confront the scoutmaster privately and urge him to resign his position and seek treatment?

This presents a classic ethical predicament. No action reconciles the need to respect the patient's autonomy and privacy rights with the duty to protect him. Yet acting to protect the patient is almost certain to harm the scoutmaster. The dilemma: to whom is the clinician's primary allegiance owed? To the child, his family, the scoutmaster, or the other scouts? No wonder that, by the best estimates, professionals report only about 20% of the suspected child maltreatment cases they encounter.2

Peggy Mainor, JD: These decisions are agonizing. When it comes to sexual abuse, the pediatrician is not going to be able to make the hurt go away, and that is hard to accept. However, the fact is that most state legislatures have taken the decision away from the pediatrician. Doctors must report all cases of suspected child abuse. Not having a choice makes things easier. In making an ethical, rather than a strictly legal, decision to report, the physician must consider the consequences of not reporting. Most sexual abusers, particularly abusers of young boys, abuse again and again, victim after victim. Even putting the law aside completely, I couldn't live with myself if I didn't report George's scoutmaster.

Wissow: Reporting laws incorporate all of our society's lack of consensus about therapeutic versus punitive approaches to deviancy, the status of the child within the family, and the role of families within society. Reporting laws seem simple - "promptly report any case in which abuse might be reasonably suspected" - because no one dares to legislate any of the finer points. Unfortunately, that leaves all of the ambiguities in the hands of clinicians, ready to be second-guessed…

The following article is presented in the form of an interview with Lawrence S. Wissow, MD, and Peggy Manor, JD, conducted by Guest Editor John M. Free' man, MD.

John M. Freeman, MD: Dr Wissow, as a pediatrician, you are a member of a group that prides itself on being "child advocates." Furthermore, as head of the Child Abuse Team at Johns Hopkins, you might be termed its "chief child advocate."

Ms Mainor, as a lawyer you are by definition an advocate. As a child abuse prosecutor, you might be termed one of the city's "chief advocates" for children.

You two have worked closely together on behalf of children in the area of child abuse. Do you ever find yourselves in conflict over the course of action to be taken in a given case? Do either of you find yourselves in conflict between "the legal thing to do" and the "ethical course to take?" Are there other times when the two of you are in conflict? How do you resolve those conflicts?

Lawrence S. Wissow, MD: The dilemmas posed by child maltreatment reporting statutes have earned a permanent place in the medical ethics literature.1 The following is a typical case history presented to students.

George is 12 years old; he asks you if he can tell you something that no one else must know: he wants an AIDS test. He reveals that his scoutmaster, a prominent citizen of your small town, has been sodomizing him regularly for the past 2 years and threatening him with dire consequences if he ever tells. George begs you not to tell anyone, knowing that all the kids at school, not to mention his former Eagle Scout father, will reject him. You identify with the scoutmaster and the ruin that disclosure will bring to his family. Should you obey the law and go to the authorities, or confront the scoutmaster privately and urge him to resign his position and seek treatment?

This presents a classic ethical predicament. No action reconciles the need to respect the patient's autonomy and privacy rights with the duty to protect him. Yet acting to protect the patient is almost certain to harm the scoutmaster. The dilemma: to whom is the clinician's primary allegiance owed? To the child, his family, the scoutmaster, or the other scouts? No wonder that, by the best estimates, professionals report only about 20% of the suspected child maltreatment cases they encounter.2

Peggy Mainor, JD: These decisions are agonizing. When it comes to sexual abuse, the pediatrician is not going to be able to make the hurt go away, and that is hard to accept. However, the fact is that most state legislatures have taken the decision away from the pediatrician. Doctors must report all cases of suspected child abuse. Not having a choice makes things easier. In making an ethical, rather than a strictly legal, decision to report, the physician must consider the consequences of not reporting. Most sexual abusers, particularly abusers of young boys, abuse again and again, victim after victim. Even putting the law aside completely, I couldn't live with myself if I didn't report George's scoutmaster.

Wissow: Reporting laws incorporate all of our society's lack of consensus about therapeutic versus punitive approaches to deviancy, the status of the child within the family, and the role of families within society. Reporting laws seem simple - "promptly report any case in which abuse might be reasonably suspected" - because no one dares to legislate any of the finer points. Unfortunately, that leaves all of the ambiguities in the hands of clinicians, ready to be second-guessed by the authorities.

How much suspicion is enough, for example? Many cases could involve possible maltreatment, even though it isn't at the top of the differential diagnosis. When reports are made for such cases, they may never get beyond the social service agency's screening desk or result in any help being offered the family. In addition, many social service agencies, citing personnel shortages, have already told us of all the clear-cut kinds of maltreatment that they do not want to hear about, including educational neglect, emotional abuse, and "uncomplicated" neonatal drug exposure.

The mandate to report promptly also poses problems. We explicitly do not have to be able to prove abuse at the time a report is made, but the suspicion must be clearly in focus. Delays in reporting often help us better understand a situation and make a report that is more detailed and has a better chance of resulting in help for the child and the family in question.

Mainor: It isn't the physician's job to be the investigating social worker, prosecutor, judge, and jury, and I wouldn't think most doctors would want it to be. A report of suspected child abuse should lead to a sensitive, thorough investigation. When that does not happen, we all need to become more involved in improving the system. Not reporting at all isn't the answer.

Here's another example: A single mother brings a 2-year-old child with pain in the arm into your office, and you find a spiral fracture. You find no other evidence of abuse, and the mother says that she doesn't know how it could have happened, that perhaps the child fell out of bed. You suspect abuse, but are not sure. Some pediatricians are reluctant to report such a case, but the law says they must.

I think that the reluctance to report is based on a misunderstanding of how the system works and on a few anecdotal horror stories. The social worker who would visit the home after your report may find a history, through previous reports, of a pattern of abuse to your patient or other children in the home of which you were not aware. TTie worker may find that the family needs help or counseling. Perhaps the mother has a new boyfriend who was babysitting and the mother was not aware of his prior record of drug abuse or violence. At the very least, the child may not be properly supervised. In each of these situations, alternatives to prosecution exist. Most large cities have free and effective parenting programs, and most young parents could use a parenting program. Some parents think that a young child is deliberately wetting or soiling himself, and the abuse is a response to that misunderstanding. Many young single mothers are stressed and need support. Often their boyfriends have even less experience and tolerance for young children. Increasingly, one or both parents have a drug problem. Parenting classes and drug abuse programs can help these situations. This illustrates the value of reporting to a system that involves multiple decision makers, as imperfect as that system is. Does the doctor really have the time, inclination, or expertise to decide what the problems are, to deal with them, and to follow through?

Wissow: I heartily agree that the social service system has the potential both to provide more resources and to ensure continuity of care. One key service the agencies provide that the clinician usually cannot is the diagnostic or therapeutic home visit. As you point out, though, the system is imperfect. Field workers are frequently underpaid and undernamed. There are inadequate mechanisms in place to coordinate efforts between agencies - for example, between social services and the police - or to have them agree on common therapeutic goals.

Perhaps the biggest problem for me, though, is when I make a report to a social service agency to get a child and family some help, and that report evolves into a criminal prosecution. Pediatricians generally shy away from using their skills in the service of punishment but often work closely with prosecutors in criminal child abuse trials whose overt goal is to establish that a parent has committed a criminal act and to hand out punishment.3

Mainor: Workers in child protective services find abuse in less than half the cases reported, and less than 5% of all reported cases are prosecuted. I hope that society is beginning to realize that building more and more prisons is not going to solve the problem of child abuse. The goals of prosecution should be to protect the safety of the child and other potential victims and to break the chain in which victims grow up to be abusers. Occasionally (many people would be upset if they knew how rarely), these goals require jailing an abuser or taking a child away from an abusive family. Jail is definitely the place for dangerous and incorrigible abusers, but prosecution can also be used as an incentive to assure successful completion of counseling, parenting classes, and psychiatric or drug treatment programs. A jail sentence can be suspended pending completion of these classes. The legal system is far more powerful than the threats of a social worker in encouraging changes in behavior. An abuser with an "attitude" may need a push to get into counseling.

Wissow: I certainly agree in principle with what you are saying, and there are data that support some of your case for involvement of the criminal justice system. The question remains, though, whether that involvement can be harnessed for therapeutic goals, or whether it runs off in other directions with priorities of its own.

One way of trying to answer these questions is to ask if criminal prosecution, or the threat of it, can have any therapeutic role for the child, abuser, or family. Recidivism rates after treatment for various forms of child abuse appear to be high. An evaluation of 11 federally sponsored abuse intervention demonstration projects found that 30% of enrolled parents committed severe, repeated abuse while under treatment; health care workers judged only 42% to be less likely to abuse once treatment had ended.4 Although specific data regarding treatment of sexual offenders are difficult to interpret, most studies suggest that recidivism rates are also substantial.5 Against this background, the threat of prosecution does seem to be an effective tool for increasing treatment compliance. Treatment of pedophiles, for example, may not fit the classic, insight-oriented psychotherapeutic model.6 Instead, sex offender treatment is based on a model more closely related to the treatment of addictions. Sex offenders have powerful abilities to deny and defend their offenses and to seduce their therapists into believing that they have been cured. Successful treatment is rarely carried through on an entirely voluntary basis.

Mainor: The results of these studies are depressing, but I'm sure that the recidivism rate of parents who are not reported and are not receiving treatment is much higher. The fact that 70% of the parents stopped abusing during their treatment is encouraging. The threat of prosecution or of a prison sentence can make someone attend a treatment program, but treatment can't make a hardened, vicious abuser who doesn't want to change into a decent parent. That's why we can't decriminalize child abuse. If treatment fails, the prison sentence can be imposed.

Not everyone who has children is capable of being a parent. In such cases, the children should be placed in loving adoptive homes as soon as possible. Most physical abusers are dangerous only to their own children. In my experience, many seek out help and benefit from counseling. I share your pessimism about treatment for sexual abusers. Until an effective treatment is demonstrated, prison may be the only option for incorrigible abusers.

Wissow: I agree that "parentectomy" may be the only choice in some cases, but it must be seen as a last resort. It seems nice to offer a child the alternative of a loving adoptive home, but the reality is more likely to be a series of placements spanning many years while the system sporadically and unsuccessfully tries to go through the legal proceedings necessary to make adoption possible.7 For me, the more germane question is whether the process of a criminal prosecution can benefit the child and family.

Although few objective data are available, one study by Runyan and colleagues8 suggests that at least some courtroom proceedings can be therapeutic for the children involved. In that study, abused children who had experienced juvenile or family court proceedings had a decrease in anxiety compared with children who were still awaiting criminal trials or other interventions.

One major hope from any legal proceeding is that the verdict of the court will serve to vindicate the child's claims and thus serve as a powerful signal to child and family regarding the abuser's responsibility for what has happened. In theory, the child, when properly prepared, has the opportunity to state what has happened in an open and accepting forum. Even a confrontation with the alleged abuser, in a controlled setting, may help to improve the child's self-esteem.

Taking a case to court, however, has many risks. Even if the abuser is found guilty, after sentencing some of the child's initial feeling of vindication or even revenge may be replaced by guilt. Alternatively, if the sentence is seen as too light or if the abuser is acquitted, the child may lose faith in the judicial system or again become a scapegoat for other members of the family. For these reasons, the decision to prosecute an abuser, or to have the child testify in a family or juvenile court proceeding, must be made very carefully. Before the decision is made, the child and supportive family members must have some understanding of how courts work. Perhaps most important, they must understand the different standards of proof required in clinical work, family and juvenile courts, and criminal proceedings. They must come to grips with the feet that it may be perfectly clear to them that abuse has taken place, but that proving the identity of the perpetrator "beyond a reasonable doubt" may be difficult.

We also fece a difficult legal climate in which to protect children during courtroom proceedings. For example, laws that allowed children to be spared cross-examination in open court and participate via closed circuit television or videotape have been challenged, and protection of the anonymity of victims has been reversed.

Mainor: A criminal court is never an open and accepting forum. I agonize over whether to put a young child on the witness stand. Nothing is more gut-wrenching than asking a child to testify against his or her parent. I prefer not to do it unless it is clear that testifying would be therapeutic for this child. The prosecutor is not the best person to make that decision. Attorneys, family members, social workers, and physicians must talk together about their goals for social services intervention or legal action, or why legal action might be inappropriate. A particular outcome should be judged according to the best interest of the child, rather than the immediate impact on the abuser. Sometimes, though, the trauma of one child's testimony has to be endured for the greater good of potential victims.

Many cities are organizing child advocacy teams to ensure that all interested parties have access to relevant information about cases in which they are involved and to provide a forum in which to discuss concerns. Some states have legislated exceptions to the confidentiality laws that require social workers to share information on the progress of investigations with treating professionals.

I was told about a case of a moderately retarded adolescent with severe epilepsy who was found to have severe genital warts. The child came from an apparently loving and caring family where the child lived with the divorced mother, but frequently spent time with the father. Should this be reported as a case of suspected sexual abuse? What happened was that it was reported to the social service worker who in turn reported it to the out-of-state police where the family lived. The family became aware of the suspicion when the police contacted them, and they were justifiably upset. This is clearly the wrong way to handle the problem, but it doesn't mean that the problem should not have been handled. It is possible that the warts may not have come from sexual contact at all, or from contact outside the home. If contact was outside the home, the offender may be molesting many other children, and it would be important to find the abuser and stop the abuse.

A more ethical approach to this case would have been for the pediatrician to sit down with both parents and explain to them the possible sources of the warts in a nonaccusatory fashion. They could then be enlisted to assist in a social service investigation of the home, the school, and other possible sources of the infection. As loving parents, they would have been eager to find the offender, if indeed there was one, both for their child's sake and to protect others. Working as a team, the pediatrician, the social worker, and if necessary, the prosecutor and the court, could avoid some of the potential problems that we have discussed and the family anger that occurred in this case.

Wissow: There is no doubt that a family must be part of the process of deciding to make a report; it is not only ethically correct but clinically important. One of the risks clinicians must explain to families, however, is that once a report is made there can be no guarantees of what "the system" will do. We just don't have enough effective mechanisms for the private and public sides of the team to sit down and agree, from the outset, how a case will be investigated and what level of intervention is required. Some states are experimenting with changes in reporting statutes that would allow this to happen (for example, Maine), and prominent scholars of child abuse are moving in a similar direction.9

The question that often causes clinicians to define their personal ethics with regard to child abuse is whether they will work with a defense attorney in a child abuse case. Typically, an attorney calls the clinician and says that his client is falsely accused, and that the basis for the accusation is a medical report stating that a child's injuries had to have been intentionally inflicted. Would the clinician please review the report and judge its reliability; if appropriate, would the clinician be willing to state that the cause of the child's condition is not nearly so clearcut?

Working with defense attorneys can benefit the clinician who is genuinely interested in involvement with child abuse, if only because it helps one to better understand the adversarial nature of legal proceedings and why prosecutors and attorneys representing children do some of the things they do. Working with both defense attorneys and child advocates can also help prevent a clinician from being labeled as a crusader for either point of view. This is important if the clinician is to remain effective when working both with families and in liaison with clinicians who treat abusers. Sooner or later, however, clinicians who consider such offers must question the premise that they can participate in good conscience, adding their impartial input, and leaving it to the court to sort out the truth. Working with the law inevitably leads to the temptation to join the adversarial process, using it not to find the truth but as a means to validating one's own sense of the truth. If you are convinced that a child has been abused, are you willing to help a defense attorney see holes in the clinical reasoning that led to a colleague's diagnosis?

Child abuse has clearly blurred the lines between the roles of the attorney and the medical clinician. It has called on clinicians to be agents of the law, and on attorneys to make clinical judgments as they go about the administration of an "impartial" system of justice.

Mainor: I wish I could say that the courtroom always bring out the truth. The standard of reasonable doubt, however, is a formidable obstacle when the only witness is a child. I do think the blurring of roles has moved the system toward having more of the participants in the process advocate for the child and make protection of the child paramount. Not every prosecutor is salivating to send people to jail. Not every suspected child abuse case reported to the Department of Social Service or to the police results in the breakup of a family, a child in foster care, or even a doctor having to testify in court.

Wissow and Mainor: As a pediatrician and a prosecutor who work closely together in a large city with all the attendant problems of drug abuse, teenage pregnancy, poverty, and despair, we face enormous problems and have precious few resources with which to respond. Cooperation and coordination among the professionals and agencies involved in child protection offer the only hope of maximizing those resources and achieving good for both children and their families. Working together requires all of us to step out of our usual roles and creates pressure for us to find new structures within which to organize our collective efforts.

REFERENCES

1. Schoeman E Should child abuse always be reported? Hastings Cent Rep. 1983i8:1920.

2. US Department of Health and Human Services, Office of Human Development Services. Executive Summary : National Study o/ the Incidence and Severity of ChM Abuse and Neglect. Washington, DC: US Government Printing Office; 1981. US Dept of Health and Human Services publication (OHDS) 81-30329.

3. De Jong AR, Rose M. Frequency and significance of physical evidence in legally proven cases of child sexual abuse. Pediatrics. 1989;84:1022-1026.

4. Cohn AH. The pediatrician's tole in the treatment of child abuse: implications from a national evaluation study. Pediatrics. 1980;65:358-360.

5. Finkelhor D. A Sourcebook on ChHd Sexual Abuse. Beverly Hills, Calif: Sage Publications; 1986.

6. Salter AC Treating Child Sex Offenders and Victims: A Practical Guide. Beverly Hills, Calif: Sage Publications; 1988.

7. Ratterman D. Termination barriers: speeding adoption in New York State through reducing delays in termination of parental rights cases, A8A Juvénile and CIuId Welfare Law Reporter. 1991;10:94-95.

8. Runyan DK1 Everson MD Edelsohn GA, Hunter WM, Coulter ML. Impact of legal intervention on sexually abused children. J PeaW. 1988;! 13:647-653.

9. Finkelhor D, Zellman GL. Flexible reporting options for skilled child abuse professionals. Child Abuse Negl. 1991;15:335-341.

10.3928/0090-4481-19920501-10

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