NCJ Number
66236
Journal
NEW ENGLAND AND LAW REVIEW Volume: 13 Issue: 4 Dated: (1978) Pages: 802-834
Date Published
1978
Length
33 pages
Annotation
MASSACHUSETTS LEGISLATION EXEMPLIFIES THE SHIFT OF LIABILITY FROM THE ABUSER TO PERSONS REQUIRED BY STATUTE TO REPORT CHILD ABUSE AND NEGLECT CASES; GENERAL LEGAL REMEDIES AND BASIC ELEMENTS OF SUCH CASES ARE ALSO NOTED.
Abstract
CHILD ABUSE IS WIDESPREAD IN THE UNITED STATES AND CUTS ACROSS ALL SOCIAL STRATA. THE TYPICAL ABUSED AND NEGLECTED CHILD IS LESS THAN 3 YEARS OLD AND IS USUALLY INJURED BY PARENTS WHO ARE ARE RIGID, EMOTIONALLY IMMATURE INDIVIDUALS, ABUSE CAN RANGE FROM MURDER TO EXCESSIVE CORPORAL PUNISHMENT AND IS LIKELY TO REOCCUR ONCE IT BEGINS. THE MOST HELPFUL DIAGNOSTIC TOOL IS THE X RAY COMBINED WITH OBSERVATION OF THE CHILD'S PHYSICAL AND EMOTIONAL CHARACTERISTICS. LEGAL RESPONSES TO THE PROBLEM CONSIST OF IMPOSING CRIMINAL OR CIVIL TORT LIABILITY ON THE ABUSER, INTERVENTION BY THE DEPARTMENT OF PUBLIC WELFARE (DPW) OR THE JUVENILE COURT TO PROTECT THE CHILD, AND REPORTER STATUTES WHICH IMPOSE CRIMINAL SANCTIONS AND CIVIL TORT LIABILITY ON INDIVIDUALS REQUIRED TO REPORT ABUSE CASES WHO FAIL TO DO SO. CRIMINAL PROSECUTION, EXCEPT IN SERIOUS CASES, CAN CAUSE GREATER ABUSE AND PRECLUDES THE POSSIBILITY FOR REHABILITATION. COMMON LAW TORT RECOVERY INVOLVES ISSUES OF PARENT-CHILD IMMUNITY AND IS AN INADEQUATE METHOD FOR DEALING WITH CHILD ABUSE WHEN REHABILITATION IS DESIRABLE. CHILD PROTECTION LAWS PERMITTING INTERVENTION BY SOCIAL SERVICE AGENCIES OFFER THE MOST CONSTRUCTIVE APPROACH, SINCE THEY PROVIDE SAFETY FOR THE CHILD WHILE COUNSELING THE FAMILY. PERSONS MANDATED TO REPORT ABUSED AND NEGLECTED CHILDREN INCLUDE MEDICAL PERSONNEL, TEACHERS, COUNSELORS, SOCIAL WORKERS, AND POLICE OFFICERS. THE DPW MUST INVESTIGATE ALL REPORTS AND TAKE ACTION IF NECESSARY. THE MASSACHUSETTS LEGISLATURE HAS RECENTLY ENACTED CRIMINAL PENALTIES FOR FAILURE TO REPORT, BUT IT IS UNCERTAIN IF THE COURT WILL ALSO IMPOSE CIVIL TORT LIABILITY. WHETHER THE COURT DEFINES DUTY TO REPORT AS ARISING FROM COMMON LAW OR THE REPORTER STATUTES WILL AFFECT PROFESSIONALS' LIABILITY. REGARDLESS OF COURT DECISIONS, THE STATUTE WIL HAVE THE GREATEST IMPACT ON PHYSICIANS WHO, IN A SENSE, BECOME THE GUARDIAN OF THE CHILD. HOWEVER, PARENTS MIGHT BE RELUCTANT TO BRING A CHILD FOR TREATMENT UNDER THESE CIRCUMSTANCES, AND PHYSICIANS COULD BE UNWILLING TO REPORT A CASE THAT WAS NEGLECTED BY A COLLEAGUE. THE DPW MAY LACK THE RESOURCES TO INVESTIGATE AN INCREASED NUMBER OF CHILD ABUSE CASES AND TECHNICALLY COULD BE SUBJECTED TO LAWSUIT. FOOTNOTES ARE PROVIDED. (MJM)