Lis on Law: Child Abuse Law — Protecting the Innocent?

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Thinking about taking some of those cute little snapshots of your kids at bathtime? Think again. The way many of today's child abuse laws are written and executed, those snapshots could land your kids in a foster home — and you in jail. And that begs the question: Have child abuse laws begun to go too far?

Granted, we have all been privy to horrific and infuriating stories about children being lost, injured, or worse, despite the local child welfare agencies' prior knowledge of their mistreatment. It goes without saying that the law must remain tough when it comes to the safety of our children. But it is also essential that child protection laws reflect one our nation's most sacred legal tenets: the presumption of innocence until proven guilty.

Consider Jody Jenkins, a former resident of Savannah, GA, and author of the recent article, “They Called Me a Child Pornographer.” His abbreviated story is this: Mr. Jenkins, who had no prior criminal record, snapped several photos of his family during a “back-to-basics” camping trip. (Several pictures were of his three-year-old daughter skinny-dipping; another included a picture of his naked eight-year-old son, hamming it up in front of the camera as he dried his underpants on a stick near the fire after a swim. Most, however, portrayed run-of-the-mill camping stuff.) A drugstore photo clerk later determined that several of the photos were “questionable,” and alerted the Savannah police. Jenkins was eventually cleared of “child pornography” and “sexual exploitation of a minor,” but not before Savannah police and the Department of Family and Child Services (DFCS) had put his family through an excruciating multi-week odyssey in which friends and family were interviewed, employers were contacted, a lawyer was retained — and the threat of losing custody of his children was ever-present. “Our most basic right and instinct as parents — to protect our children — had been usurped by a single accusation,” Jenkins wrote.

According to a 2004 report by U.S. Department for Health and Human Services, more than half (60.7 percent) of abuse investigations lead to a finding that the alleged mistreatment was “unsubstantiated.” Dr. Douglass Besharov, a child abuse expert at the Maryland School of Public Affairs, and the first director of the National Center on Child Abuse and Neglect, estimates that out of the nearly 3 million reports of child abuse made each year, seven in 10 of them are without merit.

Nev Moore of Barnstable, Mass., thought things couldn't get any worse after a night in 1996 when her husband, Tom, got drunk and pushed her during an argument outside their home — that is until 13 months later when the Massachusetts Department of Social Services snatched the Moores' eight-year-old daughter out of school and sent her to an undisclosed foster home. “I didn't know where she was, or what kind of people she was with….I can't describe the fear I felt,” Moore confided to FOX News.

Moore said she felt blind-sided by the state's actions which resulted in her daughter being kept in foster care for a year. Her husband had been sober and in counseling since the pushing incident (which she maintained had been a one-time aberration). Besides, she thought, neither she nor her husband had ever been accused or charged with any sort of child abuse — and she couldn't believe that the state would leave Brieanna in her home for 13 additional months if she had truly been in danger. “These people said they took me for my own good,” a nine-year-old Brienna later testified before the National Press Club. “But how is it for my own good if it broke my heart?”

For those with low incomes or different cultural traditions, being falsely accused of child abuse can be particularly devastating. In 2003, Jacqueline Mercado, a 33-year-old Peruvian immigrant living in Dallas, TX took a few photos of her young children at bathtime; in one, Mercado was breastfeeding her infant son. After Mercado dropped off the film for processing, a technician determined they were “suspicious,” and, as required under Texas law, immediately contacted local authorities. Soon after, police were rummaging through her house for kiddie porn, a state welfare worker arrived to take her children away, and Mercado was charged with “sexual performance of a child,” a second degree felony punishable by up to 20 years in prison. Victor Jaeger, a Peruvian-born pastor, explained to the Dallas Observer at the time that breastfeeding was culturally significant in his native country. “My cousin sent me a picture of her newborn, and it was of the baby being breast-fed,” said Jaeger. “As someone who has lived here for 20 years, I ask myself, 'Why did she send me that picture?' To her, it was nothing.” Although the district attorney eventually dropped the charge (thanks in large part to Mercado's legal team who had agreed to work for free), Mercado had to fight for weeks to get her children back.

It has been 32 years since the Child Abuse Prevention and Treatment Act of 1974 (text) was signed into law, and thankfully, a lot of important reforms have been put into place since then. Even so, the law contains no provisions for training personnel to identify abuse, no checks or balances to protect those wrongfully accused, and it virtually immunizes child welfare workers and false accusers from liability. “At the very least,” wrote Jody Jenkins, “a pair of trained eyes — those of either a lawyer or a public official with specific expertise in child [abuse] — should look at the evidence and make an informed decision before starting this demeaning, costly, and painful process.”

“I don't believe the CPS system engages in pervasive violations of human rights,” said Harry Spence, commissioner of the Massachusetts Department of Social Services, to FOX News in 2002. But he acknowledged that the question of whether a state takes children from their homes is too often a valid one. “We think the debate is very important,” he said.

Let the debate begin.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.