Measuring Child Abuse Incidence

Boy with Black Eye Hugging Teddy Bear --- Image by © Guntmar Fritz/zefa/CorbisProbably you are familiar with some version of the old philosophical riddle “If a tree falls in the forest and there is no one there to hear it, is there still a sound?”  Today’s question is similar: “If a child is maltreated but the maltreatment is not reported to authorities, does it still count as child maltreatment?”

I do not mean to be flip.

One of the perennial controversies in child protection circles is how high the rate of child maltreatment actually is, and the answer is never straightforward.  It depends on how we define abuse and neglect (physical, emotional and sexual), how we measure it (Third party reports? Self-reports by victims or perpetrators? Arrests? Convictions?), and whom we think it affects (Poor people? Addicts? Members of certain minority groups? Everyone?)  A lot rides on the answers to these questions, from public funding to public attention to the issue, and the answers often vary from time to time and place to place.

There are, however, some areas of agreement. 

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Adoption and the Indian Child Welfare Act

Although major cases involving gay marriage have grabbed most of the headlines in recent weeks, the Supreme Court of the United States handed down yet another important family law case at the end of this year’s term. In Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013), the Court held in a 5-4 decision that Sections 1912(d) and 1912(f) of the Indian Child Welfare Act do not apply in situations where a parent has never had custody of his child. This reversed a South Carolina Supreme Court decision and remanded an already protracted adoption and custody dispute for still more proceedings in state court.

The facts of the case are mostly undisputed. Baby Girl’s parents, who lived about four hours away from each other, became engaged in December 2008. About a month later, Birth Mother (who is “predominantly Hispanic”) informed Birth Father (a member of the Cherokee Nation) that she was pregnant. The relationship went downhill thereafter, apparently at least partly because the couple differed over what to do next: Birth Father wanted to move up the wedding and refused to provide financial support until after the marriage while Birth Mother did not agree to this and broke off the engagement in May,2009. In June of that year, Birth Mother sent a text message to Birth Father, asking if he preferred relinquishing his parental rights or paying child support, and he texted back that he would rather give up his rights. It is undisputed that Birth Father provided no financial or other support to the mother or baby during the pregnancy or during the four months after Baby Girl was born.

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(Marriage) Equality and the Popularity Paradox

=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition.

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