Children, Sexuality, and the Law (Families, Law, and Society)

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One emphasizes children's susceptibility when being tested in artificially and sometimes extremely stressful situations. The second group acknowledges children's limitations but offers evidence that they can resist suggestion. Identifying children's strengths and weaknesses, these researchers concentrate on methods to improve testimony Goodman et al. Research comparing children and adults in simulated situations has shown that younger children age 3 and below consistently recall less information and answer objective questions less accurately Goodman et al.

Younger children, like adults, have proven to be more suggestible when the interviewer is seen as an authoritative figure Ceci et al. Although children may have difficulty distinguishing between their own thoughts and actions, they are able to separate another person's actions from their own thoughts Johnson and Foley, The potential suggestibility of children necessitates careful interviewing techniques by professionals involved in legal investigation and prosecution of child maltreatment.

Given that most research is conducted in artificial circumstances that often bear little resemblance to the courtroom or the judicial process, the strength of laboratory research findings is uncertain when applied to real-life situations. The courtroom presents children with a mystifying and stressful environment. Cross-examination, facing the defendant, and testifying for long periods of time may affect children's ability to testify competently and accurately.

The impact of testifying can be harmful or beneficial for children; there is evidence for both. Some researchers believe that testifying in the courtroom can further traumatize children Office of Juvenile Justice and Delinquency Prevention, Others believe that testifying can be beneficial, if children are provided with an opportunity to tell their story and to be believed Runyan et al. Increased recognition of the need to assist and protect child witnesses in court has led to the development of innovative procedural and evidentiary approaches, many of which raise issues of constitutionality, due process, and fairness.

Reforms have involved system changes, such as modifications in the rules of evidence, exceptions to the restricted use of hearsay testimony, and the use of child advocates in the courtroom. A primary concern has been to shield children from having to confront the defendant in person.

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The use of videotaping and closed circuit television, which allows for a live transmission to the courtroom. The impacts of these reforms on children, adolescents, adults, and legal procedures remain unknown. Although evidentiary reforms are the subject of intense debate, there are no evaluations in this area that meet the committee's criteria for use of a comparison or control group.

Research to determine the efficacy of various reforms is limited, and knowledge of their actual impact on children is anecdotal. Innovations that enhance a child's ability to recall and relate with accuracy may improve the prosecution of child maltreatment cases that involve criminal acts. But given that the court must choose among the rights of the defendant, standards of evidence, and the potential harm to the child, further investigation of the reforms under consideration is warranted.

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Recognizing that children often need support when they testify in the courtroom, provisions to allow for victim advocates and guardians ad litem have increased. Victim advocates are often part of a community-based program not officially affiliated with the criminal justice system. Guardians ad litem ''for the suit" are appointed by the court to represent the best interests of the child in a legal proceeding. Statutes vary with regard to the types of hearings and proceedings that advocates can attend, but usually one person, such as a parent, relative, or friend, is permitted to stay with the child and may even hold the child's hand Whitcomb, Legal issues surrounding guardians ad litem include questions regarding their legal status, their proper function and responsibility, and their right to privileged communication with the child Whitcomb, In this area no evaluations meet the committee's criteria for inclusion.

One study that did not include a comparison group found that children testifying in criminal court were better able to answer questions and appeared less frightened when a parent or loved one was allowed to remain with them Goodman et al. Additional efforts to streamline the judicial process have been made but remain unevaluated in the research literature. Recent innovations include the development of specialized child advocacy teams, multidisciplinary teams to coordinate investigations, and specialized police investigative units.

Before the s, legal institutions responded with ambivalence to violence toward wives and intimate partners. The convergence of the interests of feminists, victim advocates, and legislators led to a series of reforms beginning in the late s to strengthen criminal justice responses to wife beating Lerman, ; Dutton, By , 47 states had passed domestic violence legislation mandating changes in protective orders, enabling warrantless arrest for misdemeanor assaults, and recognizing a history of abuse and threat as part of a legal. Hart , U. Codd , 47 N.

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City of Torrington , F. The array of statutory, procedural, and organizational reforms has covered nearly every aspect of the legal system.

Police departments have adopted proarrest or mandatory arrest policies. Domestic violence units were formed in prosecutor's offices, and treatment programs for abusive husbands were launched in probation departments and by community-based groups. Reforms in protective and restraining order legislation enabled emergency, ex parte relief that included no-contact provisions as well as economic and other tangible assistance to battered women. These forms of relief, as well as the application of criminal laws, were extended to women in unmarried cohabiting couples and to divorced and separated women.

A small number of jurisdictions have developed coordinated, systemic responses that bring to bear the full range of social controls and victim supports for battered women. Interventions to control violence against adult intimate partners reflect three separate but related policy goals: criminal punishment and deterrence of batterers, rehabilitation of batterers, and protective interventions designed to ensure the safety and empowerment of victims.

Legal institutions have been used to advance each of these goals, but the evaluations of interventions are complicated by the lack of common measures that could assess whether progress in one area helps or impedes the achievement of other policy goals. In addition, the research literature does not include evaluations of general deterrent efforts of these reforms the extent to which legal interventions reduced the level of domestic violence in a community. The literature examines the effects of legal interventions only on the identified cases to which they apply.

Eight interventions are reviewed in the sections that follow: 1 reporting requirements, 2 protective orders, 3 arrest procedures, 4 treatment for domestic violence offenders, 5 criminal prosecution, 6 specialized courts, 7 systemic approaches, and 8 training for criminal justice personnel. Unlike the reporting of child maltreatment, which is mandatory by law in all states, the reporting of domestic violence is often part of the state's injury reporting.

The "battered woman's defense" was applied not only in cases in which the woman killed the man during an attack, but also in cases in which the man was not actively threatening or abusing the woman at the time of the incident Schneider, As of August , 45 states and the District of Columbia had laws that require health professionals to report, usually to law enforcement officials, certain injuries suspected of being caused by domestic violence Hyman et al. In 18 states and the District of Columbia, a report is required when the patient's injuries are suspected of having resulted from an illegal act; since battering—the physical or sexual assault of an intimate partner—is considered criminal in all states, this requirement is tantamount to requiring reports for injuries caused by domestic violence.

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  • In only five states do the reporting laws specifically and narrowly require the reporting of injuries when domestic violence is suspected. In , California enacted the first state legislation requiring health care professionals to report domestic violence to legal agencies. More uniform reporting could provide datasets similar to those available for child maltreatment, thereby allowing better tracking of prevalence trends. However, the disadvantages of mandatory reporting discussed above 5A-1 may be even more serious for domestic violence than for child maltreatment.

    Those who work with battered women argue that mandatory reporting could undermine the autonomy of adult women, prevent them from seeking necessary services, and in some cases put them at increased risk of serious harm. There have been no evaluations of reporting requirements for domestic violence. In light of the potential dangers to victims, careful evaluation of the new mandatory reporting law in California seems warranted before other states pass similar requirements.

    Beginning with the passage of the Pennsylvania Protection from Abuse Act in , every state now provides for protective orders in cases of domestic violence Klein, undated. Protective orders are civil injunctions that establish restraints against a person accused of threatening or harassing the individual who requests the order. Civil orders of protection also known as restraining orders are issued by the courts upon request by a victim of domestic violence; they state that the offender the "respondent" may not assault her, enter her home, approach her, or have any communication with her for a specified period of time.

    States typically allow for temporary and permanent protective orders; temporary orders are in effect for a short period of time, often several weeks, and may be issued on an emergency basis without a hearing. A permanent order may be awarded after a hearing; permanent protective orders are often good for one to three years Klein and Orloff, The advantages of protective orders are that they are victim-initiated and timely.

    They allow a relaxed standard of proof, focus on the victim's protection,.

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    However, only a few studies have examined their effectiveness in reducing domestic violence; the extent to which protective orders are used in conjunction with criminal prosecution and the types of errors that are avoided as well as associated with relaxed evidentiary standards are generally unknown.

    In the absence of controlled studies, it is not possible to determine the role that protective orders play in discouraging the recurrence of violence. It has been suggested that temporary protective orders are frequently violated and that few sanctions exist for violations Harrell et al.

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    Protective orders can be issued by civil or criminal courts, but the large majority are handled by civil courts. The police have a long-standing ambivalence about the priority of enforcing civil remedies in the criminal justice system, and poor coordination of information between the civil and criminal systems may make it difficult for police to know who has a protective order when a "domestic" call is received.

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    One study indicates that protective orders against respondents with a criminal history are likely to be less effective in deterring future violence than those obtained against respondents without such a history Keilitz et al. Although protective orders are not designed to deter violent behavior, they may play a role in providing security to and building self-esteem for victims Keilitz et al.

    It is uncertain whether protective orders can help deter future violence when combined with criminal prosecution or social interventions, highlighting the need for research experimentation to compare the relative impact of comprehensive legal reform efforts and single law enforcement strategies. Weak enforcement and limited punishment for violations may undermine the utility of the protective order. The use of electronic devices to monitor compliance with protective orders is a recent innovation in a number of communities. These systems include alarm systems in victims' homes, portable panic buttons that victims can activate when offenders approach, and bracelets worn by the offender that set off alarms if he comes within a specified distance of the victim's home.

    Electronic systems have the potential to generate a swift response from police in the event of the violation of a protective order. Whether or not these systems increase victim safety has not yet been determined; however, both technical and operation problems have hindered the performance of electronic monitoring in home confinement programs for other crimes. Arrest for domestic violence is perhaps the best-studied intervention for family violence.

    Many evaluations employ experimental designs, random assignment groups, common measures, and replication studies that represent exemplary. Table 5B-3 lists eight evaluations of arrest that meet the committee's criteria for inclusion.