Child Abuse and the Law - Child Abuse Laws Relating To Domestic Violence

Some local laws that have been passed impose penalties for domestic violence when children are present. For example, Salt Lake County, Utah, and Houston County, Georgia, enacted statutes creating a new crime of child maltreatment when domestic violence is witnessed by a child. Multnomah County, Oregon, passed legislation upgrading some assault offenses to felonies (serious crimes) when a child is present during domestic violence. Debra Whitcomb conducted a study involving a survey of prosecutors to determine their responses to cases where children witness domestic violence ("Prosecutors, Kids, and Domestic Violence Cases," National Institute of Justice Journal, no. 248, March 2002).

The survey asked 128 prosecutors across the country how they would respond to three domestic violence cases in which children were present. A majority of prosecutors (94%) would report a battered mother to CPS if she were found abusing the child. All indicated they would prosecute the abusing mother. Prosecutors would more likely report a battered mother if she failed to protect her child from abuse (63%) than if she failed to protect the child from witnessing the domestic violence (40%). More than three times as many prosecutors would charge the mother with a crime for the child's abuse (77.5%) than for exposure to family violence (25%). (See Table 7.2.)

Court Sides with Battered Women Whose Children Are Removed

Battered women with children are often further penalized by CPS's removal of their children. On December 21, 2001, Jack B. Weinstein, a federal judge, ruled that New York City's Administration for Children's Services (ACS) violated the constitutional rights of mothers and their children by removing the children simply because the mothers were victims of domestic violence. In this first case of

TABLE 7.2

Prosecutors' responses to scenarios involving children and abuse
Scenario	Would Report At Least Sometimes	Would Prosecute At Least Sometimes
SOURCE: Debra Whitcomb, "Table 1: Prosecutors' Responses to Scenarios Involving Children and Abuse," in "Prosecutors, Kids, and Domestic Violence Cases," National Institute of Justice Journal, Issue 248, March 2002
Mom Abuses Children	94%	100%
	(n 90)	(n 82)
Mom Fails to Protect from Abuse	63%	77.5%
	(n 87)	(n 80)
Mom Fails to Protect from Exposure	40%	25%
	(n 86)	(n 73)

its kind, fifteen battered women had brought the class action suit Nicholson v. Scoppetta.

On January 3, 2002, the judge issued an injunction ordering ACS to stop separating a child from his or her battered mother unless the child "is in such imminent danger." The injunction asserts, "The government may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother's batterer."