The United States has always prided itself in being a custodian and upholder of international human rights. As a super power, it has set the pace for recognition and protection of human rights by assenting to different legal international instruments and domesticating them. However, its spirit seems to falter when it comes to children rights and youth well-being (Rothschild, 2017. Are children rights human rights? The United States attitude towards a legal instrument by the United Nation in respect of children aroused the desire to establish and demystify this scenario. This paper seeks to make an in-depth analysis of inter alia the rights of children, the most prevalent forms of child abuse, the legislations pertaining to children rights and how the courts have implemented these laws.
Children are considered vulnerable beings deserving protection from the ugly claws of the world. Although most people consider child abuse in a narrow and constrained perspective of physical abuse, child abuse can manifest itself in any form be it physical, emotional or mental abuse (Ackner et al., 2013). The most prevalent form of child abuse is sexual abuse and it goes without saying that it could be without doubt the most reported and documented case scenario. Nevertheless, any form of child abuse should be reported to the authorities regardless of the perpetrator. There is need to cultivate a strong culture of child welfare not just as a façade but as real foundation informing the best interests of the children.
The menace of child abuse has haunted the society for the longest time. This is so despite the various legal instruments which have been put in place to curb this menace. As a society, one cannot help but wonder about the resilience of these unpalatable incidents visited upon the young ones. Where something has a legal backing putting sanctions on its practice, there is usually an expected turn-around from such behaviour but when it comes to child abuse, this is not the case (United States: Events of 2016, 2017).
There seems to exist a resilience and unquenchable thirst to abuse children rights. However, this might not be in the everyday record we peruse due to the fact that most cases tend to go unreported. Consequently, this wrongly depicts a united front to curb such behavior while the sad truth is that the society seems to be mark timing at the stage of baby steps when it comes to this fight. It is estimated that 24% of children become are abused in their first year of life. In 2015, approximately 1,670 children succumbed to child abuse while child protective care centers received a rough estimate of 700,000 cases of child abuse (Co, 2017). Whether it is the society which has failed to protect its most vulnerable or such failure is attributable to the legislative arm of the government, this is an uncalled for debate.
There are in place numerous legislations in regard to children rights. These instruments range from those with international status bestowed upon them to domestic legislations which are specific to the United States jurisdiction. It therefore comes as a surprise that such volatile culture towards children seems to thrive amid such measures being in place (United States: Events of 2016, 2017). It is imperative to note that this is a positive indicator of the system’s failure to adequately protect the children. In order to address this issue conclusively, there is need to depart from the traditional view of whether there is in place sufficient laws to curb the menace. A new perspective of interrogating the root cause of the failure by the existing laws should be adopted for one to aptly decipher the persistent menace of child abuse.
The rights of children must be protected by all means and at all cost whether by the state or the society. Any blame game attributed to failure to undertake the necessary measures is an unacceptable culture. It is important to note that the duty of the government does not end at legislating the respective laws in this sphere. It is called upon to take all measures necessary to see to it that the particular legal instruments are given a breath of life (Co, 2017). This can be achieved by ensuring that there are practical and achievable measures in place to aid in implementing these. For example, it is prudent for the government to not only enact a certain legislature but also ensure public participation before such enactment can be done. It can positively be argued that public participation creates legal awareness and emancipation which may most likely reduce the current trend of child atrocities.
Despite its unwillingness to ratify one of the prominent the United Nation’s convention on children rights, some people argue that the United States commitment to the protection of children rights is unshakable. Some may question this commitment intensely and conclude the government somehow maybe deemed as a perpetrator itself. Nevertheless, it is important to acknowledge that there are quite some reasonably good laws which have been enacted to curb this menace.
One of the most celebrated is The Child Abuse Prevention and Treatment Act (CAPTA) law which was enacted in 1974 and reauthorized in 2010. This is the largest legislative body which encapsulates in an elaborative manner the rights of children. Among the recognized rights include the right to ethical, legal and fair treatment of children. It further enshrines their right to be free from any form of abuse be it sexual emotional, psychological or physical.
In addition there is in place a mandatory reporting law. This law mandates all persons who work closely with children to prudently report any suspicious dealings involving a child. This law tries to harmonize all perpetrators whether they are the victim’s family or a total stranger. Although the spirit of this law is state specific, it can be deemed as a stepping stone towards alleviating the vice of child abuse. The two conspicuous laws in this sphere coupled with a myriad of state specific laws to some extent ensure children rights are protected within the United States’ jurisdiction. For a state of its stature, it is evident that the variance in applicable laws in matters pertaining to children rights is not a picture perfect scenario.
Having successfully established the existence of legal instruments, it is important to analyze the mode of implementing the written laws. Laws do not exist in a vacuum, they exist in a society and the society has forever been known for its resistance to change. Take for example a scenario in which the legislature enacts a law which makes corporal punishment for children illegal. Present the scenario in a societal setting which has carried out this practice for long. Obviously, the expected outcome is some form of resistance from the society. With the law in place and the prevailing resistance, the court must step in and either implements the law as is or interpret it to determine its legality.
An effective court system is a sure way of ensuring the operability of any legal instrument. When the legislative arm of government enacts laws, there should be some form of certainty as to its implementation and most especially where the legal instrument is sound. In cases where the courts are not keen to reinforce the legislature’s efforts, it can be said that the whole system has failed (Co, 2017). That notwithstanding, seeing as the court is a big part of the government, most times the blame falls squarely on the government.
Although courts are meant to promote justice, one can positively say that at times it becomes hard to further this mission and objective. The evident legal divide is a common feature in the court rooms (Brico, 2018). As per s research by the American Psychological Association the likelihood of abusive fathers succeeding in custody cases is way higher than that of the abused mother (Brico, 2018). The resultant effect of such glaring injustice exposes the child to a lifetime of not only anguish and emotional torture but also a violent unhealthy environment. This ultimately affects the child’s right to grow up in a conducive environment. Protracted court battles can in their own form be an abuse especially where the children victims are forced to constantly interact with their perpetrators in the court rooms in pursuit of justice.
Despite the well-known fact of the role the state should play when it comes to rights of citizens and more so those in the margin of vulnerability, the 1989 landmark decision in DeShaney v. Winnebago County Department of Social Services came as a surprise to many. The honourable judge in that matter opined that it was never the mandate of the government to protect abused children and any other citizens in cases where it is not an active participant of the harm (Co, 2017). This is a perfect example of the few cases in which the court has purported to mislead the government when it comes to children rights. It is the supreme duty of the state to intervene and protect its citizens irrespective of the perpetrator.
Similarly, some courts have always viewed child witness differently and are not as eager to admit their testimony. The evidence is often scrutinized jealously before admission. This depicts a system that is still struggling under the influence of the infamous Crawford v. Washington case. This case set a precedent which requires thorough scrutiny of evidence before the same can be admitted (Harmon, 2014). This means that if presented with a case scenario in which the only witness to the abuse is a child and unfortunately the threshold is not met, the likelihood of the perpetrator walking scot-free is high. Instead of adamantly applying the scrutiny rule, the courts should adopt a more flexible means of analyzing child evidence. Aptly put, it will be in line and the spirit of the doctrine of presumed competence for every witness.
The issue of children delinquents is another pressing issue which has bedeviled the court system. While the primary role of the courts should be reinforcing the government’s efforts to protect those deemed as vulnerable in the society, the court system seems to derail the government endeavors. While a child witness’ testimony is regarded too vulnerable to be directly admitted as evidence, the courts have sometimes found themselves on the receiving end for failing to adequately protect child criminals. There are claims that some children have often been tried in adult courts and even placed together with older criminals (Children Rights, 2014). This is an outright abuse of the children rights although manifested in an advanced degree.
Child care protection centers play a vital role when it comes to protecting children rights. However, the disparity in ascertaining what can be reported and what cannot meet the threshold for their action seems to be an impediment in their work. This is largely attributable to the fact that each state has a mandate to promulgate the applicable threshold within its jurisdiction. Given the sensitivity of the matter, the courts should step in and advocate for harmonization of the laws in respect of child abuse. This will go far in ensuring a common objective in the fight against child abuse.
While it is the duty of law enforcers like courts to protect the children, the courts cannot effectively undertake this task on their own. The courts largely depend on reports by the care providers to come to conclusions on matters pertaining child abuse. Although the United States’ court system does not allow the court officers to be actively involved in the investigations there needs to be a different approach. As soon as a case of such nature is reported and brought to the attention of the court, the court can take it upon itself to constitute an ad hoc committee to look into the matter. This will more likely than not provide the court with some inside information and insight into the matter which may subsequently vest on it a better perspective.
Efforts to effectively address child abuse and neglect must be properly informed by a thorough understanding of the complexity and integration of culture and social stratification. While deciding on the best interest of the child, the courts must be alive to the prevailing and ever increasing heterogeneity of families units in the United States. The courts should also take it upon themselves to carry out emancipation campaigns on the applicable laws to this issue. Where the society is fully equipped with the laws and their applicability in this sector, the legal backing may ultimately result into a reduction in child abuse cases due to the imposed sanctions.
As earlier pointed out, child abuse prevention and counter mechanism involve a multiplicity of agents working together to achieve the core objective. However, most of the agents have stringent measures which the victims have to undergo before finally getting their justice. The system would be more effective where the various agencies get streamlined and harmonized to ensure the victims are not subjected to further anguish in their endeavor to secure justice.
Another contributing factor to this menace is the society’s outright display and disregard for research touching on children rights. There is little investment both economically and education wise when it comes to such researches. Either the society is ignorantly satisfied with the little information it has or it simply is disinterested in the matter. For example, there are parents who are not aware that corporal punishment can no longer be meted out to the children. They deem state interference as an unnecessary party whose objective is to promote any bad behavior exhibited by their children. A perfect illustration of this phenomenon is the rising figure of parents accused of maltreating their children.
The glaring inter-agency dependence when it comes to the protection of the rights of a child could be both a blessing and a nightmare at the same time. While other departments may actively take part in this fight, the ultimate safeguard lies with the court system. It is therefore incumbent upon the courts to ensure that a child’s best interest prevails at all material times.