child maltreatment

The Journal of Legal Medicine, 26:311–337 Copyright C© 2005 Taylor & Francis 0194-7648/05 $12.00 + .00 DOI: 10.1080/01947640500218315

REDEFINING THE EMOTIONAL AND PSYCHOLOGICAL ABUSE AND MALTREATMENT OF CHILDREN LEGAL IMPLICATIONS

Sana Loue, J.D., Ph.D., M.P.H.*

INTRODUCTION

Emotional abuse, a label often used synonymously with the terms emo- tional maltreatment,1 psychological battering,2 psychological abuse,3 and soul murder,4 has been called “the most elusive and damaging of all types of mal- treatment for a child”5 and represents “the core issue and most destructive factor across all types of child abuse and neglect.”6 The very elusiveness, however, of the identification of emotional and psychological abuse casts doubt on the accuracy of available data relating to its occurrence, and it is likely that the incidence and prevalence of such abuse are subject to signifi- cant underreporting.7 Nevertheless, it appears from numerous studies that the emotional abuse of children has been and continues to be a growing problem.

* Associate Professor, Department of Epidemiology and Biostatistics, Case Western Reserve University School of Medicine. Dr. Loue holds secondary appointments in the Department of Bioethics, the Center for International Health, and the Mandel School of Applied Social Sciences. She was the 2003 Dr. Arthur Grayson Distinguished Visiting Professor of Law and Medicine at Southern Illinois University School of Law. Dr. Loue gratefully acknowledges the support provided for the research for this article by the Garwin Family Foundation. Address correspondence to Dr. Loue at Case Western Reserve University, School of Medicine, Department of Epidemiology and Biostatistics, 10900 Euclid Avenue, Cleveland, Ohio 44106-4945 or via e-mail at [email protected].

1 JAMES GARBARINO & ANNE C. GARBARINO, EMOTIONAL MALTREATMENT OF CHILDREN 2 n.∗ (1986). 2 See JAMES GARBARINO ET AL., THE PSYCHOLOGICALLY BATTERED CHILD (1986). 3 MARLA R. BRASSARD ET AL., PSYCHOLOGICAL MALTREATMENT OF CHILDREN AND YOUTH (1987). 4 LEONARD SHENGOLD, SOUL MURDER: THE EFFECTS OF CHILDHOOD ABUSE AND DEPRIVATION (1989). 5 Peggy S. Pearl, Psychological Abuse, in RECOGNITION OF CHILD ABUSE FOR THE MANDATED REPORTER 119,

120 (James A. Monteleone ed., 1996). 6 Id. 7 Several scales have been developed that attempt to assess emotional abuse during childhood. These

include the revised version of the Child Abuse and Trauma Scale, the Psychological Maltreatment Scale, and the Exposure to Abusive and Supportive Environments Parenting Inventory. For a description of these scales, see Angela Kent & Glenn Walker, The Impact of Childhood Emotional Abuse: An Extension of the Child Abuse and Trauma Scale, 22 CHILD ABUSE & NEGLECT 393 (1998); Karen B. Nicholas & Stephen L. Bieber, Parental Abusive Versus Supportive Behaviors and Their Relation to Hostility and Aggression in Young Adults, 20 CHILD ABUSE & NEGLECT 1195 (1996); John Briere & Marsha Runtz,

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A series of national incidence studies examined rates of emotional abuse and emotional neglect of children. In these studies, emotional abuse referred to close confinement, verbal or emotional assault, and other or unknown abuse.8

Emotional neglect was said to consist of inadequate nurturance or affection, chronic or extreme spouse abuse, permitted drug or alcohol abuse, permitted other maladaptive behavior, refusal of psychological care, a delay or failure of psychological care, and other inattention to emotional needs.9 Two different standards were used to assess the occurrence of abuse or neglect. The harm standard required that the child have suffered demonstrable harm; the endan- germent standard additionally encompassed children not yet harmed by the emotional abuse or neglect, but who were in danger of harm as a result of their maltreatment.10

The first of these studies, published in 1981, reported that 2.1 per 1,000 children had suffered emotional abuse.11 The second national incidence study, published in 1988, noted an increase in rate to 2.8 per 1,000 children,12 while the third study detected an increase in the rate of emotional abuse to 3.0 per 1,000.13 Application of the endangerment standard indicated a 183% increase in emotional abuse14 and a 188% increase in emotional neglect between the second and the third studies.15 Reliance on the narrower harm standard demon- strated an increase of 333% in the incidence of emotional neglect between the second and third studies.16

Daro and Gelles report that 45% of parents in a 1992 nationally rep- resentative sample of 1,250 parents reported insulting or swearing at their children.17 A 1995 study by the National Center on Child Abuse and Neglect found a total of 536,400 cases of emotional abuse of children had been re- ported nationally during 1993.18 In fact, as much as 10% to 20% of toddlers and

Multivariate Correlates of Childhood Psychological and Physical Maltreatment Among University Women, 12 CHILD ABUSE & NEGLECT 331 (1988).

8 Linda K. Jellen et al., Child Emotional Maltreatment: A 2-Year Study of US Army Cases, 25 CHILD ABUSE & NEGLECT 623 (2001).

9 Id. 10 ANDREA J. SEDLAK & DIANE D. BROADHURST, U.S. DEP’T HEALTH AND HUMAN SERVS., THIRD NATIONAL

INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996). 11 NAT’L CTR. ON CHILD ABUSE & NEGLECT, U.S. DEP’T OF HEALTH & HUMAN SERVS., PUB. NO. 81-30325,

STUDY FINDINGS: NATIONAL STUDY OF THE INCIDENCE AND SEVERITY OF CHILD ABUSE AND NEGLECT 18 & tbl. 4-1 (1981).

12 NAT’L CTR. ON CHILD ABUSE & NEGLECT, U.S. DEP’T OF HEALTH & HUMAN SERVS., STUDY FINDINGS: STUDY OF NATIONAL INCIDENCE AND PREVALENCE OF CHILD ABUSE AND NEGLECT: 1988, at 3-6, tbl. 3-3 (1988).

13 SEDLAK & BROADHURST, supra note 10, at 3-8. 14 Id. at 3-22. 15 Id. at 3-24. 16 Id. at 3-20. 17 Deborah Daro & Richard J. Gelles, Public Attitudes with Respect to Child Abuse Prevention, 7 J.

INTERPERSONAL VIOLENCE 517, 521 (1992). 18 RICHARD G. GELLES, INTIMATE VIOLENCE IN FAMILIES 46 (3d ed. 1997) (citing NATIONAL CENTER ON CHILD

ABUSE AND NEGLECT, PRELIMINARY FINDING REGARDING CHILD ABUSE AND NEGLECT (Sept. 18, 1995)).

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50% of teenagers experience severe emotional aggression, including cursing, threats of being sent away, and being called dumb or other names.19 Vissing and colleagues found from their analysis of the second National Family Vi- olence Survey that approximately 63% of the parents reported using some form of psychological abuse in their interactions with their children during the previous year.20 In 1999, approximately 4% of all reported abuse cases nationally consisted of psychological abuse.21

Definitional issues further compound the difficulties associated with the identification, documentation, prosecution, and prevention of emotional and psychological abuse. This article examines current definitions of emotional and psychological abuse within the context of both treatment and prevention efforts and current state statutes. The hypothesized causes of its occurrence are explored. An analysis of various fact patterns within this framework leads to the inevitable conclusion that a more expansive understanding of emotional and psychological abuse within our current legal framework is critical to the detection of this abuse and the protection of children.

I. CURRENT UNDERSTANDINGS

A. The Diagnosis of Emotional and Psychological Abuse

Within the research and caring professions, the emotional abuse of chil- dren has been variously defined as: “persistent emotional ill-treatment of a

19 Murray A. Straus & Carolyn J. Field, Psychological Aggression by American Parents: National Data on Prevalence, Chronicity, and Severity, 65 J. MARRIAGE & FAM. 795, 795 (2003).

20 Yvonne M. Vissing et al., Verbal Aggression by Parents and Psychosocial Problems of Children, 15 CHILD ABUSE & NEGLECT 223 (1991).

21 DAVID WEIS & DEBORAH DARO, CURRENT TRENDS IN CHILD ABUSE REPORTING AND FATALITIES: THE RESULTS OF THE 1994 ANNUAL FIFTY STATE SURVEY (1995). For data from other studies relating to the incidence and/or prevalence of psychological abuse, see Amy B. Gross & Harold R. Keller, Long-Term Consequences of Childhood Physical and Psychological Maltreatment, 18 AGGRESSIVE BEHAV. 171 (1992); Tamerra P. Moeller et al., The Combined Effects of Physical, Sexual, and Emotional Abuse During Childhood: Long-Term Health Consequences for Women, 17 CHILD ABUSE & NEGLECT 623 (1993); David Hemenway et al., Child-Rearing Violence, 18 CHILD ABUSE & NEGLECT 1011 (1994). Rates of emotional abuse appear to be increasing in the United Kingdom as well. Danya Glaser & Vivien Prior, Is the Term Child Protection Applicable to Emotional Abuse?, 6 CHILD ABUSE REV. 315 (1997).

Although this article focuses on the emotional and psychological maltreatment of children in the United States, it should be noted that such abuse occurs across cultures and geographical areas and demands our attention. For details on psychological abuse in other countries, see, for example, Celia Doyle, Emotional Abuse of Children: Issues for Intervention, 6 CHILD ABUSE REV. 330 (1997) (United Kingdom); Else Christensen, The Prevalence and Nature of Abuse and Neglect in Children Under Four: A National Survey, 8 CHILD ABUSE REV. 109 (1999) (Denmark); Vivian Khamis, Child Psychological Maltreatment in Palestinian Families, 24 CHILD ABUSE & NEGLECT 1047 (2000) (Palestine); S.N. Madu & K. Peltzer, Correlates for Psychological, Physical, Emotional and Ritualistic Forms of Child Abuse Among High School Students in the Northern Province, South Africa, 10 S. AFRICAN J. CHILD ADOL. MENTAL HEALTH 80 (1998).

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child such as to cause severe and persistent adverse effects on the child’s emotional development;”22 “damage to the child’s psychological develop- ment and emerging personal identity, primarily caused by parents’ or primary caretakers’ ignorance, immaturity, defended lifestyle, and conscious or un- conscious aggression toward the child;”23 “hostility, persistent coldness or rejection which impairs . . . the child’s normal physical and/or emotional de- velopment or leads to behavioral disturbances;”24 “the severe adverse effect on the behaviour and emotional development of a child caused by persistent or severe emotional ill-treatment or rejection. All abuse involves some form of emotional ill-treatment or rejection; this category should be used where it is the main or sole form of abuse;”25 and “the sustained, repetitive, inappropriate emotional response to the child’s experience of emotion and its accompanying expressive behavior. Emotional abuse repeatedly inflicts emotional pain upon the child (e.g. fear, humiliation, distress, despair, etc.).”26

Overlapping definitions render it difficult to distinguish between emo- tional and psychological abuse. Like definitions of emotional abuse, those of psychological abuse emphasize the repetitive nature of the behavior and the impact of that behavior on the child. Consider, for example, the following definition:

Psychological abuse is the sustained, repetitive, inappropriate behavior which dam- ages or substantially reduces the creative and developmental potential of crucially important mental faculties and mental processes of a child; these faculties and pro- cesses include intelligence, memory, recognition, perception, attention, imagination, and moral development. Examples of such sustained, repetitive, and pervasive be- havior may be domestic violence, desertion, unpredictability, lies, deception, ex- ploitation, and various other forms of abuse (particularly sexual abuse, violence, and neglect).27

Table 1 provides additional definitions of emotional and psychological abuse that have been and continue to be utilized in the professional literature, further underscoring the difficulty that attends the diagnosis of the behavior and its consequences. If it cannot be defined, how can it be addressed?

22 DEPART. OF HEALTH ET AL., WORKING TOGETHER TO SAFEGUARD CHILDREN 5-6 (Lon. 1999), at www.dh. gov.uk/assethoot/04/07/58/24/04075824.pdf.

23 PsychAlive!, Glossary, Emotional Child Abuse, http://www.psychalive.com/index.php/fuseaction/ resource.glossary/glossary.html (last visited Apr. 6, 2005).

24 STEERING COMM. FOR REV. COMMONWEALTH/ST. SERV. PROVISION, AUSTL., EFFICIENCY MEASURES FOR CHILD PROTECTION AND SUPPORT PATHWAYS: REFORMS IN GOVERNMENT SERVICE PROVISION 23 (Vict. 2003), at http://www.pc.gov.au/gsp/reports/reforms/emcpsp/emcpsp.pdf (last visited Apr. 6, 2005).

25 SUSAN J. CREIGHTON, Introduction to CHILD ABUSE TRENDS IN ENGLAND AND WALES, 1988-1990: AN OVERVIEW FROM 1973-1990 7 (1992).

26 Kieran P. O’Hagan, Emotional and Psychological Abuse: Problems of Definition, 19 CHILD ABUSE & NEGLECT 449, 456 (1995) (emphasis omitted).

27 Id. at 458 (emphasis omitted).

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TABLE 1. Definitions of Emotional and Psychological Abuse

Reference Definition

Glaser, 200228 Emotional abuse and neglect describes a relationship between the parent and the child (rather than an event or series of repeated events occurring within the parent-child relationship); the interactions of concern pervade or characterize the relationship (at the time); the interactions are actually or potentially harmful by causing impairment to the child’s psychological/emotional health and development; Emotional abuse and neglect includes omission as well as commission; and Emotional abuse and neglect requires no physical contact. Emotional unavailability, unresponsiveness and neglect; Negative attributions and misattributions to the child; Developmentally inappropriate or inconsistent interactions with the child; Failure to recognize or acknowledge the child’s individuality and psychological boundary; Failing to promote the child’s social adaptation.

Hart, Germain, & Brassard, 198329

Emotional abuse of children, as the sole or main form, consists of acts of omission and commission which are judged on the basis of a combination of community standards and professional expertise to be psychologically damaging. Such acts are committed by parent figures who are in a position of differential power that renders the child vulnerable. Such acts damage immediately and ultimately the behavioral, cognitive, affective, social and physiological functioning of the child.

Christensen, 199930 Active emotional abuse: The adult consistently exposes the child to verbal insults, confinement, threats, and rejections. Passive emotional neglect: The child is subjected to neglect or understimulation due to parent’s inability to provide security, care, and love, for example, because of mental illness, substance abuse (alcohol, medicine, narcotics), social problems, etc.

American Professional Society on the Abuse of Children, 199531

Psychological maltreatment means a repeated pattern of caregiver behavior or extreme incident(s) that convey to children that they are worthless, flawed, unloved, unwanted, endangered, or of value only in meeting another’s needs.

(Continued on next page)

A comparison of these definitions underscores, as well, what is often, but not always, ignored in these definitional debates: that emotional/psychological abuse and neglect refer to a relationship, rather than an event or series of events.32 That relationship “may be actually or potentially harmful to the

28 Danya Glaser, Emotional Abuse and Neglect (Psychological Maltreatment): A Conceptual Framework, 26 CHILD ABUSE & NEGLECT 697, 702-04 (2002).

29 Doyle, supra note 21 (citation omitted). 30 Christensen, supra note 21, at 111. 31 AM. PROF’L SOC’Y ON THE ABUSE OF CHILDREN, PSYCHOLOGICAL EVALUATION OF SUSPECTED PSYCHOLOGICAL

MALTREATMENT IN CHILDREN AND ADOLESCENTS, PRACTICE GUIDELINES (1995), quoted in Glaser, supra note 28, at 702.

32 Steven W. Kairys et al., The Psychological Maltreatment of Children—Technical Report, 109 PEDIATRICS 68 (2002) (citations omitted).

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TABLE 1. Definitions of Emotional and Psychological Abuse (Continued)

Reference Definition

American Academy of Pediatrics, 200033

Psychological maltreatment is a repeated pattern of damaging interactions between parent(s) and child that becomes typical of the relationship. In some situations, the pattern is chronic and pervasive; in others, the pattern occurs only when triggered by alcohol or other potentiating factors. Occasionally, a very painful singular incident, such as an unusually contentious divorce, can initiate psychological maltreatment. Psychological maltreatment of children occurs when a person conveys to a child that he or she is worthless, flawed, unloved, unwanted, endangered, or only of value in meeting another’s needs. The perpetrator may spurn, terrorize, isolate, or ignore or impair the child’s socialization.

child. The abuse threshold is reached when the continuing viability of the parent-child relationship is regarded as unacceptable without some attempted intervention.”34 The point at which that threshold is established is somewhat arbitrary,35 accounting, at least in part, for the general unwillingness of ob- servers to impose their judgment on witnessed behavior. However, several studies indicate that such concerns may be unfounded in view of apparent agreement in perceptions among professionals and laypersons as to what be- haviors constitute emotional abuse.36 Additionally, unlike sexual and physical abuse, which although hidden frequently prompt a response by law enforce- ment authorities and/or protective services once they are discovered, emo- tional abuse frequently is visible but rarely provokes any attempt to insulate the victim.37 Moreover, whereas acts of sexual abuse often are committed by

33 See Glaser & Prior, supra note 21, at 315. 34 See id. 35 See, e.g., Robyn A. McGee & David A. Wolfe, Psychological Maltreatment: Toward an Operational

Definition, 3 DEV. & PSYCHOPATH. 3 (1991) (discussing lack of comparability among definitions of psychological maltreatment).

36 See Bruce B. Burnett, The Psychological Abuse of Latency Age Children: A Survey, 17 CHILD ABUSE & NEGLECT 441, 446 (1993) (381 laypersons and 452 social work professionals identified the same nine vignettes as representing psychological abuse); Charles Schaefer, Defining Verbal Abuse of Children: A Survey, 80 PSYCHOL. REP. 626, 626 (1997) (80% agreement between parents and mental health professionals about the definition of 10 categories of verbal behavior as being “never acceptable”); Jill E. Korbin et al., Neighborhood Views on the Definition and Etiology of Child Maltreatment, 24 CHILD ABUSE & NEGLECT 1509, 1511, 1519 (2000) (42% of respondents of two different United States ethnocultural groups identified emotional and verbal maltreatment as forms of child abuse).

37 Glaser, supra note 26, at 699; see also Leah H. Behl et al., Trends in Child Maltreatment Literature, 27 CHILD ABUSE & NEGLECT 215 (2003) (level of attention to psychological abuse of children remains static in professional literature).

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a known individual other than the caregiver, emotional abuse is perpetrated by the very individual responsible for the care and nurturance of the child.

There exists a tension between those definitions focusing primarily on the resulting harm to the child, such as causing impairment, and those that focus on the behavior of the abuser, such as exposing the child to verbal insults. Still other definitions focus on the child’s response to the abuser’s behavior. As an example, “terrorizing” refers to the response of the child, rather than specific behavior on the part of the abuser. Many definitions of emotional and psychological abuse are silent with respect to the intent of the caregiver to effect harm or injury. However, at least some definitions implicitly require a specific intent as, for instance, in the following definition of psychological abuse: “a concerted attack by an adult on a child’s development of self and social competence, a pattern of psychically destructive behavior.”38

Although a number of subtypes of psychological abuse have been iden- tified, disagreement exists with respect to the classification schema and the conduct encompassed within each category.39 For instance, one author classi- fies psychological abuse into seven subcategories of behavior towards a child: ignoring; rejecting; isolating; terrorizing; corrupting; verbally assaulting; and overpressuring.40 This delineation omits a number of behaviors that have been considered subtypes of psychological abuse by others, including missocial- ization, degradation, and the imposition of close confinement.41 Because this analysis focuses on our operationalization of emotional and psychological abuse within the legal context, and argues for its expansion, an understanding of the behaviors associated with each category is critical.

Ignoring the child is said to encompass a failure to provide necessary stimulation, be responsive to the child, and validate the child’s self-worth.42

Rejecting refers to the rejection of the child’s needs, value, and request for adult attention and nurturance. Isolation encompasses the removal of the child from the family or community and denial of normal human contact. Corrupt- ing the child is synonymous with the encouragement and reinforcement of

38 GARBARINO ET AL., supra note 2, at 8. 39 Anne McGillivray, Reconstructing Child Abuse: Western Definition and Non-Western Experience, in

THE IDEOLOGIES OF CHILDREN’S RIGHTS 213 (Michael D.A. Freeman & Philip E. Veerman eds. 1992) (arguing child abuse is a social construct that “is shaped by, and used as a scapegoat for, other social problems” such as poverty and racism).

40 Pearl, supra note 5, at 121. 41 See THELMA FALK BAILY & WALTER HAMPTON BAILY, OPERATIONAL DEFINITIONS OF CHILD MALTREATMENT:

FINAL REPORT 8 (1986); Stuart N. Hart & Marla R. Brassard, Psychological Maltreatment: Progress Achieved, 3 DEV. & PSYCHOPATH. 61, 61-62 (1991) (proposing five types of psychological maltreatment: spurring (verbal rejection and degradation), terrorizing, isolating (locked in closet or room), exploiting, and denying emotional responsiveness); Stuart N. Hart et al., The Challenge: To Better Understand and Combat Psychological Maltreatment of Children and Youth, in PSYCHOLOGICAL MALTREATMENT OF CHILDREN AND YOUTH 3, 7 (Marla R. Brassard et al. eds., 1987).

42 Pearl, supra note 5, at 121.

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destructive, antisocial behavior, with a resulting impairment in the child’s social development that prevents interaction in normal social environments. Verbal assaults include name calling, harsh threats, and the use of sarcasm in a humiliating manner. Overpressuring refers to the use of consistent pressure to demand achievement in various domains of development, such as academics or sports, in a manner that subverts a child’s self-esteem.43

Numerous adverse consequences have been found to be associated with psychological abuse. These consequences include: interpersonal maladjust- ment, such as difficulties with peers and low social competence; intellectual deficits, such as those in cognitive ability, problem solving, and creativity; and affective-behavioral problems, including aggression, self-abusive behav- ior, anxiety, anger, and dependency.44 A history of being preferentially rejected by birth parents has been found to be associated with poorer outcome during the first year of placement with another family.45 Psychological abuse in child- hood has been associated with chronic emotional inhibition in adulthood, with resulting depression and anxiety symptoms.46 In addition, emotional with- drawal by a caregiver and caregiver failure to provide needed protection are predictive of victimization as an adult.47

Research indicates that non-Hispanic white children may be at greater risk of psychological abuse as compared with African-American or Latino children.48 Older children have been found to be at increased risk of psy- chological abuse.49 Although at least one study has found boys more likely to experience childhood psychological abuse than girls,50 age and gender to- gether may be associated with psychological abuse, resulting in an increased

43 Id. 44 See Vissing et al., supra note 20, at 230-31; Angelika H. Claussen & Patricia M. Crittenden, Physical and

Psychological Maltreatment: Relations Among Types of Maltreatment, 15 CHILD ABUSE & NEGLECT 5 (1991); Byron Egeland, From Data to Definition, 3 DEV. & PSYCHOPATH. 37 (1991); Marla R. Brassard et al., Psychological and Emotional Abuse of Children, in CASE STUDIES OF FAMILY VIOLENCE 293 (Robert T. Ammerman & Michel Hersen eds., 2d ed. 2000). For an excellent discussion of the effects of emotional abuse and neglect at various stages of development, see Kathryn L. Hildyard & David A. Wolfe, Child Neglect: Developmental Issues and Outcomes, 26 CHILD ABUSE & NEGLECT 679 (2002).

45 Cherilyn Dance et al., Emotional Abuse in Early Childhood: Relationships with Progress in Subsequent Family Placement, 43 J. CHILD PSYCHOL. & PSYCHIATRY 395, 400-01 (2002).

46 Elizabeth D. Krause et al., Childhood Emotional Invalidation and Adult Psychological Distress: The Mediating Role of Emotional Inhibition, 27 CHILD ABUSE & NEGLECT 199 (2003).

47 Kathleen Kendall-Tackett, The Health Effects of Childhood Abuse: Four Pathways by Which Abuse Can Influence Health, 26 CHILD ABUSE & NEGLECT 715, 720 (2002) (citing M.C. Zanarini et al., Violence in the Lives of Adult Borderline Patients, 187 J. NERVOUS & MENTAL DISEASE 65, 65-71 (1999).

48 AM. ASS’N FOR PROTECTING CHILDREN, HIGHLIGHTS OF OFFICIAL CHILD NEGLECT AND ABUSE REPORTING, 1986, at 28 tbl. 10.1 (1988).

49 Vissing et al., supra note 20, at 235; Andrea J. Sedlak, Risk Factors for the Occurrence of Child Abuse and Neglect, 1 J. AGGRESSION, MALTREATMENT, TRAUMA 149, 150 (1997).

50 Vissing et al., supra note 20.

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risk among females as compared to their male counterparts.51 Homosexual, lesbian, and bisexual youth are at particular risk of emotional abuse and ne- glect by their parents.52

The parents of psychologically abused children are more likely to be non-Hispanic whites, to have increased levels of stress, marital difficulties, and drug-associated problems, and to lack both personal and community sup- port networks.53 Various other parent characteristics and experiences may also be associated with the psychological abuse of children: aggression, hostility, neuroticism, relationships with fathers perceived as less caring, and being yelled at daily as a child.54 Larger family size, a lack of money for essen- tials, and the death of a child in the family also have been implicated as risk factors.55

Despite the apparent ability to discern risk factors for the psychological and emotional abuse of children, their identification is further complicated by the need to distinguish maltreatment from poor parenting. A number of researchers use the term “psychological maltreatment” to refer to a consistent interactional style, rather than isolated incidents, and reserve its use for only the most severe forms of psychologically damaging interactions.56

B. Theories of Causation

Various theories have been advanced in an attempt to explain the cause of psychological maltreatment, as emotional and psychological abuse and neglect will be referred to hereinafter. Four predominant theories are the hu- man needs theory, psychosocial stage theory, attachment theory, and parental acceptance-rejection theory.

1. Human Needs Theory

Human needs theory posits that each human being has certain basic needs that require fulfillment as a prerequisite to healthy development. The most ba- sic of these needs are physiological, such as food and clothing, and psycholog- ical, such as safety, love, a sense of belonging, and esteem.57 Self-actualization

51 DEP’T HEALTH AND HUMAN SERVS., CHILD MALTREATMENT 1992: REPORTS FROM THE STATES TO THE NATIONAL CENTER ON CHILD ABUSE AND NEGLECT (1994).

52 Heather L. Corliss et al., Reports of Parental Maltreatment During Childhood in a United States Population-Based Survey of Homosexual, Bisexual, and Heterosexual Adults, 26 CHILD ABUSE & NE- GLECT 1165 (2002).

53 Anne Hickox & James R.G. Furnell, Psychosocial and Background Factors in Emotional Abuse of Children, 15 CHILD CARE, HEALTH & DEV. 227 (1989).

54 Danielle Black et al., Risk Factors for Child Psychological Abuse, 6 AGGRESSION & VIOLENT BEHAV. 189, 198-99 (2001).

55 Doyle, supra note 21, at 335 tbl. 1. 56 NELSON J. BINGGELI ET AL., PSYCHOLOGICAL MALTREATMENT OF CHILDREN: THE APSAC STUDY GUIDES 4, 8

(2001) (citations omitted). 57 ABRAHAM H. MASLOW, A THEORY OF HUMAN MOTIVATION (1970).

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requires, in addition, the fulfillment of growth needs for aesthetic and cognitive knowledge. These higher level needs cannot be fulfilled without first fulfilling the lower level needs. Accordingly, if children’s needs for love and safety are not fulfilled, it is believed they will attempt to meet these needs in unhealthy ways. Psychological maltreatment constitutes a direct attack on the child’s basic needs, as well as both a direct and indirect attack on the growth needs.

2. Psychosocial Stage Theory

Psychosocial stage theory is based on the assumption that human devel- opment occurs in a series of stages; each stage is characterized by competency- specific tasks or resolving conflicts.58 The child’s degree of success or failure at each stage affects the likelihood of success at later stages of development. A child’s development passes through various time frames, including infancy, childhood, and adolescence. Erikson divides infancy into two stages, that of trust versus mistrust during ages zero to two years and autonomy versus, shame and doubt, manifested primarily during years two to four. During child- hood years five to seven, growth is marked by initiative versus guilt, while years eight to 12 emphasize industry versus inferiority. Adolescence is char- acterized primarily by identity versus identity confusion, during years 13 to 17.59 Psychological maltreatment adversely impacts a child’s ability to master the tasks of a particular developmental stage, resulting in his or her impaired ability to master the tasks of the subsequent developmental level.

3. Attachment Theory

Attachment theory posits that an infant is essentially pre-programmed with a set of behaviors designed to elicit an appropriate response from a caregiver. At first, these behaviors are not directed to a specific individual. However, during the first year of life the infant begins to form attachments to one or more individuals. The quality of the attachment developed with the primary caregiver during this stage of life may be critical to the child’s ability to form later attachments. Ideally, the child experiences a secure attachment with his or her caregiver that assists the child in developing a sense of trust and autonomy. In addition, the child’s interaction with his or her caregiver and other individuals will help the child form an internal working model relating to his or her role and those of others.60

The psychological care received by an infant is key to the child’s devel- opment of a particular attachment pattern. Four patterns have been identified:

58 David Rapaport, Introduction: A Historical Survey of Psychoanalytic Ego Psychology to ERIK H. ERIKSON, PART 1: IDENTITY AND THE LIFE CYCLE, in PSYCHOLOGICAL ISSUES 2, 14-15 (George S. Klein ed., 1959).

59 Id. 60 Patricia M. Crittenden & Mary D.S. Ainsworth, Child Maltreatment and Attachment Theory, in CHILD

MALTREATMENT: THEORY AND RESEARCH ON THE CAUSES AND CONSEQUENCES OF CHILD ABUSE AND NEGLECT 432, 433-35 (Dante Cicchetti & Vicki Carlson eds., 1989).

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secure attachment, ambivalent-resistant attachment, avoidant attachment, and disorganized-disoriented attachment. Children who are securely attached and who have had good psychological care miss their mothers when they are gone and respond positively upon their return. They are able to explore and play under low stress conditions. In contrast, infants who are ambivalent-resistant often demonstrate a higher level of concern or distress when their mothers leave, but are ambivalent towards the mothers upon their return. The psy- chological care received by these infants from their mothers is thought to be characterized by inconsistency, withdrawal, and lack of involvement.

Avoidant infants appear to ignore their mothers when they return after having departed and do not display distress or anger at them. Mothers of avoidant infants are characterized by an insensitivity to their infants’ needs and alternatively reject, neglect, and interfere with their infants. Disorganized- disoriented infants demonstrate behaviors of the previous three attachment patterns. Their mothers may have acted consistently towards them for an extended period of time, followed by a prolonged period of inconsistency.61

4. Parental Acceptance-Rejection Theory

According to this theory, parental rejection occurs through parental hos- tility and aggression or parental indifference and neglect; either scenario con- stitutes emotional abuse. Acceptance refers to parental warmth and affection.62

Children who are rejected are believed to be more likely: to be hostile, ag- gressive, or passive-aggressive; to have increased difficulty managing such emotions; to be dependent or “defensively independent”; to have an impaired sense of self-esteem and personal adequacy; to be emotionally unstable and emotionally unresponsive; and to have a negative worldview.63

II. LEGAL JUDGMENTS

The lack of certainty that is evident across professional definitions of emotional and psychological abuse and neglect is similarly evident in the conceptual definitions of such abuse utilized in the legal context.64 Consider the following examples.

61 Id. 62 Ronald P. Rohner & Evelyn C. Rohner, Antecedents and Consequences of Parental Rejection: A Theory

of Emotional Abuse, 4 CHILD ABUSE & NEGLECT 189, 190 (1980). 63 Id. at 192. 64 For a discussion of the emotional and psychological abuse in an historical context, see J. Robert Shull,

Emotional and Psychological Child Abuse: Notes on Discourse, History, and Change, 51 STAN. L. REV. 1665 (1999). Judith G. McMullen, The Inherent Limitations of After-the-Fact Statutes Dealing with the Emotional and Sexual Maltreatment of Children, 41 DRAKE L. REV. 483 (1992) (classifying the treatment of emotional and psychological abuse within the context of state statutes into three categories: (1) statutes that do not describe emotional or psychological abuse; (2) statutes that refer to emotional or psychological abuse but provide no guidance as to the meaning of the term and how it should be applied; and (3) statutes that not only refer to emotional or psychological abuse, but also provide a

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Utah defines “abuse” to include “actual or threatened nonaccidental physical or mental harm.”65 “Mental harm,” however, remains undefined. “Chronic emotional abuse” is defined as “repeated or patterned emotional abuse,” while “severe emotional abuse” refers to “emotional abuse that causes or threatens to cause serious harm to a minor.”66 Nowhere does the statute ac- tually define the critical term “mental harm.” Alabama’s statute similarly fails to provide adequate guidance for mandatory reporters and those charged with enforcement and protective responsibilities. This statute defines “abuse” as “[h]arm or threatened harm to a child’s health or welfare. Harm or threatened harm to a child’s health or welfare can occur through nonaccidental physical or mental injury, sexual abuse, or attempted sexual abuse or sexual exploitation or attempted sexual exploitation.”67 Although the statute provides examples of acts and behaviors that could constitute sexual abuse, sexual exploitation, and neglect, no such guidance is offered with respect to mental injury.

In contrast, Florida provides significant guidance to those attempting to discern whether emotional or psychological abuse is occurring. “Abuse” refers to “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physi- cal, mental, or emotional health to be significantly impaired.”68 In evaluating whether emotional injury has occurred, various factors are to be considered, including the age of the child, whether the child has a history of injuries, the location of any physical injury on the child’s body, whether there are multiple injuries, and the nature of the trauma.69 In addition, “willful” is taken to mean that the action was intended, regardless of whether the injury was intended. The statute recognizes, too, that emotional injury may be a consequence of physical injury by specifically prohibiting “inappropriate or excessively harsh disciplinary action that is likely to result in . . . mental injury . . . or emotional injury.”70

It appears from a review of existing case law and newspaper accounts of abuse that relatively few children are removed from their homes and relatively few adults are prosecuted for the emotional abuse of or injury to children. This relative inattention may be a function of various factors including, but not limited to: the relatively large numbers of cases of physical and sexual abuse that demand immediate attention because of the gravity and extent

standard or guide for an assessment of its existence); see also G. Steven Neeley, The Psychological and Emotional Abuse of Children: Suing Parents in Tort for the Infliction of Emotional Distress, 27 N. KY. L. REV. 689, 699-700 (2000).

65 UTAH CODE ANN. § 62A-4a-101(1)(a) (2000 & Supp. 2004). 66 Id. §§ 62A-4a-101(8), (25). 67 ALA. CODE § 26-14-1 (1992 & Supp. 2004). 68 FLA. STAT. ANN. § 39.01(2) (West 2003). 69 Id. § 39.01(30)(a). 70 Id. § 39.01(30)(a)(4).

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of harm being inflicted;71 the unwieldy numbers of cases assigned to each individual caseworker;72 the difficulty inherent in identifying emotional abuse, due to a lack of clarity both within the field and as reflected in the relevant legal standard; and the lack of sufficient adequate placement opportunities for children should they be removed from their families.73 The task of identifying and remedying emotional abuse is further complicated by the interaction of parenting style and children’s behavior; just as parental treatment will affect the child and his or her behavior, so, too, will a child’s characteristics affect the parents’ responses.74 Even in situations in which emotional abuse arguably may be present, there may be a proclivity on the part of law enforcement and protective personnel to refrain from any action, mindful of the wide latitude given to parents in raising their children.75

Nevertheless, various situations have arisen and continue to arise that demand a re-examination of our willingness to defer to parental judgment and to refrain from intervention. Three such situations are addressed below: (1) parentally-mandated treatment for children who are homosexual, lesbian, bisexual, or transgender; (2) parentally-imposed spiritual treatment for mental illness; and (3) parental oversight of children who engage in school violence.

III. PSYCHOLOGICAL MALTREATMENT OR CHILD PSYCHOPATHOLOGY

A. “Curing” Queer Kids

In the United States, homosexuality was long considered a form of men- tal illness requiring some form of treatment. It was formally recognized as such with its inclusion as a mental illness in the 1952 edition of the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association. Ho- mosexuality remained a legitimate medical diagnosis until its removal from the DSM-III in 1973.76

71 See, e.g., Nina Bernstein, Pattern Cited in Missed Signs of Child Abuse, N.Y. TIMES, July 22, 1999, at A1 (noting rising number of abuse and neglect-related deaths); Medical Examiner Says Girl Died in Homicide, N.Y. TIMES, July 30, 1988, at B8.

72 See, e.g., Nina Bernstein, 2 Deaths Narrow Focus on Child Welfare Agency’s Changes and Limits, N.Y. TIMES, Nov. 18, 2001, at A34; Somini Sengupta, City Reassigns Some Foster Care Caseworkers, N.Y. TIMES, Apr. 27, 2000, at B3.

73 Rachel L. Swarns, Panel Urges Greater Effort in Foster Care, N.Y. TIMES, Feb. 13, 1999, at B6. 74 See generally Dance et al., supra note 45, at 396. 75 The United States Supreme Court has noted: “Our jurisprudence historically has reflected Western

civilization concepts of the family as a unit with broad parental authority over minor children.” Parham v. J.R., 442 U.S. 584, 602 (1979). The Court has stated unequivocally that “[t]he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, 405 U.S. 645, 651 (1972).

76 Homosexuality has been viewed by a number of religions as a violation of the moral code, as well as a form of pathology and a criminal violation. For a discussion of homosexuality within the context

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Despite this seemingly enlightened action, same-sex attraction was once again pathologized through the inclusion in the 1980 DSM of ego-dystonic homosexuality. This diagnostic category was replaced in the 1987 edition of the DSM, the DSM-III-R, with “sexual disorder not otherwise specified,” which was said to encompass “persistent and marked distress about one’s sexual orientation.” This diagnosis remains in the current version of the DSM, the DSM-IV-TR.77 Attempts to eliminate this designation from the DSM failed, despite observations that “empirical data do not support the diagnosis, that it is inappropriate to label culturally induced homophobia as a mental disorder, that the diagnosis was rarely used clinically, and that few articles in the scientific literature use the concept.”78

The DSM-IV-TR also includes a diagnostic category of Gender Identity Disorder. A child may be diagnosed with this disorder if four of five criteria are present: (1) a repeatedly stated wish to be, or insistence that he or she is, of the opposite sex; (2) a preference for the clothing usually associated with the opposite biological sex; (3) a strong and persistent desire to play roles associated with the opposite sex or a persistent fantasy of being of the opposite sex; (4) a strong desire to participate in games usually associated with the opposite sex; and (5) a strong preference to play with children of the opposite sex.79 This diagnostic category, accordingly, has been labeled “tailor-made” for youth who appear to be gay, lesbian, or transgender.80

The occurrence of homosexuality has been attributed to a variety of causes. The psychoanalytic model, said to derive from Freud’s theories of innate bisexuality and sexual object choice, focuses on the presumed unsuc- cessful resolution of the Oedipal conflict, resulting in the development of an in- appropriate masculine or feminine gender identity and sexual object choice.81

of Christianity, see JOHN BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE & HOMOSEXUALITY: GAY PEOPLE IN WESTERN EUROPE FROM THE BEGINNING OF THE CHRISTIAN ERA TO THE FOURTEENTH CENTURY (1980). Until the recent Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003), same-sex sexual activity remained criminalized in a number of states.

77 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL-IV-TEXT REVISION (DSM-IV-TR) 582 (2000).

78 James Krajeski, Homosexuality and the Mental Health Professions: A Contemporary History, in TEXT- BOOK OF HOMOSEXUALITY AND MENTAL HEALTH 17, 26 (Robert P. Cabaj & Terry S. Stein eds., 1996) [hereinafter TEXTBOOK].

79 DSM-IV-TR, supra note 77, at 581. 80 Ingrid Ricks, Mind Games, THE ADVOCATE 38-40, 39 (Dec. 28, 1993). 81 For discussions of these models, see Robert P. Cabaj, Gay, Lesbian, and Bisexual Mental Health

Professionals and Their Colleagues, in TEXTBOOK, supra note 78, at 33; Judith M. Glassgold & Suzanne Iasenza, Introduction, in LESBIANS AND PSYCHOANALYSIS: REVOLUTIONS IN THEORY AND PRACTICE xxiii- xxx (Judith M. Glassgold & Suzanne Iasenza eds., 1995); NOREEN O’CONNOR & JOANNA RYAN, WILD DESIRES & MISTAKEN IDENTITIES: LESBIANISM & PSYCHOANALYSIS (1993). For discussions of psychoanalytic reformulations of same-sex orientations, see Raphella Sohier, Homosexual Mutuality: Variation on a Theme by Erik Erikson, 12 J. HOMOSEXUALITY 25 (Winter 1985/86); Richard A. Isay, Fathers and Their Homosexually Inclined Sons in Childhood, 42 PSYCHOAN. STUDY OF CHILD 275, 275-76 (1987); RICHARD A. ISAY, BEING HOMOSEXUAL: GAY MEN AND THEIR DEVELOPMENT 3-10 (1989).

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Most recently, various psychobiological theories have been proposed, includ- ing: the prenatal hormone theory, which hypothesizes that differing levels of prenatal hormones predispose individuals to diverse sexual inclinations;82

the genetic theory, which asserts that homosexuality is a heritable trait;83 and the neuroanatomic model, which suggests that homosexuality is a function of phenomena at the molecular level of synaptic and neuronal organization of the brain.84 Regardless of which theory is espoused, the explanation that is offered can be perceived as either a natural variation along a spectrum of normality or a pathological deviation from that which is considered normal. A myopic attention to the attribution of cause, however, results in the unfortu- nate obfuscation of the nature of sexual and gender identity: that gender roles and functions associated with maleness and femaleness, such as the selection of a sexual partner, vary over time and place, both on an individual basis and at a cultural and historical level.85

The disclosure of one’s homosexual orientation to parents, that is, the “coming out” process, is often fraught with trauma for both the child and the parents. Parental response to the disclosure often centers on a preoccupation that they will be socially stigmatized as having been inadequate parents or for having a deviant child, the attribution of blame to the other parent or to themselves for having produced a deviant child, or the loss of their own expec- tations for their child, such as the production of grandchildren. Many parents also may feel isolated or alienated from their child, who now claims an iden- tity that is foreign to them.86 Although some parents remain loving and open when confronted with the knowledge of their child’s sexual orientation, many others prohibit any overt acknowledgment of the child’s sexual orientation or become resentful or hostile.87

82 Charles Silverstein, History of Treatment, in TEXTBOOK, supra note 78, at 3, 10. 83 Chandler Burr, Homosexuality and Biology, ATL. MONTHLY, Mar. 1993, at 47, 62-65. 84 William Byne, Biology and Homosexuality: Implications of Neuroendocrinological and Neuroanatom-

ical Studies, in TEXTBOOK, supra note 78, at 137-40. 85 See Amanda Udis-Kessler, Bisexuality in an Essentialist World: Toward an Understanding of Bipho-

bia, in BISEXUALITY: A READER AND SOURCEBOOK 51 (Thomas Geller ed., 1990); see also Margaret Nichols, Lesbian Relationships: Implications for the Study of Sexuality and Gender, in HOMOSEXU- ALITY/HETEROSEXUALITY: CONCEPTS OF SEXUAL ORIENTATION 350 (David P. McWhirter et al. eds., 1990). For a discussion of constructionism, which argues that conceptualizations of sexual identity and ori- entation are tied to cultural, ethnic, social class, and political variables, see DAVID F. GREENBERG, THE CONSTRUCTION OF HOMOSEXUALITY (1988); SIOBHAN B. SOMERVILLE, QUEERING THE COLOR LINE: RACE AND THE INVENTION OF HOMOSEXUALITY IN AMERICAN CULTURE (2000).

86 Barbara E. Bernstein, Attitudes and Issues of Parents of Gay Men and Lesbians and Implications for Therapy, 1 J. GAY LESBIAN PSYCHOTHERAPY 37, 43 (1990).

87 ANN MULLER, PARENTS MATTER: PARENTS’ RELATIONSHIPS WITH LESBIAN DAUGHTERS AND GAY SONS (1987); CAROLYN W. GRIFFIN ET AL., BEYOND ACCEPTANCE: PARENTS OF LESBIANS AND GAYS TALK ABOUT THEIR EXPERIENCES (1986) (hypothesizing that parents pass through stages of coming out following the disclo- sure of their child’s same-sex orientation. These stages include: (1) finding out, consisting of emotional reactions, cutting off, conversion strategies, denial, and finally acknowledgment; (2) communicating with others, such as friends, counselors, gay or lesbian children, and other parents; (3) changing their

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The child’s coming out process, during which he or she is trying to as- sess and accept his or her own sexual identity, may provoke symptoms and behaviors that resemble those of clinically significant disorders. For instance, individuals who are paranoid and thought-disordered may experience perse- cutory delusions and ideas of reference about homosexuality, regardless of their sexual orientation.88 It may be difficult to distinguish between those in- dividuals and gay and lesbian youth who are experiencing a sexual identity crisis characterized by suspicion, fear, and hypervigilance, resulting in the ap- pearance of paranoia and thought-disorder. These latter responses, however, often result from actual experiences involving personal rejection. Yet a third possibility is that a homosexual or lesbian youth who is psychotic may de- compensate while experiencing a sexual identity crisis and become delusional and paranoid.89 The symptoms of a sexual identity crisis also may appear to mimic the symptoms of hypomania or a borderline personality disorder.90

Some parents may respond to their child’s disclosure and/or the child’s crisis by attempting to “fix” the child through counseling or other treatment, such as hormone therapies or institutionalization.91 Others may eject the chil- dren from their homes, leaving them essentially homeless.92

The imposition of change or reparative therapy or the institutionalization of a child in response to his or her coming out has not generally been considered to be a form of emotional or psychological abuse within the legal context and rarely has been referred to as a form of child abuse within the helping professions.93 Although the scenario may appear more theoretical than actual, such situations do, in fact, arise and may constitute emotional abuse.94 As an example of how such a situation might arise, despite recent pronouncements

inner perceptions, as they open up to their own feelings and move beyond acceptance; and (4) taking a stand by confronting homophobia, “coming out” as parents, self-identifying in public, and educating critics).

88 John C. Gonsiorek, The Use of Diagnostic Concepts in Working with Gay and Lesbian Populations, 7 J. HOMOSEXUALITY 9, 11-12 (1981/82).

89 Id. 90 For a summary of guidelines for such differential diagnoses, see KATHLEEN Y. RITTER & ANTHONY I.

TERNDRUP, HANDBOOK OF AFFIRMATIVE PSYCHOTHERAPY WITH LESBIANS AND GAY MEN 151 (2002). 91 ROBERT E. OWENS, JR., QUEER KIDS: THE CHALLENGES AND PROMISE FOR LESBIAN, GAY, AND BISEXUAL YOUTH

65 (1998). 92 Andi O’Conor, Who Gets Called Queer in School? Lesbian, Gay and Bisexual Teenagers, Homophobia,

and High School, in THE GAY TEEN EDUCATIONAL PRACTICE AND THEORY FOR LESBIAN, GAY, AND BISEXUAL ADOLESCENTS 96 (Gerald Unks ed., 1995).

93 One writer has suggested that the coercion of sexual minority youth by imposing conversion therapy is akin to child abuse. See Douglas C. Haldeman, Gay Rights, Patient Rights: The Implications of Sexual Orientation Conversion Therapy, 33 PROF. PSYCHOL.: RES. & PRAC. 260, 263 (2002) (citation omitted).

94 For a discussion of other such scenarios, see OWENS, supra note 91, at 65; Elvia R. Arriola, The Penalties for Puppy Love: Institutionalized Violence Against Lesbian, Gay, Bisexual and Transgendered Youth, 1 J. GENDER RACE & JUST. 429, 458 (1998); Miye A. Goishi, Unlocking the Closet Door: Protecting Children from Involuntary Civil Commitment Because of Their Sexual Orientation, 48 HASTINGS L.J. 1137, 1170-72 (1997). In addition, this writer has been consulted in a number of situations by minor children and/or concerned adults in response to parental attempts to have the child institutionalized

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indicating that same-sex orientation is not a mental disorder, consider the legal provisions that would govern such a situation in California. California’s criminal code imposes punishment on any person “who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering.”95

For the mental suffering to be punishable, then, it must be “unjustifiable” and the circumstances or conditions under which it occurs must be “likely to produce great bodily harm or death.” Accordingly, although mental suffering theoretically is encompassed within the statute, in actuality there is no recourse absent a tangible, physical injury, which is unlikely to occur in the presence of emotional abuse alone. Furthermore, the procedures one might suppose are in place to prevent such unjustified institutionalizations are lacking.

In California, adults and dependent children found to be mentally ill and gravely disabled or mentally ill and a danger to others or themselves may be hospitalized involuntarily for up to 72 hours.96 An additional commitment term of up to 14 days, known as the certification period, is permitted, uti- lizing the same standard of dangerousness forming the basis for the 72-hour initial period.97 An individual’s commitment to an extended postcertification period of up to 180 days is contingent on a finding that the mentally ill in- dividual presents a more serious and specific danger to others.98 The petition for postcertification is brought by the individual, or his or her designee, in

in response to his or her disclosure of sexual orientation. During the 1950s and 1960s, “treatment” strategies for homosexuality included aversion therapy, in which nausea and vomiting were induced in the patient in response to the sight of same-sex sexuality, castration, group therapy, and electroshock therapy. JONATHAN KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE U.S.A. 276-83, 296-99 (1976).

95 CAL. PENAL CODE § 273a(a) (West 1999). 96 CAL. WELF. & INST. CODE § 5150 (West 1998). 97 Id. § 5250. 98 One or more of the following conditions must exist for the individual to be committed for a postcerti-

fication period:

(a) The person has attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another after having been taken into custody, and while in custody, for evaluation and treatment, and who, as a result of mental disorder or mental defect, presents a demonstrated danger of inflicting substantial physical harm upon others. (b) The person has attempted, or inflicted physical harm upon the person of another, that act having resulted in his or her being taken into custody and who presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm upon others. (c) The person had made a serious threat of substantial physical harm upon the person of another within seven days of being taken into custody, that threat having at least in part resulted in his or her being taken into custody, and the person presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm upon others.

Id. § 5300.

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charge of the health care facility to which the mentally ill person has been committed.99 The petition is reviewed by the district attorney, who decides whether to seek an order from the appropriate superior court for an additional 180-day period of treatment.

The Lanterman-Petris-Short Act100 imposes a number of procedural pro- tections in such situations, including an automatic certification review and the right to be represented by counsel or an advocate, to present evidence, and to question witnesses at the review. The hearing is conducted by a court- appointed commissioner or referee or by a certification review hearing offi- cer. Upon evaluation, a decision to detain the individual must be supported by probable cause to believe that “the person is, . . . as a result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled.”101 In the context of a subsequent habeas corpus proceeding, the individual has the right to be represented by counsel102 and to challenge the findings. Findings must be supported by a preponderance of the evidence.103

A different set of protections applies in situations in which a child will be institutionalized in a private facility and the cost will be paid or reimbursed through a private insurer or private health service plan.104 In such instances, a review by an independent psychiatrist is conducted after the child’s admission and within five days of a request for a review.105 The psychiatrist must conduct a private interview with the child. The child is permitted to have an advocate present during this process, but there is no right to counsel. A review of the admissions decision is premised on an assessment of whether the admission is “reasonably likely to be beneficial.”106

A child who has just revealed his or her sexual orientation to parents may be a danger to himself or herself. Queer youth have been found to be at increased risk for suicide.107 However, many of the attempted and completed

99 Id. § 5301. 100 Id. §§ 5000-5569. 101 Id. § 5213. The California Supreme Court in In re Roger S., 569 P.2d 1286, 1289 (Cal. 1977), held that

the determination to be made during review of the commitment of a child 14 years of age or older by his parents to a public institution is “whether the minor is mentally ill or disordered, and whether, if the minor is not gravely disabled or dangerous to himself or others as a result of mental illness or disorder, the admission sought is likely to benefit him.”

102 CAL. WELF. & INST. CODE § 5276. 103 See In re Azzarella, 254 Cal. Rptr. 922, 924 (Cal. App. 1989). 104 CAL. WELF. & INST. CODE § 6002.40(b). 105 Id. §§ 6002.25, 6002.30(d). 106 Id. § 6002.30(c). 107 See Karla Anhalt & Tracy L. Morris, Developmental and Adjustment Issues of Gay, Lesbian, and

Bisexual Adolescents: A Review of the Empirical Literature, 1 CLIN. CHILD FAM. PSYCHOL. REV. 215 (1998); Anthony R. D’Augelli & Scott L. Herschberger, Lesbian, Gay, and Bisexual Youth in Community Settings: Personal Challenges and Mental Health Problems, 21 AM. J. COMM. PSYCHOL. 421 (1993); Robert Garofalo et al., Sexual Orientation and Risk of Suicide Attempts Among a Representative Sample of Youth, 153 ARCH. PED. ADOLESCENT MED. 487 (1999); Gary Remafedi et al., Risk Factors for Attempted

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suicides have been found to be associated with familial rejection.108 Prosti- tution often may provide the only means of self-support for minor children turned out of their homes into the street,109 resulting in an increased risk of vio- lent victimization and sexually transmitted disease.110 Increased substance use also has been found to be linked to familial abuse following self-disclosure.111

The critical issue for mental health providers is discerning the underlying rea- son for the child’s commitment. Was this an instance where, independent of the child’s sexual orientation, he or she required care for a mental illness? Or, is this a situation in which the symptoms are a response to the child’s situation? If the former question can be answered in the affirmative, we must consider whether the actions of the parents legitimately can be considered emotional or psychological abuse for which they may be held liable. At least one court has adjudicated an adolescent as an abused child as a result of the father’s con- tinuous verbal abuse and taunts of the child’s sexual identity, calling the boy “fag,” “faggot,” and “queer,” despite the child’s denial of homosexuality.112

Certainly, involuntary institutionalization can be considered at least as severe.

B. Children and Spiritual Healing

Similar issues arise in the context of parental decisionmaking related to health care. Freedom of religion is one of our most basic rights and is protected by the Constitution.113 Some organized faiths, including Christian Science,

Suicide in Gay and Bisexual Youth, 87 PEDIATRICS 869 (1991) [hereinafter Risk Factors]; Paul Gibson, Gay Male and Lesbian Youth Suicide, in REPORT OF THE SECRETARY’S TASK FORCE ON YOUTH SUICIDE VOL. 3, 3-110 (Marcia R. Feinlieb ed., 1989). Many of these studies, however, have serious methodological limitations. See Gary Remafedi, Suicide and Sexual Orientation: Nearing the End of Controversy?, 56 ARCH. GEN. PSYCHIATRY 885 (1999); Peter Muehrer, Suicide and Sexual Orientation: A Critical Summary of Recent Research and Directions for Future Research, 25 SUICIDE & LIFE-THREAT. BEHAV. 72 (Supp. 1995).

108 See Tracie L. Hammelman, Gay and Lesbian Youth: Contributing Factors to Serious Attempts or Considerations of Suicide, 2 J. GAY & LESBIAN PSYCHOTHERAPY 77, 77-89 (1993) (concluding “violence, age, substance abuse, family rejection and gender also have an impact on suicidal behavior among gay and lesbian youth”); Joyce Hunter, Violence Against Lesbian and Gay Male Youths, 5 J. INTERPERSONAL VIOLENCE 295 (1990).

109 Gibson, supra note 107; J.W. Peterson, In Harm’s Way: Gay Runaways Are in More Danger than Ever, and Gay Adults Won’t Help, THE ADVOCATE 8 (Apr. 11, 1989). See generally OWENS, JR., supra note 91, at 113-16. Research has indicated that approximately one quarter of gay and lesbian youth are forced to leave home as a result of conflicts over their sexual orientation. Angelina Malhotra-Singh, Young, Queer, and Homeless, NEW COLONIST (Dec. 2002), available at http://www.newcolonist.com/yqh.html (last accessed May 26, 2004).

110 Mary Jane Rotheram-Borus et al., Lifetime Sexual Behaviors Among Predominantly Minority Male Runaways and Gay/Bisexual Adolescents in New York City, AIDS EDUC. & PREVENTION 34 (Fall 1992); Paul A. Paroski, Gay and Lesbian Teens, in KEYS TO CARING: ASSISTING YOUR GAY & LESBIAN CLIENTS 160 (R.J. Kus ed., 1990); NAT’L COALITION FOR THE HOMELESS, NCH Factsheet No. 11: Homeless Youth (Apr. 1999), available at http://www.nationalhomeless.org/youth.htlm.

111 See Hammelman, supra note 108; Remafedi et al., supra note 107. 112 In re Shane T., 453 N.Y.S.2d 590, 591 (N.Y. Fam. Ct. 1982). 113 The Constitution provides: “Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof . . . .” U.S. CONST. amend. 1. The Due Process Clause of the

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Jehovah’s Witnesses, and the Faith Assembly Church, prohibit reliance on most conventional medical treatments and advocate instead the use of prayer and spiritual healing.114 A number of state statutes implicitly or explicitly permit reliance by parents on religion-based treatment for their children and remove the ensuing consequences to the child from the ambit of abuse statutes. Oklahoma, for instance, addresses child abuse within the meaning of its Child Abuse Reporting and Prevention Act as follows:

Nothing in this section shall be construed to mean a child is abused or neglected for the sole reason the parent, legal guardian or person having custody or control of a child, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child.115

California’s statute requires parents to furnish their minor children with “necessary food, shelter or medical attendance, or other remedial care.” A failure to do so is punishable as a misdemeanor. However, California further states that the provision to a minor of “treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof . . . shall constitute ‘other remedial care’. . . . ”116

Ohio law specifically permits parents to provide treatment for a mental illness through prayer:

No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.117

Consider the following scenario. A child is diagnosed as having child- hood schizophrenia. Symptoms of schizophrenia may include delusions, hal- lucinations, disorganized speech, grossly disorganized or catatonic behavior,

Fourteenth Amendment has extended this protection to the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

114 JOHN DEWITT, THE CHRISTIAN SCIENCE WAY OF LIFE (1962); M. JAMES PENTON, APOCALYPSE DELAYED: THE STORY OF JEHOVAH’S WITNESSES 153-54 (1997); see also Anne D. Lederman, Understanding Faith: When Religious Parents Decline Conventional Medical Treatment for Their Children, 45 CASE W. RES. L. REV. 891, 891-93 (1995).

115 OKLA. STAT. tit. 10, § 7103E.1 (West 1998 & Supp. 2004). 116 CAL. PENAL CODE § 270 (West 1999). 117 OHIO REV. CODE ANN. § 2919.22(A) (West 1997 & Supp. 2004).

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and negative symptoms such as flat or inappropriate affect. Some individuals may exhibit echolalia, where they repeat verbatim specific words or phrases that have been said to them.118 Individuals who are frankly psychotic may experience periods of pervasive and uncontrollable fear that is obviously trau- matic for them.119 Treatment for childhood schizophrenia may include both pharmacologic120 and nonpharmacologic approaches.121

Depending on the particular religious perspective, the parent may refuse to authorize psychiatric treatment and the use of antipsychotic medications but assert, instead, that (a) the voices the child hears are direct messages from God and/or angels and, consequently, there is nothing to be cured, or (b) the voices are those of the devil, but that the child can be cured through prayer and/or other spiritual practices. This scenario is not as extraordinary as it might seem. Hall v. State,122 for example, involved a state prosecution in Indiana for the death of a child from pneumonia, where the parents had relied solely upon spiritual healing to effectuate a cure. The parents asserted that the sickness had been caused by the devil, who was engaged in a spiritual battle with God that could be resolved only through prayer.

Despite provisions that seemingly insulate parents from criminal liability for the deaths of their children resulting from a refusal of conventional medical care in favor of a form of spiritual healing, a number of courts have found parents criminally liable in such circumstances. In Hall, for instance, the court held that “prayer is not permitted as a defense when a caretaker engages in omissive conduct which results in the child’s death.”123 It appears, however, that parents have not often been found liable for the emotional or psychological

118 DSM-IV-TR, supra note 79, at 315. There also are requirements relating to duration. Additionally, the condition must be distinguished from that caused by other disorders or conditions, such as the abuse of illicit substances.

119 For a moving first-person account of the impact of the disease, see MARGUERITE SECHEHAYE, REALITY LOST AND REGAINED: AUTOBIOGRAPHY OF A SCHIZOPHRENIC GIRL (Grace Rubin-Rabson trans. 1951).

120 PRACTICAL CHILD AND ADOLESCENT PSYCHOPHARMACOLOGY (Stanley Kutcher ed., 2002). 121 See generally ANNE ALVAREZ, LIVE COMPANY: PSYCHOANALYTIC THERAPY WITH AUTISTIC, BORDERLINE,

DEPRIVED AND ABUSED CHILDREN (1992). 122 493 N.E.2d 433 (Ind. 1986). This author has had participants in her behavioral studies who have:

discontinued their HIV-related medications on the advice of pastors who advised them that their HIV was a test of their faith from God, similar to that imposed on Job; refused to use condoms on the advice of spiritual advisors in their churches who counseled them to have faith that God would protect them; and been told by their clergy to discontinue their antipsychotic medications because they were drowning out the voices of God and the angels.

123 Id. at 435; see also Walker v. Superior Court, 763 P.2d 852 (Cal. 1988) (finding a Christian Scientist responsible for a daughter’s death from meningitis); Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. Ct. 1985) (finding a member of the Faith Tabernacle Church responsible for son’s death from cancer); New York v. Pierson, 68 N.E. 243 (N.Y. 1903) (finding a member of Christian Catholic Church of Chicago responsible for a daughter’s death due to pneumonia). But see Newmark v. Williams, 588 A.2d 1108 (Del. 1991) (finding a Christian Scientist parent not negligent for refusing to authorize medical care where child had only a 40% chance of survival with conventional treatment).

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abuse or neglect of children for refusing the provision of medical care where the harm suffered by the child fell short of death.

C. Child Violence

Child violence has been making national headlines, with continuing reports of completed school and family shootings. Consider the following incidents, all gleaned from national headlines. In 1997, a 16-year-old boy in Pearl, Mississippi killed his mother and then went to school, where he shot and killed three students and wounded another seven.124 In December 1997, a ninth grade student killed three classmates and wounded five others at a prayer meeting at a high school in Paducah, Kentucky.125 In March 1998, two young children in Jonesboro, Arkansas killed five people in a crowd of middle school students and wounded 11 others.126 On May 20, 1998, a Springfield, Oregon student killed both of his parents and the next day killed two students and wounded more than 20 at his school, using a semiautomatic weapon.127

In what is perhaps the best known scenario, because of the extensive media coverage, two students at Columbine High School in Littleton, Colorado killed 12 students, a teacher, and then themselves.128 Columbine was not, however, the end of the violence, despite the subsequent attempts of many schools to augment their security. Additional school shootings continue to make national headlines.129

Numerous theories have been offered in an attempt to explain the appar- ently senseless destruction of both victims and perpetrators. Michael Moore has attributed the violence to America’s pervasive “culture of fear.”130 Others have blamed the producers of “alternative” music and the manufacturers of video games for distributing to youth materials that depict violence as the norm.131 Yet others view school-related violence as a symptom of crisis of state power,132 the result of psychodynamic processes within the student body itself,133 or the adverse effect of having too many children and too few teachers to give them adequate attention.134 Yet another writer has ranted against the

124 Sharon Begley et al., Why the Young Kill, NEWSWEEK, May 3, 1999, at 32. 125 Id. 126 Rick Bragg, 5 Are Killed at School; Boys 11 and 13 Are Held, N.Y. TIMES, Mar. 25, 1998, at A1. 127 Begley, supra note 124. 128 Daniel Glick et al. Anatomy of a Massacre, NEWSWEEK, May 3, 1999, at 24. 129 For a partial listing of such shootings, see Amanda Bower, Scorecard of Hatred: In the Two Years Since

Columbine, America’s Schools Have Been Plagued by New Attacks, TIME, Mar. 19, 2001, at 30. 130 Dana Thomas, Americans and Guns, NEWSWEEK INT’L, June 3, 2002, at 62. 131 Barbara Dority, The Columbine Tragedy: Countering the Hysteria, HUMANIST, July-Aug. 1999, at 7, 8. 132 Thomas J. Catlaw, On Interpellation and Violence at Columbine, 5 J. FOR PSYCHOANAL. CULTURE & SOC’Y

388 (2000). 133 Pamela Sandler & Judith L. Alpert, Violence and Group Dynamics in the High School: The Columbine

School Shootings, 5 J. FOR PHYCHOANAL. CULTURE & SOC’Y 246 (2000). 134 See, e.g., Joy Shayne Laughter, What Was Behind Colorado Shooting?, N.Y. TIMES, Apr. 23, 1999, at

A24.

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spiritual impoverishment pervading today’s youth and the resulting “creative boldness” that leads them to believe that they exist beyond society’s notions of what is right and wrong.135 Mark Taylor, one of those injured in the Columbine shooting, sued Solvay Pharmaceuticals Inc., the manufacturer of Luvox, the drug that one of the shooters was taking for his depression. Taylor claims the assailant did what he did because of the effects of the drug.136

Numerous legal strategies have been examined in attempts to prevent the recurrence of such violence and/or to seek retribution and impose punish- ment. Potential remedies have included the imposition of criminal sanctions against parents for the conduct of their children,137 enhancement of parental involvement within the juvenile court system,138 expansion of parental civil liability for the harms wrought by their children on others,139 and imposition of liability on parents who fail to restrict their children’s use of the Internet to avoid sites that portray violence.140 What has not received adequate attention, however, is the possibility that the child-perpetrators of these tragedies may have been emotionally or psychologically maltreated and the implications of such a finding, if it were true.141

Consider, as a case study, what is known about the facts surrounding the shooting at Columbine High School, to the extent that facts can be known from newspaper articles and the popular press. Eric Harris and Dylan Klebold ap- peared to be two good kids from two relatively stable, middle-class families.142

Harris played soccer until the fall of 1998; Klebold was a member of his

135 Roberto Rivera, Nothing, Nihilism, and Videotape, AM. FAM. ASS’N J., Feb. 2000, at 18, 19; see also Lynne Marie Kohm, The Rising Tide of Juvenile Violence: A Natural Disaster for Values-Free Culture, Education and Families?, 1 BARRY L. REV. 109 (2000) (suggesting such violence is the product of a void in spiritual values, confusion related to sexual identity, overemphasis on sex education, marital instability, and an increase in the prevalence of mental illness within society); THOMAS HIBBS, SHOWS ABOUT NOTHING: NIHILISM IN POPULAR CULTURE FROM THE EXORCIST TO SEINFELD (1999).

136 Kelly Patricia O’Meara, Prescription Drugs May Trigger Killing, INSIGHT ON NEWS, Sept. 23, 2002, at 20.

137 See James Herbie DiFonzo, Parental Responsibility for Juvenile Crime, 80 OR. L. REV. 1 (2001); Deb- orah A. Nicholas, Parental Liability for Youth Violence: The Contrast Between Moral Responsibilities and Legal Obligations, 53 RUTGERS L. REV. 215 (2000); Howard Davidson, No Consequences—Re- Examining Parental Responsibility Laws, 7 STAN. L. & POL’Y REV. 23 (1995-96).

138 See sources cited supra note 137. 139 Rhonda V. Magee Andrews, The Justice of Parental Accountability: Hypothetical Disinterested Citizens

and Real Victims, Voices in the Debate Over Expanded Parental Liability, 75 TEMPLE L. REV. 375, 434-39 (2002).

140 See generally Katherine R. Richardson, Parental Liability and the Criminal Misconduct of Children in the Wake of an Unregulated Internet: Who Should Pay?, 7 CARDOZO WOMEN’S L.J. 29 (2000).

141 In Trenton, New Jersey, a couple was charged by a grand jury with manslaughter after having displayed “conscious disregard” for their 18-year-old son by ignoring his heroin use that killed him. They were not charged with selling or giving him drugs. The actions of the parents could be termed medical neglect, or it could fall within the scope of emotional or psychological maltreatment. Such prosecutions for a failure to act are rare. Russell Contreras, Parents Indicted in Son’s Overdose, TIMES-PICAYUNE (New Orleans, LA), Aug. 23, 2002, at 13.

142 WENDY MURRAY ZOBA, DAY OF RECKONING: COLUMBINE AND THE SEARCH FOR AMERICA’S SOUL 60 (2000).

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school’s drama club. Fellow students reported that they were teased about being gay, although they denied it.143 Fellow students portrayed the pair as “stereotype geeks,” on the low end of the social spectrum.144 Both young men attended anger management classes.145 Harris in particular appeared to have difficulty with anger. He wrote an essay for a psychology class, in which he detailed a dream that centered on a mutual shooting spree with Klebold at the high school. The essay paralleled a video that the two produced for another class; in the video, they used play guns to shoot other students in the school hallways. In addition, Harris fashioned a website where they could release their feelings. Following an argument between Harris and a friend, Brooks Brown, in 1998 and a subsequent threat by Harris against Brown, Klebold told Brown that he should read Harris’ Web site, and gave him the Web address. When Brown found the Web site, he read:

I will rig up explosives all over a town and detonate each one of them at will after I mow down a whole fucking area full of you snotty-ass risch mother fucking high strung godlike attitude having worthless piece of shit whores. i don’t care if I live or die in the shoot-out. all I want to do is kill and injure as many of you pricks as I can, especially a few people. Like Brooks Brown.146

On March 18, 1998, the Browns provided the local sheriff’s office with a printout from the Web site, together with the names and addresses of Harris and Klebold. The police essentially ignored the information. The Browns were never informed that Harris and Klebold were about to be sentenced for breaking into a van; the Harris and Klebold families were never told that a complaint had been filed against Harris.147

Eric Harris and Dylan Klebold obtained three guns used during their killing spree at a Denver gun show, with the assistance of Klebold’s prom date, Robyn Anderson, whom he had met in a calculus class.148 It has been alleged that Robyn knew nothing of their intended purpose. The fourth weapon, a TEC-DC9 assault weapon, was purchased through a contact that Harris met at a pizza parlor where he and Klebold were employed.149

Harris’ parents have been accused of being out of touch. The two youths made bombs in the Harris basement. A sawed-off shotgun and incriminating diary were found in Harris’ room. Harris must have received some professional help, though, because his parents were aware that he had been prescribed

143 See Mike Williams, “I’ve Got the Kids Under the Table,” ATLANTA CONST., Apr. 24, 1999, at A1. 144 Rebecca Y. Mai & Judith L. Alpert, Separation and Socialization: A Feminist Analysis of the School

Shootings at Columbine, 5 J. FOR PSYCHOANAL. CULTURE & SOC’Y 264, 271 (2000). 145 O’Meara, supra note 136. 146 See ZOBA, supra note 142, at 123. 147 See id. at 119-25. 148 See T. Trent Gegax et al., Searching for Answers, 30 NEWSWEEK, May 10, 1999, at 30. 149 Id.

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Luvox, a medication often used to treat obsessive-compulsive disorder. In fact, the Marine Corps did not permit Harris to enlist after learning from his parent that he was on this medication.

Families of the murdered classmates seeking recovery for their losses from the parents of Klebold and Harris alleged that the parents of these young- sters “had a duty to not act negligently and to not expose others to the unrea- sonable risk of harm by such negligence,” that the parents had been negligent in the fulfillment of their “duties and responsibilities of parental supervision,” and “by omission and inaction” had facilitated their children’s behavior.150

These alleged actions and inactions included allowing Klebold and Harris to maintain a cache of semiautomatic weapons, sawed-off shotguns, and other weapons in their homes and to continue to associate with one another despite their mutual involvement in a prior criminal act.151 Three dozen victims and survivors settled with the Harrises, Klebolds, and the providers of a gun for $2.5 million; as of April 30, 2001, six families had refused to settle.152

We do not know why children would commit such acts of violence. We do know, however, that two of the most important factors associated with juvenile violence are the child’s home environment and relationship with parents. Attachment theory posits that human development proceeds from attachment prior to the age of one.153 Children who do not receive the requisite love and nurturing during their early years may have increased difficulty experiencing a connection to the world around them and developing feelings of empathy, sympathy, and caring. Because they do not feel connected, they are unable to integrate society’s definitions of what is considered right and wrong.154 Hersch has asserted that “[t]he most stunning change for adolescents today is their aloneness.”155

150 Andrews, supra note 139, at 386 (citing Shoels v. Harris, Cause No. 99 CV 3518, Dist. Ct., Denver, Colo. (filed May 27, 1999)).

151 Id. 152 Angie Cannon & Jeff Kass, Missteps, Miscues, 130 U.S. NEWS & WORLD REP., Apr. 30, 2001, at 30. 153 JAMES GARBARINO, LOST BOYS: WHY OUR SONS TURN VIOLENT AND HOW WE CAN SAVE THEM (1999). 154 Id. 155 PATRICIA HERSCH, A TRIBE APART: A JOURNEY INTO THE HEART OF AMERICAN ADOLESCENCE 19 (1998).

Hersch queried:

Today’s teens have grown up in the midst of enormous social changes that have shaped, reshaped, distorted, and sometimes decimated the basic parameters for healthy development. They have grown up with parents who are still seeking answers about what it means to be an adult man or woman . . . . At a time when adolescents need to emulate role models, the adults around them are moving targets . . . . The effects go beyond issues of rules and discipline to the idea of exchanges between generations that do not occur, the conversations not held, the guidance and role modeling not taking place, the wisdom and traditions no longer filtering down inevitably. How can kids imitate and learn from adults if they never talk to them?

Id. at 18-20.

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CONCLUSION: INTEGRATING RESEARCH AND LAW

Despite 30 years of research indicating the adverse consequences of emotional and psychological maltreatment of youth, child protection agen- cies and courts rarely attend to situations involving emotional or psychological abuse that do not also involve sexual or physical abuse. A number of potential remedies have been suggested to ameliorate the ongoing situations of children who are the victims of psychological/emotional maltreatment, including adop- tion or guardianship of the child by persons other than his or her parents,156

court-ordered emancipation,157 and the enhancement of judicial authority in juvenile and family court proceedings to allow for the oversight of parental behavior in situations involving juvenile crime.158

In many ways, these suggestions place the proverbial cart before the horse. Absent consistent, comprehensive, and understandable definitions of what constitutes psychological/emotional maltreatment, encompassing both abuse and neglect, any proposed remedial measures are doomed to fail, be- cause of continuing uncertainty as to what behaviors or consequences are encompassed by the relevant provisions. It is critical, then, that many states reformulate their child abuse and neglect laws to specifically include emo- tional and psychological maltreatment.

The revised provisions must include sufficient guidance to permit man- dated reporters, child protection agencies, and law enforcement authorities to proceed. These revisions must first specify whether it is the behavior of the abuser that is relevant, or the harm to the child. Either scenario is imperfect, however. A requirement of harm in order to justify action actually may result in inaction, as the harm may not be evident until years after the abuse has occurred. Conversely, reliance on behavior alone may result in action in cases in which the child does not suffer harm.

Second, professionals within systems of care appear to require additional training, as well as additional resources. Although, for instance, psychologi- cal neglect has been found to be significantly related to behavioral problems more than physical or sexual abuse,159 it would appear from both the relatively scant attention to emotional and psychological maltreatment in the profes- sional literature and the very few published legal cases involving emotional or psychological maltreatment alone that professionals across disciplines are either relatively unaware or relatively unconcerned with this form of abuse and

156 Sonia Renee Martin, A Child’s Right to Be Gay: Addressing the Emotional Maltreatment of Queer Youth, 48 HASTINGS L.J. 167, 193 (1996) (addressing the remedial option within the context of children abused for being homosexual).

157 Id. at 194-95. 158 Davidson, supra note 137, at 27-28; DiFonzo, supra note 137. 159 See Howard Dubowitz et al., Child Neglect: Outcomes in High-Risk Urban Preschoolers, 109 PEDIATRICS

1100, 1101 n.14-16 (2002).

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its consequences. In short, psychological/emotional maltreatment by itself is not taken too seriously.

Third, it is critical that any remedy to the abuse be structured in such a way as to avoid the revictimization of the abused child. For instance, it is possible that a child may wish to be placed in a foster home or have an alternative adult appointed as guardian. However, this must be accomplished in a way that does not engender additional guilt in the child for having “finked” on his or her parents, leave the child without the benefit of an adult support system, or convey to the child that the abuse is really his or her problem rather than the problem of those who are the perpetrators.

Although child protective proceedings currently are structured so as to be adversarial in nature, they potentially offer the possibility of addressing issues of emotional and psychological maltreatment within the context of the family as a whole.160 Such proceedings can be restructured to incorporate principles of therapeutic jurisprudence.161 Within that paradigm, legal rules, procedures, and actors are seen as “social forces that, whether intended or not, often produce therapeutic or antitherapeutic consequences;”162 their roles can be adjusted so their interaction with clients is therapeutically beneficial.163

As previous scholars have noted: “The issue is not whether therapeutic or psychological treatment should be introduced into a legal system; it is already there. [Therapeutic jurisprudence] offers a model for bringing therapeutic and psychological treatment forward to where it can be directly discussed.”164 This restructuring, however, would require a refocusing of attention from that of the child almost exclusively to the child, the parents, and the family as a composite system.

160 But see DiFonzo, supra note 134, at 95-96. DiFonzo rejects the idea of addressing parental responsibility for juvenile crimes in the context of child protective proceedings, because of the adversary nature of the proceedings and the almost exclusive focus on the welfare of the child.

161 Therapeutic jurisprudence has been defined as “the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical wellbeing of the people it affects.” Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 PSYCHOL. PUB. POL’Y & L. 193, 196 (1995).

162 Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 PSYCHOL. PUB. POL’Y & L. 184, 185 (1997).

163 DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT 17 (1990). 164 Gene Griffin & Michael J. Jenuwine, Using Therapeutic Jurisprudence to Bridge the Juvenile Justice

and Mental Health Systems, 71 U. CIN. L. REV. 65, 66 (2002).