ABUSED CHILDREN AND LEGAL PROCEEDINGS
Children who survive kidnappings or endure phys- ical and sexual abuse need to bring their problems to the attention of the authorities. Detectives and prosecutors must test the veracity of their accounts in a sensitive manner. If their charges seem credible and adults are arrested on the basis of their com- plaints, then their cases must be handled with care by the legal system.
Cases revolving around allegations of abuse within a family traditionally are dealt with by child welfare protective services and family courts. Cases involving very serious charges are brought to criminal court. But by trying to protect the child from further harm, the judicial proceedings inad- vertently can compound the youngster’s suffering. It has become clear that the adult-oriented crimi- nal justice system is not designed to address the emotional and physical needs of traumatized children. As key witnesses for the prosecution, youngsters often find the setting hostile and the proceedings confusing, hard to fathom, and fright- ening (Munson, 1989).
Taking into Account the Best Interests of the Child
An abused child needs an advocate who will pro- vide support and advice during legal proceedings, especially when the alleged offender is a parent. The law has recognized the inability of the gov- ernment’s prosecutor to play this role and created a special position, the guardian ad litem (GAL), to look after the best interests of the child. The Child Abuse Prevention and Treatment Act passed by Congress in 1974 required that youngsters be pro- vided with GALs if CPS lodges charges against their parents in family court. The Victims of Child Abuse Act of 1990 went further and recom- mended the provision of GALs to young complai- nants when their serious accusations channeled their cases to criminal court. By 1997, nearly 650 programs operated across the country, providing court-appointed special advocates. In 2007, GALs served as independent voices seeking to protect about 234,000 young clients from further abuse and neglect (Patterson, 2009).
Usually, these court-appointed advocates are attorneys, but in some states they can be especially trained volunteers. Their duties include accompa- nying the child to legal proceedings and helping arrange for needed social, mental health, and medi- cal services. In criminal proceedings against an abuser, the GAL is supposed to serve as counselor, interpreter, protector against system-induced trauma (insensitive handling), monitor, coordinator, advocate (of rights to privacy and protection from harassment), and spokesperson (about wishes, fears, and needs). Guardians interview caretakers, service providers, therapists, foster parents, and teachers in order to investigate a child’s background, home environment, and relationships with family mem- bers. In some states, GALs assist the child in prepar- ing a victim impact statement. They also can submit their own recommendations to the court about what would be best for the child’s welfare, in terms of maintaining safety and meeting emotional needs. Over 500,000 children wind up in the foster care system. Because youngsters in foster care can suffer from another round of physical and sexual
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abuse and neglect, some states have set up an inde- pendent child advocate’s office to serve as a watch- dog and intervene on behalf of these especially vulnerable youth (Whitcomb, 1992; Lawry, 1997; Smothers, 2003; and Patterson, 2009).
The creation of the position of guardian ad litem dramatized the importance of a much larger question: What are the injured party’s best interests? When children are too young to be able to explain for themselves what would be to their advantage, it is up to GALs to advocate in their behalf. But what are the options, opportunities, perils, and pitfalls of various courses of action?
Two official responses are possible in cases of physical or sexual abuse. One is to view parental wrongdoers as dysfunctional people in need of treatment and rehabilitation. The other is to react to them as criminals who deserve incapacitation and punishment. These two alternatives reflect oppos- ing philosophies. Mental health professionals (psy- chiatrists, psychologists, counselors, and social workers) tend to see criminal proceedings as unpro- ductive, inhumane, damaging to both victims and perpetrators, and inappropriate in all but the most horrendous cases. Police officials and prosecutors tend to resent therapeutic approaches that, in their view, coddle offenders and excuse their antisocial conduct. But these alternatives have become inter- twined, as criminal proceedings have been used to compel abusers to undergo court-mandated and supervised treatment programs as a condition of pretrial diversion or probation (see Berliner, 1987; Harshbarger, 1987; and Newberger, 1987).