Central Registry: Protection or Oppression

Ralph Underwager and Hollida Wakefield^*

ABSTRACT: The proposed National Child Protection Act of 1991 includes a national central registry similar to those in most of the states. Such a registry, if the legislation is enacted, will likely have unintended consequences, including the violation of the civil liberties of those whose names will be included on it.

On November 14, 1991, Senator Biden rose to address the Senate and introduce a bill, S. 1966, titled the National Child Protection Act of 1991. Cosponsors included senators Thurmond, DeConcini, McConnell, Metzenbaum, Grasslet, Heflin, Simon, Specter, Dixon, Durenberger, Kasten, and Hatch. As recorded in the Congressional Record, November 14, 1991 (S 16749), Senator Biden said:

Mr. President, I rise today to introduce legislation to confront what I believe is one of the most threatening dangers confronting the Nation-the tragedy of child abuse ...  Many abused children are victimized in their homes, but there is a large and growing number of children being victimized outside the home ...  must be met by an expanded national effort to protect these children.

Senator Thurmond also spoke in support of S.1966 and said (S 17652):

Mr. President, the protection of innocent children from abuse is a vastly important matter of national concern which must be addressed.  Frankly, I can think of no crime more deserving of our national attention and harsh punishment than the molestation or abuse of a child. . . . Those who violently prey upon childhood innocence must be caught, prosecuted, and sentenced to tough criminal penalties.

The proposed National Child Protection Act of 1991 is legislation "to establish a national background check procedure . . . initiate the reporting of all State and Federal child abuse crimes . . . and provide protection from inaccurate information for persons subjected to background checks . . . and for other purposes. . ." (S 16749).  This legislation, if enacted, will set up a national data base to include information from the state central registries.  As printed in the Congressional Record, the proposed bill defines "child abuse crime information" to include anybody who has been indicted or convicted of a child abuse crime under state law.  This national system requires state agencies to maintain a close liaison with the National Center on Child Abuse and Neglect, the National Center for Missing and Exploited Children, and the National Center for the Prosecution of Child Abuse "for the exchange of information and technical assistance" (S 16750).  It is left to the individual states to determine the procedures so that ". . . qualified entities identified by States; authorized representatives of a qualified entity who have a need to know such information; the providers; law enforcement authorities; or pursuant to the direction of a court of law . . ." (S 16751) may get the information contained in this national registry.  Both Senator Biden and Senator Thurmond identify the source of this proposed legislation as the plan and recommendations brought before the Senate judiciary committee by Oprah Winfrey, actress, television personality, talk show host, and child abuse activist.

The protection of children is the rationale behind the establishment of state central registries and now that concept is advanced as the reason for a national registry. When the idea of a central registry of abused and neglected children was first proposed in the early 1960s, its purpose was primarily diagnostic.  If a physician suspected a child had been abused, a call to a central bureau could discover if that child had previously been reported as abused and then the physician could make the diagnosis of child abuse (Besharov, 1978; Whiting, 1977).  This enabled the child protective services to act to protect a child.  However, as public consciousness and awareness of child abuse was raised in the 70s, protecting the child began to include using a report of abuse to obtain services in a climate of declining resources and funding streams.

. . . there was a shift in other aspects of the community's services for children and families ...  Slowly and subtly, at first, there began to develop a tendency to seek services for children by tying various other family and social problems to a child abuse or neglect allegation when the issue was not really one of abuse and neglect ...  Reports of suspected child abuse and neglect to state or local child abuse reporting centers reflected a broadened perception of concern beyond what heretofore were considered to be the guidelines for reporting. ... The clear trend was to seek help for families and children by using the Child Protective Services system as the path to help . . .  Where abuse and neglect becomes too broadly defined only as a means to make children and families eligible for services, serious problems develop (Cameron, 1988, p.324-325).

This clouding of the mission of child protection is suggested as a cause of the increased level of in substantiated reports in recent years. In some states services to a family are not offered until there has been decision by a worker to substantiate a claim of abuse (Flango, 1991).  It is also likely to lead to improper and irresponsible intrusion into families and individual civil rights (Cameron, 1988).

Now almost all of the states have central registries 0 record reports of child abuse. These data banks are claimed to have a number of functions, including case diagnosis, case management, program monitoring, research, and program planning (Besharov, 1990).  Possible benefits from a central monitoring function accrue from several variables discussed by Besharov 1978) but are often overlooked.  Many protection workers have little or no training beyond a brief orientation session.  The burnout rate is high and therefore the turnover of workers is rapid.  One study reported that less than 20% felt a child protective worker's role was to protect the child (Besharov, 1978).  Although workers have considerable difficulty flaking the difficult decisions they are required to make, in most states there is no review of the worker's decisions.  A consequence is that difficult cases may lever get closed but just fade away as caseworkers change, families disappear, memories weaken, and bureaucratic shuffles obscure the reality (Besharov, [978).  A central registry could help by providing close and accurate monitoring of investigations and delivery of services.  However, as Whiting (1977) observes, this requires that those doing the reporting and entering of data do so promptly, accurately, and completely.  Experience thus far suggests this is not likely to be the case.

However, now the emphasis has shifted to the recording of information about the accused perpetrator rather than the abused child and the family. The proposed National Child Protection Act of 1991 would record only information about the indicted suspect or convicted perpetrator. The aim is to prevent the reprehensible abuser from ever having contact with children who could then be abused. Senator Thurmond, perhaps unwittingly depicting the first expansion of the proposed national registry, included a much broader population of persons who might be included than the proposed act itself:

The measure will assist in identifying convicted child abusers who prey upon children by seeking employment or other activities where youngsters can be taken advantage of — like day care centers or scout troops . . . that those working with children in organized activities do not have criminal records as child abusers or perpetrators of other serious crimes (S 16752).

The information the proposed national registry must include to perform the required "background check crime" and thus be able to prevent those indicted or with criminal records from having contact with children is defined as follows:

. . . means a child abuse crime, murder, manslaughter, aggravated assault, kidnapping, arson, sexual assault, domestic violence, incest, indecent exposure, prostitution, promotion of prostitution, and a felony offense involving the use or distribution of a controlled substance (S 16750).

The number of citizens who may be indicted or convicted of that roster of crimes is enormous.  They would all have to be included in the national registry in order for the basic step of the background check crime to be done.  The proposed act also requires that three years after the enactment of the act, the system shall be 80% complete for all entries of activity within the last five years.

The ostensible reason for this massive tracking and surveillance of citizens is to prevent convicted criminals who prey upon children from getting jobs in day care centers.  Senator Biden claims that data provided to the Senate Judiciary Committee showed that in six states in just the past year 6,200 convicted criminals sought employment as child care providers.  We have not had access to these data but it seems improbable on the face of it.  Most convicted criminals are men.  Relatively few men apply for jobs as child care providers.  Salaries for child care providers are low, mostly at entry levels, and there is little desirable about such jobs.  It simply seems unlikely that 6,200 convicted child abusers would have strong enough overdetermined behavior to actively seek such a job.  While it may be the case that most convicted criminals have some intellectual limitations, it does not take a rocket scientist to figure out that if once convicted of child abuse it is not very bright to seek a job taking care of children.  There is no evidence that we are aware of showing a significant correlation between crimes like arson, drug abuse, embezzlement, murder and child abuse.  The conventional wisdom about prison populations is that child abusers are the most despised of prisoners and are in mortal danger because other prisoners often attack them, rape them, and kill them.

While we strongly disagree with the methodology, the criteria, and the findings in Finkelhor, Williams, and Burns' (1988) study of sexual abuse in day care centers (see Coleman, 1989, and Wakefield & Underwager, in press, for details), their estimate of the frequency of abuse in day care centers is likely the highest possible interpretation of the meaning of available data.  In 1985 there were 229,000 licensed day-care programs in the country.  Much family day care is unlicensed.  Trying to get some estimate of the frequency, the Finkelhor study used the figure of 61,000 licensed day-care centers.  A center is a day care program with more than six children.

The Finkelhor et al. (1988) figure of 187 centers reported and substantiated for sexual abuse yields an estimate of 30.7 centers with sexual abuse per 10,000 centers.  The number of children allegedly sexually abused in day care centers is reported as 5.5 children per 10,000 enrolled in day care centers.  This would lead to 825 abused children out of the 1,500,000 children in day care centers in 1985.  Given the massive difficulties in the methodology of this study, particularly in the definition of substantiation, this is apt to be a greatly inflated estimate.

Nevertheless, this is much less than the number of children sexually abused in their families, according to Finkelhor et al. (1988).  The number of children sexually abused each year in their families is estimated to be 8.9 per 10,000.  Of the 21,300,000 children under six in American families in 1985 this suggests 18,957 are sexually abused each year in their families.

Data by Russell and Clifford (1987) suggests a much lower estimate of children sexually abused in day care centers compared to Finkelhor et al. (1988).  Russell and Clifford report an analysis of all complaints for one year (1982-1983) alleging abuse in day care centers in North Carolina.  Of the 424 total complaints received, 70 (16.5%) alleged abuse or neglect.  Of these 30 were substantiated as child abuse or neglect.  Of these substantiated cases the legal system sought action in 6%, or 2 cases.  In the other cases of substantiated abuse it was not severe enough to require more than a warning letter or citation on a monitoring form.  There is no report of any instances of sexual abuse in their analysis.

We can agree with the concluding statements by Finkelhor et al. (1988):

... However, the impression that day care constitutes some especially risky environment is probably an illusion ...  The numbers themselves, however, do not indicate some particularly alarming problem with day care itself ...  But at the same time, the problem should not be taken out of context.  The high emotions that surround day care and sexual abuse should not be allowed to generate and precipitate poorly considered policies that might be damaging to both causes in the long run (p.25).

Given the fact that actual number of children sexually abused in day care centers is apt to be low, and to be much less than the number sexually abused in their families, the imposition of a cumbersome and expensive bureaucracy which is questionable in terms of civil liberties is poorly considered and ill founded.  It appears quite possible that the proposed legislation for the National Child Protection Act, 1991, will produce large unintended consequences (Cohen, 1988) that will damage citizens, parents, and children.  The Senate may well be the victim of the current practice of encouraging and causing social change and political action by the use of advocacy numbers (Gilbert, 1991).

... advocacy numbers, figures that embody less an effort at scientific understanding than an attempt to persuade the public that a problem is vastly larger than commonly recognized.  Advocacy numbers are derived not through outright deceit but through a more subtle process of distortion.  Under the veil of social science, rigorous research methods are employed to measure a problem defined so broadly that it forms a vessel into which almost any human difficulty can be poured.  Some argue that efforts of this sort can serve a useful purpose, because social problems are sometimes larger than commonly recognized.  And since the media gravitate toward alarming numbers, a bit of definitional stretching may be necessary to bring the problem into public view.  Among those who practice social advocacy, this is known as "consciousness raising" and is deemed a respectable function of advocacy numbers (Gilbert, 1991, 63-64).

When there is a possibility that a major change in the way citizens are treated by the central government may be based upon such advocacy numbers, caution is well advised.  The unintended consequence of seeking the noble goal of protecting children may well turn out to be oppression of large numbers of citizens, many of whom may not, in fact, be guilty of any crime.

Experience with State Central Registries

Does the experience with state central registries give any information about the possible performance of a national registry?  Is it likely to accomplish the goal of protecting children?  At the very least, the experience with state central registries raises serious questions about the prospects of a national registry.  For this reason the two articles, by Petersen and Whalen, in this issue reporting direct personal experience with central registries are important

Whiting (1977) evaluated the Maryland central registry as ineffective for tracking cases, assisting in diagnosis, or identifying service needs.  She does see a statistical profile of abused and neglected children useful for program development.  However, the proposed national registry provides information about those accused and convicted.  Here the purpose expressed by Senator Thurmond is prosecution.  The inclusion in the Act of the National Center for Prosecution of Child Abuse (a private, nongovernmental, nonprofit subsidiary of the National District Attorneys Association) as one of the agencies states must be in contact with suggests the emphasis is on prosecution.  Since their first public announcements in 1985, the avowed goal of this Center is to prosecute, not rehabilitate, not protect children, and not unify the family:

The NCPCA advocates". . . the handling of child abuse cases by treating these cases as serious crimes.  Prosecutors must demand that child abuse be viewed first and foremost as a criminal act and that treatment alternatives for the abuser are secondary to punishment (APRI, 1986, p. 1). The NCPCA promises to lead a national campaign to reform "the excessive and unnecessarily wide latitude given defendants in attempting to protect their constitutional rights ... "(APRI, p.1) (Wakefield & Underwager, 1988, p. 20.)

Even in the initial presentation of this legislation to establish a national registry it is already evident that the goal of protecting children is being used as a rationale to get congress to pass the bill but that there is far more at stake than the laudable goal of protecting children from predatory pedophiles.  Nobody can argue against protecting children.  However, once the process is set up and the national registry established, it appears highly probable that it will be used for other purposes, principally prosecution and punishment.  The history of the involvement and activities of the National Center for Prosecution of Child Abuse since their initial announcement in 1986 demonstrates the effort to abridge, contain, and limit the civil rights and civil liberties of citizens.  The potential for injustice is understood by an English judge, Justice Waite, in his ruling on a case in Norfolk County:

Mr. Justice Waite said that the Child Abuse Register is "in essence a blacklist, and as such it also has dangerous potential as an instrument of injustice or oppression" ... The Conference recorded "a solemn finding of guilt after a brief and one sided investigation" ... the council adopted a "dangerous slipshod" approach in recording names as "known suspected abusers" on the register NLJ, 1989. p. 283).

An analysis of 48,499 reports submitted to the central registry of Colorado concludes that contact with human service professionals is the factor most powerfully associated with being reported for child abuse.  While there are understood to be many more families, children, and parents who may need services and assistance, if they are not in contact with the system there is no report.  It is those who come into contact with the bureaucracy, however, it may happen, who are on the central registries (Fryer, 1990).

The controversy over central registries does not center around protecting children nor the reality that gaps in services require more funding.  Rather it is the issue of substantiation rates.  Although some claim substantiation rates are rising (Finkelhor, 1990), the available data suggest both a wide variation among states and an average of 40-45% substantiation of reported abuse (Flango, 1991; Flango, 1988).  There are a number of factors which may affect substantiation rates but the one of most concern and importance is the level of proof required.  Here 25 states use a standard of some credible evidence, 12 require credible evidence, and 12 require a preponderance of evidence (Flango, 1991).  What this comes down to, as researchers and legal scholars have defined varying levels of proof, is that no state requires more than a subjective sense that the abuse is at 51% probability level (Faigman, & Baglioni, 1988; Kagehiro, 1990) to include a person on a central registry as an abuser.  Only one state, Washington, includes a category of a conviction as the National Child Protection Act, 1991, currently requires (Flango, 1991).  No state has a category of indicted.

The confusion generated by this situation of divergent standards and categories is most likely to be resolved by an administrative, bureaucratic decision that protects the interests of the bureaucracy rather than serves the liberty interests of citizens.  An example was the decision of Florida administrators to move all cases in their "confirmed" central registry category, where there is an appeal process, to the category "indicated."  Those persons named in the central registry as "indicated" have no appeal process available.  This serves to ease the burden of the system but hardly advances the rights of individuals.  There seems to be a high probability that any national registry will include large numbers of persons where the decision to put them on a central registry has been based on something less than conviction or indictment.

An evaluation of the performance of child welfare agencies (Schwartz, 1991) to protect children cite alarming observations and opinions about the child protection system.  It is breaking down under the weight of increased responsibility and decreased funding. It isgenerating casualties who wind up as homeless children:

. . . many public child welfare agencies are deteriorating and appear unable to provide children an families with services they need or are entitled to.  The increase in child abuse and neglect cases appears to have occurred at a time when "child welfare agencies were experiencing high staff turnover, particularly protective staff, and a decreasing proportion of professionally trained workers" (Office of Human Development Services, 1988, p. c3), and when federal and state fiscal resources allocated toward this problem have been shrinking (Children's Defense Fund, 1988b)(Schwartz, 1991, p.191).

The practical consequences of this situation are that the basic, and most often unreviewed, decision which puts a person on a state central registry as a substantiated child abuser will be made by the least experienced, least trained, least professional, lowest paid, and most harried workers in the system.  Investigations will be as quick as possible.  Decisions will be reached as quickly as possible on the least amount of information.  There will be significant pressure to clear cases, keep caseloads as small as possible, and keep supervisors happy.  Under these pressures, the level of false positives can be expected to rise.  The relationship between state central registries and the national central registry is somewhat unclear but the national registry cannot be expected to be much better than the information supplied to it.

Flango (1991) also reports that substantiation rates show a linear relationship in expected directions when these factors are investigated.  The higher the standard of proof, the lower the substantiation rate.  Only 27 states give any notice that a person has been placed on a central registry.  Where notice is given substantiation rates are lower than in the states where no notice is given.  A due process index shows that the higher the level of due process, the lower the substantiation while the lower the due process the higher the substantiation rate is.  These findings, though Flango (1991) reports they are not statistically significant, are enough to warrant caution about the consequences of a national registry for individual rights and liberties of children and adults.  If a large number of persons are listed in central registries who should not be there, that is, if central registries have significant proportions of false positives — persons listed as abusers when they did not abuse a child — then the registry cannot avoid being an oppressive system that produces injustice.

The incidence and prevalence of reports of child abuse are related to socioeconomic class. The lower the socioeconomic class, the higher the level of reports and the occurrence of child abuse (Cicchetti, 1989; Finkelhor, 1984; Gelles, 1990; Landis, 1956; NCCAN, 1981; Nightingale & Walker, 1991; Pelton, 1978; Steinberg, Cataiano & Dooley, 1981).  Since child abuse became a national issue in the late 1960s politicians have attempted to ignore this evidence because it is politically unappealing and likely to set off a political storm (Finkelhor, 1986; Nelson, 1984).

The result of this fact together with the establishment of a national registry as well as functioning state registries will be a disproportionate number of poor people, lower socioeconomic class individuals, and the least capable and functional of our citizens being included as child abuse perpetrators when they are not.  This will happen simply because the poor cannot cope with the demands of the system.

By definition, the poor and disadvantaged have neither the resources nor the necessary skills to cope with the requirements for a review and an appeal.  The proposed National Child Protection Act, 1991, speaks of procedures to challenge and correct inaccurate background check information.  It then leaves it up to each state to establish those procedures to challenge inaccurate information.  It also leaves it up to the states to give a prompt determination from an authorized agency as to the validity of the challenge.  The present procedures for review and appeal set up by the states do not inspire confidence that there will be any better circumstances for the poor and disadvantaged.

Setting time limits of a few days or even weeks from the date of written notice that a person has been placed in the central registry as an identified perpetrator imposes a demand for a level of skill, emotional strength, and organizational skills that the poor and disadvantaged simply do not have.  When the penalty for not filing for a review in the time limit is permanent waiver of the right to review, many poor are going to be permanently on a central registry simply because they cannot meet the requirements of the rules.  Poor people who may be functionally illiterate, who may lack skills of meeting deadlines, keeping appointments, and getting to work on time, and who may not have the money for a first class stamp or to make a phone call, are not going to be able to comply.

Challenging information contained in a central registry file takes a long time and requires an ability to persevere in the face of frustration, stress, and extreme energy drain.  Maintaining commitment, emotional investment, and focus for such long periods of time is going to be beyond the capacities of the majority of the poor and disadvantaged.  Indeed, it will be beyond the capacities of most of the population.  It is not, however, beyond the capacities of the bureaucracy.  A case will pass through the system to the end no matter how many workers may be assigned to it, what the costs are, or what the truth is.  Petersen, in this issue, reports how, on the day before his expungement hearing, after two years of effort, the state agreed to expunge his name from the central registry.  This could have been done much earlier since no new information was developed during the two years, but it was not until the agency was compelled to do so by a deadline that the action was taken.

The poor do not have money to hire lawyers.  Public defenders or legal aid attorneys are not likely to be able to take such cases.  Private attorneys are not likely to view such cases as appropriate for pro-bono work when there is so much more immediate need for criminal defenses.  The unavailability of legal counsel to the poor will result in more of the poor remaining on a central registry.

The process of "labeling" has been the subject of significant research.  When a label is applied to an individual, the classification decision is likely powerfully affected by variables other than truth or accuracy (Mercer, 1973).  The poor have been shown to be overrepresented in social control institutions, not because of the facts but rather because of the inferences of the labeler (Gingrich, 1978; Lofland, 1969; Newberger & De Vos, 1988).  Characteristics of the labeler, experience, personality, motivation, cognitions, values and beliefs have been shown to affect the label applied to an individual and frequent mislabeling (Gingrich, 1978; Levy, 1981).

The consequences to the poor of any mislabeling are not limited to effects on possible employers or working in a setting involving children.  Supreme Court Justice Black observed in a dissent that a person accused of abuse "is charged with conduct — failure to care properly for her children — which may be viewed as reprehensible and morally wrong by a majority of society" (Black, 1971).  Once an agency has labeled a person as an abuser, other agencies accept the label as real and treat the family or individual accordingly (Parke, 1977).  Social workers talk to one another.  In at least one situation we have knowledge of, even though a report had been expunged, the social worker in that state informed a social worker in another state of the expunged allegation and it was then used in the second state to substantiate an allegation.  Court appearances and social worker visits communicate the label of abuser to others.  Increased alienation and social isolation is invariably the consequence of this labeling.  Fraiberg (1978) wrote:

The label is not a diagnosis. It is a mailing address.  Once the social agencies have placed this . . . the destination is virtually certain.  The family is routed to a network of social agencies, sometimes to four or five at once . . .  The next address will be the court.  After the court there may be a new address for the baby and a new address for the mother (p.96).

The consequences of abuse investigations and public announcements are devastating to families and children.  Job loss, need for public assistance, marital dissolution, foster care, changes in residence, loss of income, children harassed at school, are only some of the things that happen.  The entire family is adversely affected.  Following their research study of actual families, Tyler and Brassard (1984) recommend as the first step to improve the system to ban the publication of convictions for child sexual abuse.  Luza and Ortiz (1990) show the level of control by shame that social workers exercise over falsely accused families.  Buckey, Buckey, and Buckey (1990) describe some of the consequences of being publicly identified as abusers during the course of the McMartin trial.

There are no empirical quantifiable data suggesting a differential rate of child abuse between whites and blacks.  There are empirical data showing a differential rate of reporting for child abuse.  Blacks are more readily and more often reported for child abuse than whites.  Whites more often are unreported when there is a basis for a report to be made.  The impact of racial factors on a central registry is likely to produce a disproportionate number of racial minorities being labeled and identified as abusers.  The number of false positives, persons identified as abusers when they are not, will include a disproportionate number of minority groups and a disproportionate number of white and rich perpetrators who actually abuse children will be missed (Eckenrode, Powers, Doris, Munsch, & Bolger, 1988; Hampton & Newberger, undated; Lujan DeBruyn, May, & Bird, 1989; Newberger, 1983; Rabb, 1981; Tan, Ray, & Cate, 1991; Wyatt, 1990).

While there are potential benefits from central registries and a national registry, the history of state central registries, the demonstrated relationship between worker variables and decision making, the demonstrated relationship between poverty, race, and minority status, and the known history of bureaucracies make it likely that the outcome of registries will be oppression rather than protection.

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