Revising the Child Abuse Prevention and Treatment Act: Our Best Hope for Dealing with Sex-Abuse Hysteria in the United States

Richard A. Gardner*

ABSTRACT: The 1974 Child Abuse Prevention and Treatment Act has had unforeseen negative consequences in terms of encouraging false allegations of sex abuse.  In order to receive federal funding, states had to pass legislation that mandated specific persons to report suspected cases of child abuse and granted immunity to the reporters.  Funding was made available for the treatment of those judged to be victims, but not for individuals who were victims of false allegations.  Several suggestions are made for changes in this legislation.

Although I have been actively involved in sex-abuse accusations for over a decade, it was not until recently that I became aware of the important role of the Child Abuse Prevention and Treatment Act (Public Law 93-247) (sometimes referred to as "The Mondale Act") in bringing about the sex-abuse hysteria we are witnessing today.  When this legislation was passed by Congress in 1974, child abuse was rarely reported.  In fact, its denial and cover-up were widespread.  It was Congress's intent to rectify this deplorable situation by providing incentives for states to set up programs for child-abuse research, education, prevention, identification, prosecution, and treatment.  Federal funding was made available to match state funding, and this served as an incentive for states to set up such programs.

In subsequent years the law was expanded and modified (P.L. 100-294, P.L. 101-126, P.L. 101-226, and P.L. 102-295), especially with regard to the progressive increase in the amount of federal money allocated to the states.  There were certain provisions, however, that had to be satisfied in order for a state to qualify for federal monies.  Of pertinence to my discussion here is that participating states had to pass legislation that

1. provided immunity from prosecution for all those reporting child abuse and
2. required specific persons (such as health-care professionals, law-enforcement officials, teachers, and school administrators) to report suspected child abuse to the appropriate child protection agency.  Such mandated reporting, by necessity, had to be backed up by penalties (usually fines and/or prison sentences) for failure to report.  In effect, this provision has made it a criminal offense for such designated persons not to report suspected abuse.

During the next few years all 50 states passed legislation providing for the establishment and funding of the appropriate programs. In addition, funding has been provided to the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the U.S., Guam, American Samoa, the Marshall Islands, the Common-wealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

It cannot be denied that those who crafted this legislation were well-meaning, and they cannot be faulted for not having foreseen the widespread grief that has been caused by the Act's implementation by the kinds of misguided and incompetent workers described in other publications of mine (Gardner, 1991, 1992).  One central problem has been that state and federal money is available for the treatment of children who are found to have been abused, but no monies have been specifically allocated for the protection and treatment of those who have been falsely accused and/or children who have suffered psychiatric disturbances because they have been used as vehicles for the promulgation of a false accusation.  Accordingly, an evaluator who concludes that abuse has occurred can justify recommending treatment for which state and federal monies will be provided. If the evaluator concludes that no abuse has occurred, there is no route for requesting funding for further evaluation and/or treatment.

In addition, there is a complex network of interaction and interdependence among mental health facilities, child protection services, and investigatory agencies (including police, detectives, and prosecutors).   It behooves all working in this network to "cooperate" with one another because the greater the number of referrals, the greater the justification for the requisite funding.  Laws mandating the reporting of child abuse and laws providing immunity from prosecution for those reporting abuse ensure an endless stream of referrals for investigators and "validators."  All this predictably fuels sex-abuse hysteria, hysteria in which an accused individual's Constitutional due-process protections are commonly ignored.

These important elements contributing to the hysteria will remain operative unless legislative changes are made at both federal and state levels.  Obviously, state-level changes are less likely to be enacted as long as the federal statutes remain in force.  It is at the federal level, then, that the changes must be made, especially because of the immunity and mandated reporting clauses, which states cannot rescind without depriving themselves of federal funding.
  

Recommended Changes

These are the changes I consider crucial:

1. The federal immunity clause must be dropped.  Immunity from prosecution is generally available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors.  It is incompatible with the basic philosophy of our legal system.  Such immunity encourages frivolous and fabricated accusations.  I would go further and recommend that states that include the immunity provision should not be entitled to federal funding.  This change alone would have a formidable effect upon the hysteria we are witnessing today.  It would, more than anything else, reduce significantly the flood of false referrals being generated at this time.
2. The clause mandating the reporting of child abuse must be dropped.  In practice, it has resulted in the reporting of the most frivolous and absurd accusations by two-and three-year-olds, vengeful former wives, hysterical mothers of nursery-school children, and severely disturbed women against their elderly fathers.  Highly skilled examiners, professionals who are extremely knowledgeable about sex abuse, examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who they often know to be inexperienced and even incompetent.  Yet they face criminal charges if they do not report these accusations.
3.

States in which suspected individuals are deprived of Constitutional due-process protections shall not be provided federal funding.  In order to ensure the implementation of this requirement, states must provide verification that their investigatory and prosecutory procedures provide due-process protections before federal funding is made available.

4. The federal laws now provide funding for child abuse research, education, prevention, identification, prosecution, and treatment.  Similar funding should be provided for programs designed to assist those who are falsely accused, as well as children who have been victimized by being used as vehicles for a false accusation.  States falling to provide similar funding and facilities for the falsely accused and such victimized children should be deprived of federal funding.  Such programs could be combined with existing child-abuse and child-neglect programs.
5. The federal law should require investigatory agencies at all levels to routinely notify and invite for voluntary interview(s) every individual accused of child abuse or neglect.  (These suspects, of course, must first be informed of their legal rights.)  The failure to routinely extend such invitations should deprive the agency of funding.
6. The federal law requires legal representation (a guardian ad litem) for the child victim, but does not require legal representation for the children who are victims of embroilment in false accusations.  These children also should be provided with such representation, and the failure to do so should deprive the state of funding.

These proposals are not simply my own.  They represent an amalgam of suggestions and recommendations provided by colleagues of mine in both the legal and mental health professions, especially Patrick E. Clancy, Esq.; Elizabeth F. Loftus, Ph.D.; Jay Milano, Esq.; the late Morton Stavis, Esq.; and James S. Wulach, Ph.D., J.D.

In addition to changing the federal law, we need more active backlash by those who have been falsely accused.  We need more well-publicized civil lawsuits against incompetent and/or overzealous psychologists, psychiatrists, social workers, child protection workers, "child advocates," police, and detectives whose ineptitude has promulgated a false accusation.  I recognize that success in such lawsuits may be difficult, especially in situations in which the vast majority of the defendant's colleagues and peers are operating at the same level of zealotry and incompetence.  Furthermore, the falsely accused have to be more active in taking action against lawyers who generate frivolous lawsuits.

Moreover, every attempt must be made, through every possible medium, to bring to the attention of the general public the abomination that we are experiencing at this time.  I myself have been an active participant in this realm and believe that some headway is being made.  The media's thick wall of resistance to even giving consideration to the views of people like myself is starting to erode; however, I still view the public media as resistant to giving reasonable voice, time, and exposure to those like myself who are trying to bring this hysteria to the attention of the public.

These recommendations should be viewed as initial proposals at this time.  I recognize that modifications may very well be necessary before they can be implemented.  However, to the degree that these recommendations are implemented, to that degree can we hope for some kind of a turnaround in what is clearly one of the greatest waves of hysteria ever to descend upon the United States.  If they are not implemented, there is a high likelihood that the hysteria and the victimization of the falsely accused will continue.

References

Gardner, R. A. (1991). Sex Abuse Hysteria: Salem Witch Trials Revisited (Hardcover). Cresskill, NJ: Creative Therapeutics.

Gardner, R. A. (1992). True and False Accusations of Child Sex Abuse (Currently Out of Print). Cresskill, NJ: Creative Therapeutics.

* Richard A. Gardner is a psychiatrist, author, publisher, and lecturer at 155 County Road, P.O. Box 522, Cresskill, NJ, 07626-0317.  [Back]

 

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