Tag Archive for 'child'

Proposed Child Spanking Law in Kansas Would Have Been a Disaster

Child Spanking Law Proposed by a Kansas State Representative

Anyone remember when parents and teachers spanked kids? Last week, Kansas State Representative Gail Finney proposed a bill which would have explicitly legalized spanking children. The bill has since died in committee, but given that 81% of Americans believe spanking is sometimes appropriate, the issue is bound to come up again.

Child Spanking LawsOf course, Kansas has allowed spanking children before. However, spanking was legal in common law, or law as understood by courts. Child spanking was not formally written down in statutes by lawmakers. Last week’s bill would have declared that “up to ten forceful applications in succession of a bare, open-hand palm against the clothed buttocks of a child and any such reasonable physical force on the child as may be necessary to hold, restrain or control the child in the course of maintaining authority over the child, acknowledging that redness or bruising may occur on the tender skin of a child as a result.” “Child” would have included “a person over the age of 18 who is enrolled in high school.” More importantly, the bill would have allowed parents to give permission to school authorities to spank their child.

As mentioned before, 81% of Americans claim they believe spanking is appropriate. Interestingly, 31 states ban or limit corporal punishment (child spanking). The scientific basis for this political support rests on shaky grounds. In 2010, Professor Gunnoe of Calvin College concluded that adults who recall being infrequently hit were better adjusted than adults who didn’t remember being hit. In 2012 though, the Monitor on Psychology reported that harsh punishment could lead to “increased aggression, antisocial behavior, physical injury and mental health problems.”

Imagine If Kansas Had Actually Passed the Child Spanking Law…

So what’s the big deal about writing a rule down? There are two problems when lawmakers try to write down court recognized rules.

First, a poorly written law can wreck all kinds of chaos. Under the proposed spanking bill, children could give school personnel the authority to spank children, even if the child is 18. When a child turns 18, however, the child is a legal adult. Parents cannot give school personnel the authority to spank their adult child because parents would no longer have the authority to grant that kind of power.

Politically, this provision of the bill would have been a disaster. The Constitution gives 18 year olds the right to vote. Any politician who allows government workers to spank their constituents would not be in office for very long. Allowing school officers to spank any high school student could have lead to very poor publicity. Imagine a 52-year-old male teacher spanking a 16-year-old woman.

Second, this bill was not the law child spanking advocates were waiting for. By codifying one method of child spanking, the law would have precluded other forms of discipline. Representative Finney’s bill would have legalized “bare, open-hand palm against the clothed buttocks of a child” only. Presumably, other types of punishment would not have been legal.

Representative Finney considered this an upside. The line between child abuse and child discipline would have been better defined. However, limiting child spanking to “bare, open-hand palm against the clothed buttocks of a child” ignores many possible circumstances. Some children are very tough and barehanded slapping would not be very intimidating to them. On the other end of the spectrum, this bill would have permitted bruising as a result of spanking. Some people consider bruising a sign of abuse.

Representative Finney might have had the best of intentions, but courts need flexibility to judge specific cases. Kansas is fortunate that this bill ended in the scrap heap.

Court Overreacts to Child Pornography Case

Everyone is opposed to child pornography so there’s never much of a public outcry when a violator receives a harsh sentence. However, is there ever a case where a punishment is too severe or even unwarranted? Consider the recent case of the teenage girl named C.S.

child pornography caseThe child pornography in question is a sex video of two consenting teens, a 16-year-old girl and a 17-year-old boy. The boy kept the video on his phone for a year. During that year, the boy posted the video onto the Internet, which his former lover complained about to the police. Soon after, the boy sent the video to C.S., who then posted the video onto Facebook. C.S.’s attorney claims the only motive for posting the video onto Facebook was to harass the girl in the video.

In 2012, C.S. was prosecuted by Pennsylvania’s District Attorney on child pornography charges. Judge Robert Steinberg dismissed the case. Judge Steinberg agreed with C.S.’s attorney that child pornography laws were meant to protect children from sexual abuse, not to punish teens for their lack of foresight. The trial judge also believed that the law violated the Constitution by depriving “a teenager of ordinary intelligence ‘fair notice’ of what is prohibited.” The Pennsylvania Supreme Court reversed, holding that Judge Steinberg had overstepped his authority by using an argument not presented to him by one of the attorneys.

Why This Case Is Ridiculous on at Least Three Levels

First, it is not “child” pornography if the “children” engaging in sex in the video are 16 and 71 years old. Given that Pennsylvania’s age of consent is 17, the teens in the video were legal consenting adults.

The latter, if successful, would require that C.S. be placed on the sex offender registration, a punishment which would be disproportionate to the crime. I’m not suggesting that C.S. shouldn’t be punished or that the girl in the video deserved to have that video of herself posted online. However, C.S.’s attorney was correct in saying that the appropriate charge should be harassment, not child pornography.

Second, the DA’s decision to prosecute C.S., but not the 17-year-old boy who gave her the video, is sexist. The boy had the video in his phone for about a year. If the DA was serious about possession of child pornography, it should have launched an investigation against the boy as well. Accusing C.S. of distributing child pornography also seems like a double standard if the boy also posted the video online. Even if the DA did not intend to engage in gender discrimination, prosecuting one gender but not the other gender for the same crimes in the same case leaves a bad impression.

Of course, this entire situation could have been avoided if C.S. had refrained from posting a sex video on the Internet. Did she have a free speech right to post sex videos of other people online? To be clear, free speech does not protect people from posting child pornography online. However, pornography depicting adults is a gray area. The Supreme Court has long permitted laws which ban “obscenity.”

The problem is that courts have been unable to come up with a definition for “obscenity.” Simply outlawing depictions of nudity or sex is not possible because scientists and doctors need to discuss and distribute papers or videos about sex to treat certain conditions. Even worse, the porn industry has actually succeeded in outsmarting judges on a few occasions. When the Supreme Court ruled that videos were obscene because they lacked any social value, some pornography studios had the participants read medical or legal journals while they engaged in sex.

In this case, civil law might be a better solution than criminal law. The girl in the video can still sue C.S. for harassment. C.S. is also in violation of Facebook’s policy not to post sexual content. Breach of contract with Facebook is a minor offense compared to a criminal trial for child pornography, but restricting one girl’s ability to access Facebook is better than twisting child pornography law to punish someone who didn’t commit that specific crime.

When Is Recording a Music Video Child Abuse?

Rap videos are often criticized for promoting drugs and sex to youth. There has never been a real legal problem with such videos though because of free speech protections. The music video involving Luis Rivera Jr., “Lil Poopy,” though has brought a new spotlight to rap because “Lil Poopy” is not only promoting drugs and sex to a prospective youth audience – “Lil Poopy” is a youth, or rather a nine-year old child, himself. The Massachusetts Department of Children and Families (MDCF) are now investigating to determine if there is child abuse or neglect. If the investigation yields child abuse or neglect, Luis Rivera Sr., the child’s father, could face criminal prosecution.

lil poopyLil Poopy made headlines when he was featured in a music video riding in a Ferrari with the “Coke Boys,” a rap group. The lyrics are primarily “coke ain’t a bad word,” although the group defends the lyrics by saying that the lyrics are mainly about soda. The video shows Lil Poopy engaging in very sexually suggestive dances while a crowd throws money at them. The video ends with Lil Poopy slapping an adult woman’s buttocks. The video can be viewed here.

The MDCF received a tip from a viewer about the content of the video and they launched an investigation. The father denied any wrongdoing and hired an attorney. The lawyer, Joseph Krowski believes that Lil Poopy has a right to express himself and that the investigation is racially motivated. The Coke Boys have disclaimed any claims that Lil Poopy is signed on with them, but the producer, Brian Slay, says that the video is “fine.” Slay claims that Lil Poopy does “well in school and is liked by peers and teachers.”

It is understandable that the MDCF would want to investigate after the release of this video. The video is highly suggestive of drugs and sex. Although such topics are not unusual in music, let alone rap, it is disturbing to see a child singing and taking part in a video which could be viewed as celebrating such vices. The Rivera family is correct that there is no express child abuse, physical, sexual or emotional injury, to the boy. Permitting a child to believe that drugs and random sexual acts towards women are socially acceptable behavior though could lead to a defect in Louis Rivera’s moral judgment. If the father allows his son to participate in this kind of conduct, the father could be responsible for any cocaine usage, distribution and prostitution his son could engage in. This video is a child neglect case waiting to explode.

The problem with this argument thought is that making such a video would lead to such a slide, a slippery slope which may not occur at all. Moreover, as the Rivera’s attorney points out, “even nine-year olds have First Amendment rights.” First Amendment rights do have limitations, including a prohibition against inciting violence.

From the MDCF point of view, the video is inciting sex and drug use among youth, which are both violations of the law. Restricting speech on the basis of wrongful conduct should only be done if the leap from speech to conduct is so short that the conduct is almost immediate. Holding otherwise would result in government making otherwise legal acts criminal.

This story is most disturbing if it is taken as a moral thermometer of the country. Although Americans cherish their liberties, we do have to wonder if the floor of moral conduct has fallen too low. As a family member remarked to me, “sometimes there is too much freedom.” When a child is all but marketing drug and sex, we as a country should step back and reflect on whether the observation about too much freedom is true.

I believe there is no such thing as too much freedom, at least with regards to free speech. First, the alternative, not enough freedom, is much worse. Second, even if lack of moral decency is a problem, that does not mean the law is the solution. The law, which forces people to obey through the use of criminal sanctions, is often too blunt a tool to encourage people to do what they should do. Moral decency is won not by damning the flow of free speech, but by opening the floodgates. If the Lil Poopy video is a moral travesty, than the response should be to talk about why it is wrong, not to lock up parents who permit such recordings.

U.S. Supreme Court to Decide Rare Family Law Case

The United States Supreme Court rarely hears family law cases, so the few family law cases the nine justices do take are worth examining. One of the first cases on the Supreme Court’s docket in 2013 involves an unusual twist for family law. Most child custody cases are decided by the “best interests of the child” standard; the party which obtains custody is the party most likely to provide a healthy and happy home for the child. Unlike the rest of the law, there are very few exceptions to the child’s best interest standard. Capobianco v. Brown, however, will examine one of the few exceptions which does exist.

In 2009, Matt and Melanie Capobianco adopted an infant named Veronica after Veronica’s birth mother relinquished parental rights.  Veronica stayed with the Capobiancos for two years until her biological father, Dusten Brown, returned from military service in Iraq and contested custody over his daughter. Brown wanted custody of his child even though the veteran had signed papers relinquishing parental rights before Veronica was even born. Brown’s intentions and understanding of the legal papers is not clear, although it appears Brown had initially believed he was only signing away his obligation to pay child support. However, Brown’s former fiancée, Veronica’s birth mother, had claimed she would raise the child on her own.

cute childSince Brown had apparently given up his parental rights, his attorney found a creative solution: the Indian Child Welfare Act (ICWA). The act creates an exception, or at least a statutory preference, to the child’s best interests standard for Indian children. Critics of the law say it replaces the child’s interests for the interests of Indian tribes. Dusten Brown is a member of a Cherokee tribe. Social service agents had been unaware of Veronica’s cultural background because her biological mother had neglected to mention that fact. If Brown is successful in triggering the ICWA, the act would restore an Indian child to the custody of parent within an Indian tribe. South Carolina’s Supreme Court had ruled for Brown, who promptly took Veronica with him to Oklahoma. The Capobiancos have appealed to the United States Supreme Court.

Brown had signed a contract giving up custody of his daughter, but it appears at first glance that the ICWA is a public policy which can void an agreement. A lower court case in 2008 makes preservation of Indian tribes a compelling state interest, although the survival of the Indian tribe must be in question. That reading is in line with Congressional intent though, since Congress had passed the ICWA specially to preserve Indian tribes. It would be absurd if federal law could be avoided through the mere use of a contract.

Despite the historical and legal arguments though, no exception to the child’s best interest standard should exist. The entire point of the standard is to ensure that adults do not place their own selfish desires over the needs of a child. Preserving cultural identity is just as much of an egoistic enterprise as using child custody as a means to hurt a former spouse. A child does not “belong” to a culture anymore than a child belongs to a sports team or religion. Culture should be an identity that an individual can adopt for themselves rather than an identity forced onto them by their parents.

Brown would argue that the child’s best interest standard has been abused in the past. The ICWA was passed because it was assumed that Indian culture was never in the child’s best interest, leading to many Indian children being removed from their parents for no real reason other than racism. Brown would argue that the ICWA is not an exception to the rule, but a preference by the law to placed Indian children with Indian parents where possible.

There is no doubt that those previous generations made many racist assumptions and that this generation should not delude themselves into believing they are somehow better than their ancestors. Giving preferences according to blood is not different from treating others poorly because of their culture though. If Brown is truly the best possible parent for Veronica, Brown should receive custody. Let us leave race out of the picture though.

keeping our kids safe from predators facebook

Judge Stops Facebook Users From Tracking Pedophiles

Parents are rightfully worried about protecting their children from online sex predators. The anonymity of the internet allows pedophiles to prey on unsuspecting children while the children surf around on Facebook or other social media websites. A case from Belfast, Ireland though could turn this entire equation upside down when parents begin using Facebook to track pedophiles.

Facebook allows its users to set up pages tailored to specific interests, such as movies, political movements and pets. One such page, called “Keeping Our Kids Safe From Predators,” (KOKSFP) posted the names and pictures of convicted sex offenders around the world. One such offender, known only as XY at his request, claims that the page caused him to be attacked and his rental apartment burned down. XY had previously served a six-year prison sentence for a series of crimes against children. XY demanded that the page be taken down to preserve his privacy and safety.

keeping our kids safe from predators facebookJudge Bernard McCloskey ruled in favor of XY, stating that XY had already served his sentence to society. Although Facebook had already removed XY’s picture and name from the page, Judge McCloskey still ordered the KOKSFP page removed despite Facebook’s protests that the page had 4,000 users. Facebook relented, but a new page titled “Keeping Our Kids Safe From Predators 2” has since appeared. It is unclear if the new page was created by the people who ran the original one.

Although this case takes place in Ireland, the facts are still applicable to American law, given that many states keep sex offender registries and that Facebook is used by Americans just as much as the Irish. The case is interesting on a number of levels, including free speech issues, individual rights issues and the rule of law in general.

The first conflict to consider if a similar case were to appear in the United States is free speech and free press. Citizens should have the right to speak their minds about anything they want, particularly if the issue pertains to the safety of their children. However, it has also been established that speech used for criminal purposes, such as solicitation of immediate violence, is not protected by the Constitution. It is arguably foreseeable that posting the names and pictures of people who commit extremely offensive crimes could incite violence, as XY claims.

The users of KOKSFP would protest that some sex offender registries are already public information and the Facebook page is simply an extension of such registries. The problem with that argument is that official sex offender registries are maintained by local and state officials, and so any errors or incidents can be traced to an accountable party. Facebook users, in contrast, can be anonymous if they wish to be so. Although it may seem excessive to take down an entire page with thousands of users at the request one man, given that other convicts could be targeted, the remedy isn’t that disproportionate.

The second issue behind this case is the ancient conflict between individual rights and community safety. In the United States particularly, concepts such as individual privacy and due process before deprivation of life and liberty are crucial to a fair legal system. Of course, the entire point of government is to protect the community and this latest case will no doubt fuel the cries that “criminals have more rights than law-abiding citizens.” The legal system is built on accuracy though, with specific punishments for specific crimes. Although it is arguable that keeping sex offenders anonymous increases the likelihood they will commit the crimes again, there is neither proof of that nor can the law punish a person for a crime he or she has not done.

Victim’s rights are protected when the criminal is discovered, convicted, and given their specific punishment. The criminal cannot be punished outside of that system without running the risk of turning the criminal into a victim of another crime. Some parents might say that only other parents could understand what it means to care about their children, but arguing that child rape is somehow worse than other crimes, like the murder of an adult, is an insult to the victims of other crimes.

More importantly though, a person cannot be deprived of life or liberty without due process and as Judge McCloskey has pointed out, XY (and possibly others listed on the Facebook page) have already been punished for his crimes. Although XY’s crimes were offensive to every decent person in society, acting outside the law only undermines the law. Some truly cynical folks will say that the courts are useless or that judges do not care about the people they claim to serve, so the rule of law is dispensable anyway. The rule of law, however, must exist to remind society what it is that humans owe to their fellow human beings – even those humans society hates and despises. Men like XY are hated and despised for good reason, but XY’s actions shouldn’t change how decent people should act.