Posts Tagged ‘children’

Holding Medical Professionals Accountable for Child (Sexual) Abuse

May 23rd, 2012 3 comments

I’ve just posted to the Social Science Research Network my forthcoming article (“Duty Per Se: Reading Child Abuse Statutes to Create a Common-Law Duty in Favor of Victims”).

My argument, for the non-lawyers out there, is that laws that impose a duty on medical professionals to report child abuse should also provide the basis for a tort claim against those same providers. I wrote the piece for a symposium about “Dr.” (ugh) Earl Bradley, a deranged man who molested hundreds of children and even infants over the course of many years. And it became obvious to me that existing laws weren’t doing enough to stop this sort of madness, and that only the threat of tort law could get the medical professionals to speak out against one of their own. (I’m speaking in gross generalities here, of course.)

We’ve learned from the Penn State horror story involving Jerry Sandusky, from the exhausting spectacle of the Catholic cover-up, and from too many other sources that institutions protect themselves. Tort liability won’t stop this, but it might put a dent in it. And that’s well worth doing.

For those who want to get their law geek on, here’s the link, and here’s the abstract (in case this isn’t enough to stop you, you can download and read the whole thing by toggling over there….)

This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use “duty to report” statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.

The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?

In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.


So It Begins: Military Same-sex Couples Already Facing Problems

September 27th, 2011 No comments

As I wrote in my previous post, the repeal of DADT peels away the mask on a problem just as it solves another: Once gays and lesbians are allowed to serve openly, their relationships snap into view. And then we can see, clearly, the devastating effect of the Defense of Marriage Act (DOMA) on the daily lives of these couples.

A regular reader and friend drew my attention to this story from Reuters. It details the difficulty that a lesbian couple — a couple with a six-year-old child and a baby on the way — faces when both parents are in the military. The odds that they’ll be placed together are much lower since they’re not married. They have to appeal under a hardship rule, and that’s less likely to be successful than a request to remain together submitted by a legally married couple.

In this case, the hardship request was denied. (But the request was made before Luz Bautista, the mom making it, was able to reveal that she was in a relationship.) So Bautista is about to be shipped off Illinois for a three-year posting that could be extended. The couple plan to swap custody every three months or so, which seems the best they can do under the circumstances. This is another stark example of how DOMA undermines the very family values it was supposedly implemented to protect. We should call attention to cases like this at every opportunity, and call upon the oppositionists to explain and justify such a result.

Meanwhile, until DOMA is either repealed (not any time soon) or declared unconstitutional (a better chance), advocacy groups should be holding the Obama Administration’s feet to the fire. We should insist that the hardship rule be interpreted in such a way as to render same-sex couples no less likely to be placed together than their opposite-sex counterparts. A directive so mandating should issue, forthwith. For now, stories like this one reveal the stark inequality of DOMA and draw the date of its demise ever closer.

Bautista: “The emotional toll. You can’t even describe it. It has been tearing us apart for the last couple of months.” Most parents would agree. And there’s no need for this trauma. Fix it, already.