H. Social and Legal Responses to Child Abuse

Author:Julien D. Payne - Marilyn A. Payne

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Child abuse is found in all societies. It has often been hidden or ignored. "Spare the rod and spoil the child" has only recently been displaced by the realization that "violence breeds violence." Research studies demonstrate that child abuse must be prevented not only to save this generation of children but also to save the next generation. Far too often, an abused child in turn becomes the abusing parent of his or her own child.

Statistics indicate that sexual abuse of children is predominantly a male offence, although there are a significant number of cases where mothers have been involved. Mothers are just as likely as fathers to physically or emotionally abuse their children.48Many instances of child abuse involve preschool children and single-parent households.49These factors may partially explain the statistics concerning female perpetrators in that many mothers are left to carry the responsibility of parenthood with little or no help from the fathers.

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Canada, like many other countries, historically offered greater protection to animals than to children. Canadian legislation prohibiting cruelty to animals can be traced back to 1824. The first statute to prohibit cruelty to children was enacted in 1893 when the Ontario legislature passed an Act for the Prevention of Cruelty to and Better Protection of Children.50Manitoba enacted similar legislation in 1898 and the other provinces followed these precedents in the early-twentieth century.

Today, every province and territory in Canada has relatively sophisticated legislation that is aimed at providing protection to abused and neglected children. These statutes call for the mandatory reporting of child abuse to provincial child welfare authorities by any professional or other person who reasonably suspects that child abuse has occurred. In addition to provincial child welfare legislation, the Criminal Code of Canada may be invoked to punish conduct that constitutes physical or sexual child abuse. It is also possible for the victim of child abuse to claim damages for assault and battery from the perpetrator of the abuse.

1) Criminal Sanctions

The criminal offences relating to physical and sexual assaults, which were previously identified as potentially applicable to spousal abuse, may also be invoked in cases of child abuse. Sexual abuse of a child that involves carnal knowledge may also constitute incest, which is punishable by a maximum term of fourteen years’ imprisonment under section 155 of the Criminal Code. In the event that child abuse results in the death of the victim, murder or manslaughter charges may ensue. The Criminal Code of Canada includes many additional offences that are specifically directed at the protection of children. Sections 151, 152, and 153 of the Criminal Code prohibit sexual interference with children, invitations for sexual touching, and sexual exploitation of children. "Sexual touching" includes touching a child for a sexual purpose or having the child touch himself or herself or touch other persons for a sexual purpose. Section 170 prohibits a parent or guardian from procuring his or her child to engage in sexual activities with third parties. Section 215 imposes a duty on parents and guardians to provide necessaries of life to children under the age of sixteen years. Section 223 prohibits the killing of a child once it has proceeded in a living state from the mother. Section 237 prohibits infanticide and section 238 prohibits killing an unborn child during the act of birth.

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A parent’s infliction of corporal punishment on a child for disciplinary reasons does not constitute a criminal assault unless the force used was excessive. Section 43 of the Criminal Code of Canada provides as follows:

Correction of Child by Force

43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.51In Canadian Foundation for Children, Youth and the Law v Canada (Attorney General),52the majority judgment of the Supreme Court of Canada rejected the appellant’s contention that section 43 of the Criminal Code contravenes sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms. The dividing line between corporal punishment and physical abuse is not always clear. There are many people, including experts, who regard any degree of corporal punishment as bordering on child abuse. Criminal assault charges are, however, rarely brought against parents. If the police consider that state intervention is appropriate, they will usually refer the matter to the local child protection agency.

The multiplicity of criminal offences that can be committed against children does not guarantee adequate protection for victims of parental child abuse. Indeed, a child may be re-victimized as a witness against an accused parent in a criminal prosecution. The child faces the terror of revisiting the abuse and is subject to cross-examination by the lawyer representing the alleged offender.

In 1988, federal legislation was enacted to reduce the tension and anxiety faced by children who are called as witnesses in sexual molestation and sexual abuse prosecutions against parents or any other persons.53The court, on application of the Crown prosecutor, will prohibit the publication or broadcasting of any information that could disclose the identity of the child. In addition, any interviewing of the child by the police or a child protection agency may be videotaped. The videotape can then be admitted as evidence at the trial, although its contents must be confirmed by the child at the trial. A child’s testimony may also be presented by closed-circuit television to avoid the need to have the child present in court. Alternatively, a screen

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may be used in the courtroom so that the child does not have to face the accused while giving evidence. Irrespective of how the child gives his or her evidence, the lawyer for the accused has the right to cross-examine the child. Corroboration of a child’s evidence is not required in order to obtain conviction of the accused. The judge must decide what weight should be given to the evidence and will direct a jury accordingly. In two recent decisions of the Supreme Court of Canada, it was held that the use of videotaped evidence54 and the practice of allowing witnesses below the age of eighteen to testify behind screens55in sexual abuse prosecutions do not violate the accused’s right to a fair trial under the Canadian Charter of Rights and Freedoms. No similar statutory concessions apply to child protection proceedings instituted pursuant to provincial legislation, although a judge of the Ontario Court (Provincial Division) has allowed a fifteen-year-old child to give videotaped evidence of sexual abuse allegations against her stepfather in child protection proceedings,56and the Ontario Law Reform Commission has advocated changes that go even further than the federal legislation.57Criminal prosecution of a parent, without the availability of support services for the family, may generate additional problems. For example, the child accuser may face hostility from other members of the family, or economic deprivation may be suffered by all family members, including the abused child, as a result of the conviction of an abusing parent. A fine or imprisonment may impair or undermine the abusing parent’s ability to provide financial support for his or her family dependants. Punishment of an abusive parent does not always coincide, therefore, with the best interests of the family or those of the abused child. Of course, abuse cannot go unchecked. It must be terminated. But whether this is better accomplished by invoking the Criminal Code or by resort to provincial child protection legislation is a matter that necessitates careful evaluation by the police and child protection agencies.

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2) Child Protection Proceedings58Child protection legislation exists in every Canadian province and territory.59Although the statutes vary in content, their fundamental character is consistent. Child protection statutes in Canada usually include declarations of the basic philosophy underlying the detailed statutory provisions. Some provinces, such as Alberta, British Columbia, Manitoba, New Brunswick, Ontario, and Quebec, have relatively detailed declarations that stress such matters as (1) family autonomy and the vital importance of parents assuming the responsibility for child rearing; (2) the adoption of the least restrictive and disruptive alternative when state intervention is necessary;

(3) the importance of continuity and stability for children; and (4) cultural and religious differences. In Ontario, the statutory "declaration of principles" in section 1 of the Child and Family Services Act60also includes a specific reference to Indian and native families by providing as follows:

Paramount purpose

1. (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

. . .

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

The dominant theme of declarations of purpose in child protection legislation reflects a distinct preference for children to be raised by their parents


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