When ‘Hitting’ a Child is Not Abuse…
Quite often I am asked to represent a parent who has been accused of physically abusing their child. The report often comes in like this: the child tells some one at school or their therapist that mommy or daddy “hits” them, sometimes not even offering much more than that. Sometimes the allegations are more graphic: “Daddy hit me in the face” or on the buttocks etc. ( I have had a few kids allege their father tried to ‘strangle’ them as well. But that is a topic for another day.) Usually these allegations come out of the blue (meaning there is no history of such claims). And, at least in these cases, there is absolutely no physical injury to corroborate the allegations. (In the cases where some physical injury is reported, at least initially by the school, therapist or doctor, more often than not the cause of the injury is disputed by the parents and are usually gone by the time a social worker sees the child).
Now, before I go any further and before readers begin accusing me of being a monster because I don’t think children tell the truth or because I choose not to believe these kids, I want to make it absolutely clear that in fact that is NOT at all what I am saying. And further, in my 21 years of handling DCF cases, I can assure you I most definitely have believed children’s claims of being physically abused, and in a number of cases made sure they never went back to that home again. But what I am suggesting is this: often, when a child says his parents ‘hit’ him, (a) he may not understand what the word actually means or perceives the action as worse than it really was, and probably should have used a different word to describe what his parent(s) did to him, such as ‘slap,’ ‘tap,’ ‘whack,’ or ‘touch,’ none of which would likely constitute abuse by DCF’s regulations and current case law; (b) the DCF investigator, by asking a child whether his parents ‘hit’ him or her–a blatantly leading and improper question–is actually encouraging the child, who often wants to please, to agree to something that is not true; (c) the investigator, when he hears the child say he was ‘hit,’ wrongly assumes that the conduct was worse than it really was and constitutes abuse as that term is defined by the Department’s regulations; and/or (d) there are those cases in which children do deliberately lie because they are angry at their parent(s) or have serious mental health issues.
Merriam Webster’s Dictionary defines “hit” as (a) to reach with or as if with a sudden blow; (b) to come in quick forceful contact with; (c) to strike [something] with an object…so as to impart or redirect motion; (d) to deliver (something, such as a blow) by action etc. Importantly, the word ‘hit’ does not appear in the Department’s regulations defining abuse and neglect. Moreover, DCF defines ‘abuse’ as “the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury…” Furthermore, case law makes it clear that in order for their to be substantial evidence that a caretaker abused a child there must be evidence of physical injury beyond temporary redness (like bruises, cuts, scratches and welts).
The point is this: too often, when mandated reporters and DCF hear a child claim that they’ve been ‘hit’ by their parent(s), false assumptions are made and incorrect conclusions are drawn. There is a certain ‘hysteria’ factor generated whenever that word is used. What needs to be made clear, if not by the mandated reporter before they file, than during the ensuing DCF investigation–best by a lawyer who understands the law and who can clearly explain it to the investigator–is exactly what the child meant when he used that word (was it really just a slap, a whack on the arm or butt or even a spank over clothing?) and whether, perhaps the child made up the story because he was mad at his parent(s). (I have had plenty of those cases.) Look at DCF’s definition of abuse: it clearly states that the level of force has to be such that the action actually caused physical injury or created a ‘substantial risk of physical or emotional injury.’ Too often that is simply not the case. In many instances, parents merely slapped or grabbed their child’s arm in an effort to get their attention or to move them along, or even slapped their face (not abuse) to scold them or get their attention, or spanked their butt (not abuse) or ‘dope-slapped’ them. But sloppy investigators or ones who are predisposed to believe children over parents (or ones who cling to the fantasy that children never lie) will nonetheless support a 51A for physical abuse, or, increasingly, for neglect.
A final comment, in case some people still think I am being unfair to children…when a parent called me once seeking representation, and after she told me that she only intended to whack her kid’s chest with a belt but somehow the belt buckle hit the kid square in his neck really hard I told her that I couldn’t help her and that next to the definition of abuse should be a picture of her with her belt. Cheers.
Call me if you need help! Jim (617) 650-4520.