Changing Florida Law
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is .001:1; in Florida the foster care population (DHHS, 2002) compared to the state population (Census Bureau, 2000b) generates a ratio that is double the national rate at .002:1. Compared to New York, Florida's foster care population to state population ratio is basically equivalent. California's foster care population (DHHS, 2002) to state population (U.S. Census Bureau, 2000c) ratio is nearly three times greater than the national rate at .003:1. Admittedly these numbers, while interesting for looking at trends, are likely statistically insignificant, although statistical significance was not assessed for the purposes of this policy analysis paper.

Nationally, there were nearly 275,000 children who were removed from their homes as a result of reported abuse. In Florida, a total of 6,636 children were removed (DHHS, 2001b). In 1997 there were 42 reports of child abuse per 1,000 children in the U.S. and of the 42 reports, 14 of those cases were substantiated; that is 67.4% were not (DHHS, 1997b). By 2001 the number of unsubstantiated cases had decreased to 59.2% (DHHS, 2001a, Reports section).

On a national level, when child abuse reports are substantiated civil courts generally take action and develop a course of treatment for abused children, which can also mean parental rights may be terminated (DiNitto and McNeece, 1997). Criminal courts may or may not get involved in a child abuse case as there are no specific set of national criteria that delineates which cases are to be prosecuted and which cases are not (Stroud, Martens & Barker, 2000). The same problem exists in Florida; in substantiated cases of abuse parental rights can be terminated without criminal charges or criminal investigations (Proceedings, 2004, § 39.801-39.817).

When reports of child abuse are taken in Florida, DCF launches an investigation that can take up to 60 days to complete; if during the 60 days, abuse is substantiated a report is made to local law enforcement (Proceedings, 2004, § 39-301 (16)). Next, Florida statute indicates that law enforcement, not DCF, determines whether or not a
criminal investigation is initiated (Proceedings, 2004, § 39-301(2c)). Lastly, if a criminal investigation is initiated, joint investigations between DCF and law enforcement are mandated "whenever possible" (Proceedings, 2004, § 39-301 (17)). In the simplest sense, criminal investigations (and by default criminal prosecutions) are optional, even in cases where evidence is sufficient to remove children from homes. It would appear that Florida, much like the rest of America, relies heavily on civil courts to deal with the dynamics of child abuse.

It seems that justice could best be served for abused children via criminal proceedings (as opposed to civil ones that are largely used now). "Due process" and "proof beyond a reasonable doubt" are standards within criminal proceedings that differ significantly from the "best interests of the child" and lesser "degrees of certainty" standards used in civil actions (Kirst-Ashman & Hull, 2001, pp. 430-431). In essence, abused children (who are victims of crime) do not enjoy the same legal protections as adults. The legal system "has stopped short of granting children the same constitutional guarantees as adults…children received a 'raw deal' in trading rights for rehabilitation" (DiNitto and McNeece, 1997, p. 237). In Florida for example, an appellate court ruling called a slap in the face to a six-year-old child "a privileged battery in the course of discipline" (Lauer, 1999, p. 1A). In response to the ruling the president of Florida's Children, Jack Levine, was noted to wonder "why grown-ups aren't allowed to slap one another without criminal charges filed, yet it's OK to slap your kid" (Lauer, 1999, p. 4A)?

It would be conjecture to suppose why it is that law enforcement would decide not to investigate abuse cases that DCF has already determined warrants state intervention. One problem with allowing local law enforcement to independently determine whether or not an abuse case "warrants" (Proceedings, 2004, § 39-301(2c)) criminal investigation is that without a criminal investigation criminal charges cannot be filed and the State Attorney will not be given the chance to prosecute a crime. The other issue is that if children are removed from the home, and there are no criminal proceedings, the children (and their parents) will get secondary civil court protections (as compared to higher standards in criminal proceedings) when DCF acts.

There is evidence that the prosecution of child abuse cases is a difficult and arduous task (Davies, Glaser & Kossoff, 2000; Stroud, Martens & Barker, 2000; Zajac, Gross & Hayne, 2003), possibly explaining why many times the pursuit of criminal prosecution is avoided. There is also evidence that prosecution of child abuse cases has at least as good an outcome as the prosecution of other crimes (Cross, Whitcomb & DeVos, 1995;
Cullen, Smith, Funk & Haaf, 2000; Martone, Jaudes & Cavin, 1996). In other words, convictions, confessions, sentences, pleas, and acquittals in child abuse prosecution cases correlate similarly to other criminal prosecutions.

The general public, who will be instrumental in promoting legislative changes to Florida law, fails to realize that very few child abuse cases make it into a criminal court (Cross, Whitcomb & DeVos, 1995). Cross and colleagues (1995) point out, however, of those cases that do make it to trial, the majority (as many as 94%) end with guilty pleas or convictions; a finding that has been duplicated elsewhere (see Cross, Walsh, Simone & Jones, 2003).

Interestingly, finding aggregate data on the number of child abuse cases that were/are prosecuted in the U. S. and Florida, is virtually impossible. Those numbers do not exist. According to staff attorney Danica Szarvas-Kidd, who works with the American Prosecutors Research Institute and the National Center for Prosecution of Child Abuse, the issue of quantifying child abuse prosecutions is problematic:

The problem is that child abuse cases are prosecuted under many different statutes, ranging from computer crimes to battery to sexual assault. Many crimes of child abuse fall under many different statutes, encompassing a wide variety of crimes. There is no general crime of "child abuse." Also, there is no government agency who has the time or resources to sort through all of these cases and come up with statistics for child abuse only…there are no statistics on the prosecution of child abuse per se (Personal communication, October 15, 2004).

Even so, there is a long history of prosecuting child abuse cases in the U. S. (see Bishop, 1856 and 1865 as cited in Myers, Diedrich, Lee, McClanahan Fincher & Stern, 1999). That is to say that child protection via prosecution is not a new concept. The problem, according to Myers et al. is that tracking state prosecutions of child abuse is difficult because a central database of state cases does not exist (and state cases do not have the force of establishing legal precedence), however appellate court cases (which do establish legal precedence) are easier to track because those data are "indexed and published" (p. 208).

The Florida investigation and prosecution of child abuse case law, as it is being proposed here, is not too much to ask of a state that already does as much for all of its reports for cases of "institutional child abuse."  In institutional child abuse current Florida law mandates that the State Attorney's Office be involved in the investigations and justify decisions to either prosecute or not prosecute via a written report (Proceedings, 2004, § 39-302).

It is noteworthy that Florida does not have the same requirement with individual cases of child abuse. Adding to the notion that a change in Florida law is reasonable, is the fact that Florida law used to mandate that the State Attorney's Office, not local law enforcement, investigate every DCF report of child abuse, and then generate a written report that justified decisions not to prosecute (Proceedings, 2000, § 39.301(18)). It is unclear why the 2000 law changed.

In review of current Florida law, several rhetorical questions can be directed to the issue of equality. Why does the law make criminal investigations optional in individual cases of child abuse, and then make criminal investigations mandatory with institutional cases of child abuse? Does this mean that Florida believes that when parents abuse their kids they should be treated less severely (or be assessed less critically) than if state sanctioned personnel abuse kids? Why does the law voluntarily involve local law enforcement investigations in individual cases of child abuse but then make it mandatory for the State Attorney to be involved in institutional child abuse cases? Is Florida saying that some abused children should be protected more than other abused children? Why can children be removed from their parent's custody via civil courts that have lower standards of proof, whereas higher standards exist in criminal courts that are not needed to terminate parental rights? Does this mean that Florida considers parental rights secondary to children's rights, or vice versa? Furthermore, when adults are battered (or otherwise assaulted) the principle of due process takes precedence, yet when children are battered (or otherwise assaulted) the principle of a child's best interests takes precedence? Does this mean that children are being denied equal protection under the law (a U.S. Constitution Fourteenth Amendment Equal Protection Clause violation)?

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