Wednesday, May 05, 2010

Caution MY ASS


Part II: 'Erring on the side of hidden harm'
April 27th, 2010 by Robert Franklin, Esq.

This follows up on my first piece about David Heleniak's fine article in the second issue of the journal Partner Abuse. As I said I would, I tried to find an online link to the article, but there's not one. But David did provide me this link to an earlier article that appeared a little over two years ago (Counterpunch, 10/20/07 ).

In my first piece I recounted how and why courts tend to, in their words, "err on the side of caution" and why that so often means erring "on the side of hidden harm," in Heleniak's. Put simply, there aren't any consequences for a judge who issues a TRO, even on the slimmest of pretexts. But woe betide the judge who refuses to issue one if the mother or the child is later harmed. That's the stuff of banner headlines and judges looking for a new job.

The deep, longlasting harm to children of having a parent taken from them is seldom if ever noticed by the press and is never followed by calls for the judge's electoral head. That doesn't mean the harm to children isn't real or serious; it often is. It just means that it's hidden away from public view behind a veil of public discourse that, ironically, is all about children's welfare.

But there's another aspect of "erring on the side of hidden harm" that promotes the same result - "defensive social work." That's the phrase coined by researcher Paul Chill and it's similar to "defensive medicine." That is to say, action is often taken "for the record" to ensure that the case file demonstrates an activist mindset on the part of the case worker. That often means taking children from parents for reasons that may not bear close scrutiny, but, as with the judges, few if any caseworkers ever lose their jobs for taking children. It's the ones who fail to do so in cases of later child abuse or neglect who get into trouble. As Chill says,

The people who make removal decisions don’t see a child having a panic attack at 3 a.m. because he is suddenly alone in the world. Or slamming his head against a wall out of protest and desperation. Such experiences may not only cause ‘grief, terror, and feelings of abandonment’ but may also ‘compromise’ a child’s very ‘capacity to form secure attachments’ and lead to other serious problems.

Exactly. And it is Heleniak's point that few others see those responses either. The judges don't see it, the case workers don't see it, the press doesn't see it and neither do the rest of us. Nor are they present later in the child's life when he/she fails time and again at romantic relationships, business relationships, friendships, etc. Out of sight, out of mind.

And the phenomenon is far from rare. Chill cites 2001 statistics from the U.S. Department of Health and Human Services that some 33% of children who were taken from their parents in that year had suffered no abuse or neglect at all. And that's given a very broad definition of abuse and neglect.

Another way in which children are separated from their parents (actually their fathers in most instances) is via the domestic violence TRO which may or may not be desired by the alleged victim. Not long ago I reported on the case of a Washington State woman whose husband was arrested for domestic violence based on the entirely erroneous observation of a passing motorist. In vain did the woman (and her husband) try to convince the ADA, the judge and other court personnel that no DV had occurred. Restraining orders were issued anyway with the result that the man not only couldn't see or speak to his wife, but he couldn't see or speak to his children either.

It's at that precise instant that the seemingly invariable desire by the state to expand its power intersects with feminism's false concept of domestic violence with disastrous consequences for the rest of us. One canon of feminist DV law is that a woman will often deny abuse out of some misguided effort to remain with her abuser. Doubtless that may occur, but the sensible (not to say, constitutional) way of dealing with such a situation would be for a judge or jury to hear evidence and make a ruling. The approach taken, however, is to treat all women as incapable of acting in their own self-interest. It's one thing to say that sometimes DV victims will want to stay with their abusers; it's quite a different one to say that they all do. Once again the interests of the state and the interests of radical feminism coincide, with our individual rights coming out the loser.

What happened to the woman and her husband in Washington was mandatory, and the same is true in New York, about which Harvard Law professor Jeannie Suk writes. There, even cases that involve no actual violence and no injury can nevertheless "trigger application of a mandatory domestic violence protocol." That means the issuance of a Temporary Order of Protection as a condition of bail or pretrial release. (That's essentially what happened in the Washington case.) So a man who may have done nothing violent or injurious is put in jail and offered a deal; he can stay in jail until trial or he can get out and be subject to the TOP. Violation of the TOP of course is a criminal offense and will land him back in jail.

If there are children in the family, the TOP will prohibit contact with them unless the family court rules otherwise. Later, at the plea-bargaining time, the ADA bootstraps the temporary order into a final one. The father will be offered an extremely lenient sentence such as no jail time or even adjournment in contemplation of dismissal, but there's a catch. He has to also agree to a final order of protection which means no contact with his wife or kids for some substantial period of time, usually years.

That's what Suk calls de facto divorce, but in some obvious ways it's worse than that. No order of divorce is ever made, no visitation schedule is worked out, no support payments ordered, but the parent who's the subject of the TOP, again usually the father, is in fact out of his children's lives and that of his wife. Most divorced parents still communicate and most divorced fathers still get to see their kids at least occasionally, but fathers under a TOP can do neither.

And again, none of that may be desired by either husband or wife, but with the state involved, it's the best they can do. And just so we don't forget, the vast majority of domestic violence (i.e. in which there's actual violence) is either entirely non-injurious or results in injuries so slight they're easily overlooked in the course of everyday life.

But the state criminal system "errs on the side of caution," which Heleniak rightly points out means erring "on the side of hidden harm."

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