Reader viewpoint: Bridging the disconnect of facts and law
By Sarah Yacoub, attorney at Equal Justice Inc. and Hudson resident
A most frustrating circumstance as victim advocate is having facts that establish a need, law that provides a remedy to the need and not being able to bridge the gap to get relief. For example, in Wisconsin, rape that results in a child is grounds for the rapist's termination of parental rights. However, as reported by RAINN, the nation's largest anti-sexual violence organization, out of 1,000 rapes, 995 perpetrators will walk free; 230 will be reported to police. Forty-six reports will lead to arrest. Nine cases will get referred for prosecution. Five cases will result in felony conviction; 4.6 rapists will see the inside of a jail cell. Sometimes it's an issue of a parent not wanting her child to know she or he was the product of rape. Whatever the reason, it's a situation where a rapist abuser can terrorize the survivor and child in family court and the grounds for making it stop will never be spoken in the courtroom.
Emotional abuse of or emotional damage in children gives rise to the ultimate disconnect between facts that establish need and law that provides relief. Wisconsin Statute section 948.04 makes it a felony for a caregiver or parent to cause mental harm to a child. Wisconsin Statute section 813.122, through section 48.02(1)(gm), allows child abuse restraining orders for emotional damage, defined as "harm to a child's psychological or intellectual functioning...[and] shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development."
The problem is bridging the gap between facts and law: the officer who arrives on scene to a domestic abuse situation where the children are clearly being traumatized can't arrest for emotional abuse without the expertise to opine that it's in fact emotional abuse. Seems ridiculous where most any lay person can figure out that strangling a child's mother in his or her presence while threatening to burn the house down with her and the kids inside is traumatic abusive behavior.
In the case of a child abuse restraining order, short of a mental health expert testifying to the statutory definition of emotional damage, it's an uphill battle abuse survivors can expect to lose. As a result, while the abuse survivor has left the abuser, she can expect the local family court to send her children right back into literal hell without her protection.
What can be done? For one, the Wisconsin legislature can amend its child abuse statutes to
mirror that which the research undeniably and repeatedly tells us is true. In 2014, the Centers for Disease Control and Prevention released a report titled, "The Adverse Childhood Experiences Study" which details the devastating lifelong results of childhood exposure to chronic stress and abuse.
The legislature can amend the statutory definition of "emotional damage" to allow bench officers to determine its existence based not only on hyper-technical psychological terms but life experiences. We can amend our statutes to encompass the ACE research and broaden the factual circumstances that substantiate emotional abuse or damage. We can empower our bench officers to not need an expert to tell them they're looking at a duck, where a duck is walking, talking and clearly presenting as a duck before them in open court. We can write legislation that recognizes that an abuser who abuses one child has a propensity to abuse or is more likely than not going to abuse other children in the home. We can write legislation that recognizes that someone who abuses their intimate partner is more likely than not going to abuse the children as well.
We are failing children where we are not equipping our law enforcement with the tools they need to police and effectively enforce felony child abuse laws. We are failing children if the law will only protect them if they're rich enough for access to mental health treatment, fortunate to have a parent who can or will take them to treatment and lucky enough to have a therapist who will go to bat for them in court.
Unfortunately, the combination of the three is exceedingly rare in our community. In failing our children we are failing our community as child abuse erodes the fabric of our society and costs us billions nationally every year.
We can bridge the gap between facts that give rise to the need to protect children and the law
that is intended to provide relief. To do so, we need it to be a priority of our legislators, as evidenced by their legislative efforts and the local justice system, as evidenced by their trainings, certifications and policies. We can do better. Our children are counting on it.