On the first day of elementary school each year, our teacher displayed her paddle, which was wooden with a short, solid handle. The paddle portion had holes drilled through its core. Most school years, someone (always a boy, in my recollection), wound up being paddled. Times have changed for most students. But because a handful of schools in North Carolina still employ corporal punishment, questions continue to arise regarding when such punishment crosses the line between permissible school discipline and unlawful assault. Continue reading
Tag Archives: child abuse
[Editor’s note: This post was originally published on the SOG’s civil law blog, On the Civil Side. Nonetheless, given its coverage of Confrontation Clause issues arising from a criminal case, we thought that it would be of interest to many of our readers.]
Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue reading →
Last week, I blogged about the application of the private search doctrine in child pornography cases. I noted that one recent case began when a computer repair technician contacted police to report child pornography on a computer he was repairing. A story about the case stated that “North Carolina law requires computer technicians to report any such images found during the course of their work to local law enforcement or the National Center for Missing and Exploited Children.” I didn’t know that, so I did some research. Continue reading →
In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions. Continue reading →
[Update, May 2016: In this post on the SOG’s civil blog, Sara discusses two new appellate cases concerning the definition of abuse in the child discipline context.]
[Editor’s note: Today’s post is by Sara DePasquale, a relatively recent addition to the SOG faculty. Sara works in the areas of juvenile law and child welfare, and we are delighted to welcome her to the blog.]
Last Tuesday, Minnesota Vikings running back Adrian Peterson pled no contest to misdemeanor reckless assault after being charged in September with felony child abuse for disciplining his 4 year old son with a switch. Since the charges, he has been on the NFL “Commissioners Exempt List” and unable to play. Nike terminated his contract on Tuesday, and his future with the NFL remains uncertain. Continue reading →
Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Continue reading →
Former Penn State defensive coordinator Jerry Sandusky has been charged with sexually assaulting eight young boys between 1994 and 2009. The principal New York Times story is here. ESPN’s coverage is here. The grand jury report on the matter is here. Sandusky allegedly met each of the boys through Second Mile, a charity that he founded for underprivileged children. The state contends that he took the boys to various Penn State football events, and that some of the sexual assaults took place in the Penn State football complex. News reports indicate that in 1998, the mother of one of the boys reported inappropriate contact between Sandusky and her son to campus police. The ensuing investigation apparently resulted in a taped admission by Sandusky, but the district attorney declined to prosecute. A parallel investigation by Child Protective Services failed to substantiate the charges.
In 2002, according to the grand jury report, a graduate student saw Sandusky anally raping a naked 10-year-old in the showers at Penn State. The graduate student reported what he saw to head coach Joe Paterno, who in turn reported it to athletic director Tim Curley. The graduate student then met with Curley and Penn State Senior Vice President for Business and Finance Gary Schultz, who oversaw the campus police, to discuss what he saw. Nothing that I have read suggests that the graduate student, Paterno, Curley, or Schultz reported the matter to any law enforcement agency at any time. Even after the incident, Sandusky – who retired in 1999 but remained a professor emeritus – was allowed on campus and in the football complex, though his access may have been curtailed to some extent. The university continued to promote, and to host at a satellite campus, Sandusky’s football camps for high school boys.
Curley and Schultz have been charged with failing to report the assaults and with perjuring themselves before a grand jury. (They testified that the graduate student reported only having seen inappropriate horseplay between Sandusky and the child.) Both have stepped down. Paterno is not a target of the investigation, apparently because he reported the matter up the chain at the university. Sandusky, Curley, and Schultz all maintain their innocence and are presumed innocent.
The case raises a number of legal issues, but perhaps the most controversial issue is whether Curley and Schultz had a duty to report, assuming arguendo that they were, in fact, aware of the abuse. Schultz’s lawyer has suggested that he did not. The relevant Pennsylvania statute provides in part that “[a] person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report . . . when the person has reasonable cause to suspect . . . that a child under the care, supervision, guidance or training of that person or of an . . . institution . . . with which that person is affiliated is a victim of child abuse.” Curley and Schultz could argue that they do not “come into contact with children” as part of their work. While children are sometimes present on Penn State’s campus, they could argue that such presence is incidental, and not sufficient to bring them within the scope of the statute. This article explores that argument, and suggests that the degree of connection, if any, between Sandusky’s charity and Penn State may be relevant. Of course, whether Curley and Schultz had a legal duty to report is a separate question from whether they had a moral obligation to do so.
Had the matter arisen in North Carolina, the relevant statute would have been G.S. 7B-301, which imposes a duty to report to DSS on “any person or institution who has cause to suspect that any juvenile is abused, neglected, or dependent, as defined by G.S. 7B-101.” It does not appear that Sandusky was the custodian or caretaker of the victim of the alleged shower assault, so the assault likely does not meet the legal definition of “abuse” and so likely would not have triggered a duty to report. Although the General Statutes impose a number of other reporting requirements – for example, on school principals, see G.S. 115C-288(g), and on health care providers, see this post – I’m not aware of any that would apply to university administrators on the alleged facts of the Sandusky case. If I am missing something, please let me know.
This case first came to light several days ago, and the anger surrounding it has only grown since. It is hard to imagine Paterno surviving it. It is hard to imagine the university president – who apparently was briefed to some extent on the allegations and on the university’s response to them – surviving it. It raises serious questions about the role of big-time sports on university campuses.
One of the clipping services to which I subscribe recently highlighted People v. Assad, __ Cal.Rptr.3d __, 2010 WL 4035491 (Cal. Ct. App. 3 Dist. Oct. 15, 2010). The defendant in Assad was a Syrian man. He tied his twelve-year-old son to his bed and beat him repeatedly and severely with a hose and wooden stakes. As a result, he was charged with torture and other crimes. Several witnesses testified that in Syria and in the Muslim religion, it is permissible to “hit” or “beat up” a child in the course of discipline. It appears that the defendant offered this evidence in an attempt to negate the intent element of the crimes with which he was charged. The defendant was convicted and the admissibility of the evidence wasn’t at issue on appeal, but the case did get me thinking a little bit about the relevance of cultural differences in criminal cases. How would such evidence be treated in North Carolina?
The only North Carolina cases that I could find involving cultural evidence were capital cases in which cultural factors were offered in mitigation. State v. Robinson, 336 N.C. 78 (1994) (noting that a defense witness “testified [in mitigation] that defendant was a member of an inner-city culture where illegal activities are the accepted standard”); State v. Syriani, 333 N.C. 350 (1993) (noting that the jury found as a mitigating circumstance that “the defendant was raised in a different culture”). That strikes me as a pretty different issue than the one raised by Assad.
Closer to the mark is a federal case from Virginia. In United States v. Le, 2009 WL 2947370 (E.D. Va. Sept. 14, 2009) (unpublished), a defendant charged with mailing a threatening letter plead guilty, then sought to withdraw his plea. In assessing the motion to withdraw the plea, the court noted that the defendant “offered evidence in support of his motion . . . that, in [his] culture and in his language, the communication would not be threatening” and stated that “[t]his kind of evidence is generally regarded as being potentially relevant to the issue of mens rea in a criminal proceeding.” As noted above, that seems to have been the point of the evidence in Assad. I haven’t done enough research to know if the Le court is correct in saying that cultural evidence is “generally regarded” as relevant, but certainly there are a number of cases in which such evidence has been admitted. See Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911 (2007) (collecting cases and materials on the “cultural defense”).
There may be charges in North Carolina to which such evidence would be relevant, but if the Assad case had arisen here, I doubt that the cultural evidence would have been admissible. The defendant would likely have been charged with felony child abuse inflicting serious injury, G.S. 14-318.4. The elements of that offense are that (1) a parent or caregiver (2) intentionally inflicts (3) serious physical injury on a child. Cultural norms appear to be irrelevant to the intent element: it may be acceptable in a particular culture to inflict serious physical injuries on children in the course of discipline, but that simply has nothing to do with whether a particular injury was inflicted on purpose. By contrast, the California torture statute at issue in Assad requires that the defendant act “for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” Cal Penal Code § 206. Cultural norms may well be relevant in determining whether a defendant acted with any of those mental states.
If folks have experience litigating cultural differences in criminal cases, or know of court decisions on point that I’ve missed, please chime in.