Myths v. Facts in Camreta v. Greene
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For a printable .pdf version of this document, please click here.
In the 19th Century, Societies for the Prevention of Cruelty to Children had enormous power to intervene in the lives of families. They gained this power by exploiting horror stories. They would cite rare examples of children brutally beaten – sometimes complete with “before” and “after” pictures, and insist that only vast, unchecked power could prevent such horrors.
Yet these horror stories bore no resemblance to typical cases, which largely involved SPCCs accusing immigrant parents of neglecting their children – confusing those families’ poverty with neglect.[1] So it’s no wonder that the societies soon became known in poor neighborhoods simply as “the Cruelty.”
The arguments used by those opposing full Fourth Amendment rights for children make clear that little has changed. Once again they exaggerate the nature of what child protective services (CPS) caseworkers see and how often they see it. And they exaggerate what are, in fact, very minimal requirements for basic due process reflected in the wise decision of the Ninth Circuit Court of Appeals in this case.
That decision requires only that, before someone believed to be a victim of child abuse can be interrogated at school, any one of these conditions must be present:
● A parent has given permission OR
● Authorities have received a court order OR
● The danger is so great that there is no time to get a court order – in which case authorities are free to act without one.
The arguments against these minimal requirements are built on a series of interconnected myths – myths that are essential to justify the demand by the State of Oregon and its allies that the Supreme Court roll back the Fourth Amendment and give CPS workers and law enforcement the power to subject children to traumatic interrogations based on no more than, and these are their own words “speculation and hearsay.”[2]
MYTH 1: If authorities have to ask a parent’s permission before interviewing a child – even a parent who has not been accused of abuse – that parent will cover up for the alleged abuser, refuse to give permission and thwart the investigation. The argument is made largely in the context of mothers who are assumed to be protecting abusive fathers.
FACT: The overwhelming majority of parents have only one concern in these situations – getting to the bottom of the matter in order to ensure the safety of their child. That’s why 90 percent of the time, when parents are asked for permission they give that permission.[3] Indeed, in this very case, as soon as authorities got around to asking Sarah Greene permission to interview her daughter at a child advocacy center, she not only agreed, she tried to set up the appointment herself (only to be thwarted by those same authorities).
As the Columbia University Law School Child Advocacy Clinic, New York University School of Law Family Defense Clinic and others note in their brief:
Blaming mothers for the violence of fathers is a tired canard … Ignoring Sarah Greene’s ability to consent to the search in this case merely because of the suspected violence of her husband resurrects this outdated and unjust prejudice … In truth it is a parent who is usually the advocate who cares most about investigating a claim that her child has been sexually abused, and the person who is most likely to report potential abuse, [p.35].[4]
In those rare instances where a parent does not give permission, authorities can seek such permission from a judge. And in those even rarer cases where the child is in such immediate danger that there is no time to ask a judge, authorities are free to go ahead and interview the child entirely on their own authority.
MYTH 2: The process of asking permission from a judge is time consuming and cumbersome, and will make it impossible to protect children.
FACT: Usually, it can be done in a matter of hours; often by telephone. As the Pacific Justice Institute notes in its brief, any requirement to seek permission from a judge
“imposes only the slightest burden given the ready availability of magistrates in every jurisdiction at all times of day or night and the ability to obtain warrants by telephone or fax” [p. 13].
The requirements spelled out by the Ninth Circuit already are law in many states, either as a result of statute or court rulings.[5] There is no evidence that children in these states are less protected than children in the rest of the country.
Indeed, as the Greene family notes in its brief, “for more than a decade, the Second Circuit has required court orders or exigent circumstances for the removal of children from their parents’ custody. … Yet the states containing 97.4% of the Second Circuit’s population, New York and Connecticut” did not join other states in signing a brief in support of reducing Fourth Amendment protection for children [p. 54].
And again, when there truly is not time to get a warrant without endangering the child, there is no requirement to do so.
In contrast, in this case, the caseworker simply waited three days before even trying to interview the child – and during those three days he never bothered to seek permission from either a parent or a judge.
MYTH 3: Having an armed sheriff’s deputy looming over the interview, and questioning a young child in the way she was interrogated in this case are simply examples of “best practice” in child welfare.
FACT: This interrogation was a classic example of worst practice in child welfare. The badgering and bullying endured by the child we’re calling Sharon are reminiscent of the techniques that led to an epidemic of bizarre, false claims of “mass molestation” during the 1980s, the most notorious example being the McMartin Preschool cases.
In the case of the interview with Sharon, the deputy sheriff didn’t even switch on his tape recorder – a basic step that, among other things, reduces the chances that the child will have to repeat her story. And, in a case involving questioning a nine-year-old girl about the most intimate aspects of her life, the Oregon Department of Human Services sent a male caseworker, accompanied by a male deputy sheriff. No manual of “best practices” we’ve ever encountered has suggested that is a good idea.
Real best practice involves having one well-trained interviewer ask open-ended questions in a comfortable setting for the child, such as a child advocacy center. The interview is videotaped and others who need to hear what the child has to say can view the tape or listen behind one-way glass. None of that happened here until after the shoddy, two-hour interrogation at Sharon’s school.
And it’s worth noting again that as soon as an interview that truly conformed to best practices was offered as an option, Sharon’s mother gladly agreed to it.
For more about why this interview was an example of worst practice, see Myth 6.
MYTH 4: America is beset with an “epidemic” of brutal beatings, torture and sexual assault on children, and the scope and severity are so great that the kinds of due process protections we take for granted in other fields simply cannot apply to allegations of child abuse.
FACT: The problem of child abuse is serious and real. Even one child beaten, raped or murdered is one too many. But, as the Family Defense Center notes in its amicus brief the real “epidemic” is “an epidemic of over-reporting, over-investigation, over-intrusion into children’s and families personal lives” [p.3] that not only harms the innocent, but also makes finding the real rapists and murderers more difficult.
Although those opposing full Fourth Amendment rights for children repeatedly cite the number of “reports” alleging child abuse, they neglect to mention that in three-quarters of such reports CPS workers themselves say determine there was no maltreatment.[6] (This is true in spite of the fact that a caseworker does not have to prove anything to declare a case “substantiated;” she need merely check a box on a form – there is no objective hearing first. So it’s no wonder that the only study we know of to “second guess” these judgments found that caseworkers are two to six times more likely to wrongly “substantiate” a report than they are to wrongly declare such a report “unfounded.”[7])
Even among the “substantiated” reports, more than three-quarters involve allegations of neglect – which, in rare cases can be a severe form of maltreatment, but often is simply poverty.[8] In contrast, all forms of physical abuse from the most minor to the horrors conjured up by State of Oregon and its allies in support of their position represent less than 18 percent of all “substantiated” cases and sexual abuse represents less than ten percent.[9] (The total exceeds 100 because some children are victims of more than one kind of maltreatment).
The absurd extent of the epidemic of false reports is aptly illustrated by the case of Wallis ex rel. Wallis v. Spencer.[10] In that case, as the Family Defense Center notes in its brief, the report alleging maltreatment came from a mentally-ill relative of the alleged child victim
who claimed her nephew was going to be ritually slaughtered; this call was not summarily dismissed as a lunatic raving in part because the mandated Hotline caller, a therapist, had some ‘expertise’ in ritual abuse.
The epidemic of false reports and trivial cases overloads child protective services caseworkers, tempting them to take shortcuts. Not only does this endanger innocent families, it also means that, in cases of actual abuse, when a worker rushes to label the wrong person an abuser, the real abuser gets away. That’s one reason why a full measure of due process is needed not only to protect the innocent, but also to find the guilty.
As the Family Defense Center says in its brief, “massive unsubstantiated reporting ends up erring only on ‘error’s side’ it does not benefit children.”
MYTH 5: Child abuse is increasing.
FACT: Studies both of official reports[11] and scholarly examinations going beyond cases officially reported[12] both have found significant declines in child abuse – despite, or perhaps partially because of the fact that the requirements set forth in the Ninth Circuit Court of Appeals decision already are law in many states, either by statute or court ruling.
For a full discussion of the true nature and scope of child abuse, see the brief of the Family Defense Center and these NCCPR Issue Papers: Understanding Child Abuse Numbers and False Allegations: What the Data Really Show
In addition, neither the scope nor the heinousness of a crime are grounds to weaken the protections of the Fourth Amendment. As the Center for Individual Rights notes in its amicus brief:
Murder sprees are very serious, but the fact that many perpetrators may be clever in covering up evidence – attacking in places without witnesses, hiding the bodies, leaving no physical evidence – has never been thought grounds for suspending the guarantees of the Fourth Amendment. [p.32]
This brief also notes that it is bizarre for those seeking to weaken Fourth Amendment protections for children to claim that “an indisputably innocent individual should receive less protection under the Fourth Amendment than a potential criminal” [p.33].
MYTH 6: A child abuse investigation may cause anxiety of parents, but it is largely harmless for the child.
FACT: This may be the most pernicious myth of all. Interviewing a child about allegations of abuse is inherently traumatic. The younger the child, the greater the trauma.
Three of the most acclaimed child welfare scholars of the 20th Century, the late Anna Freud, Joseph Goldstein and Albert J. Solnit wrote that
Children react even to temporary infringement of parental autonomy with anxiety, diminishing trust, loosening of emotional ties, or an increasing tendency to be out of control. The younger the child, and the greater his own helplessness and dependence, the stronger is his need to experience his parents as his lawgivers, safe, reliable, all-powerful, and independent. ... When family integrity is broken or weakened by state intrusion [the child's] needs are thwarted and his belief that his parents are omniscient and all-powerful is shaken prematurely.[13]
Of course the trauma is only compounded when, as in Sharon’s case, the interview is coercive and intimidating – as can be seen by Sharon’s response, becoming extremely upset, physically ill and, ultimately, changing her story just to get the interview over with.
The problems are compounded when the interview is conducted at a child’s school. While commonly done and expedient for authorities, one expert has written that “Having police or child protection come to their school can feel embarrassing, violating, or frightening for some victims.”[14]
That’s why, as the brief from among others, the Loyola Civitas ChildLaw Center, the Clinical Social Work Association, Lawyers for Children, and the Children’s Advocacy Clinic notes, best practice guidelines from several professional associations discourage the practice [p.21].
Of course it often is necessary to interview children despite the inherent trauma. But that trauma, and the need to minimize it, is precisely why the decision on whether to conduct such an interview should be made by someone who loves that child - a parent - or, when that truly is not possible, by a neutral arbiter – a judge. The decision must not be left in the hands of caseworkers whose zeal or lack of training or, sometimes, simply the perceived need to get the interview over with and rush on to the next case, can encourage shortcuts at the expense of the child.
As the New York University School of Law Family Defense Clinic, Columbia University Child Advocacy Clinic, et. al. note in their amicus brief,
Child welfare caseworkers … sadly breach accepted best practices in such cases far
more often than they implement them. Child welfare caseworkers—while undoubtedly deserving of credit for doing important work toward the protection of children—simply are not qualified to decide when, absent emergency, constitutional expectations of privacy are outweighed by other interests [p.21].
more often than they implement them. Child welfare caseworkers—while undoubtedly deserving of credit for doing important work toward the protection of children—simply are not qualified to decide when, absent emergency, constitutional expectations of privacy are outweighed by other interests [p.21].
And as the Pacific Justice Institute writes in its brief:
The Fourth and Fourteenth Amendments provide the only nationally enforceable check against the arbitrary exercise of the great power CPS agents wield [p.4].
Such a check is even more important in child welfare cases than in other fields of law, because in child welfare cases, the entire system is shrouded in secrecy – in most states the fates of children and families still are determined at hearings closed to the press and the public.
Even some courts have become frustrated with the arbitrary, capricious exercise of power by some child welfare agencies. A California appellate court noted that the behavior of CPS in the case before it
… undermines confidence in the system. It damages the reputation of the Social Services Agency and causes parents to suspect the system is prejudiced against them, and social workers will use any excuse they can think of – whether credible or not – to deprive them of the custody of their children. It has to stop. [Emphasis in original][15]
Guaranteeing full Fourth Amendment rights for children is one way to help stop it.
The trauma is only compounded when a shoddy interview leads to errors which, as in Sharon’s case, lead to the extreme distress caused to a child by being torn from everyone she knows and loves and consigned to foster care – as happened in this case. The trauma is compounded further when a child is subjected to a highly-intrusive medical examination without her mother there to comfort her through the process – as also happened in this case.
As the Loyola et. al brief notes, the kind of worst practice seen in this case does not just harm innocent families, it also reducing the chances of finding and convicting the guilty. They write:
Ineffective forensic practices in the investigation of sex abuse such as those used here, however well-intentioned, are harmful to children both in and of themselves,
and because they impede the successful prosecution of perpetrators of abuse. [p.4].
and because they impede the successful prosecution of perpetrators of abuse. [p.4].
The brief cites a leading expert who has written:
“[B]ad interviewing can lead to serious consequences. These may include eliciting false
allegations, putting children and families through unnecessary stress, decreasing a child victim’s credibility in court, contaminating facts, reducing probability of conviction, draining resources through unsuccessful trials and investigations, and reducing resources available for legitimate abuse cases.”[16]
allegations, putting children and families through unnecessary stress, decreasing a child victim’s credibility in court, contaminating facts, reducing probability of conviction, draining resources through unsuccessful trials and investigations, and reducing resources available for legitimate abuse cases.”[16]
To characterize what happened in this case as “best practice” not only adds insult to Sharon’s mental injuries, it also is an insult to thousands of dedicated trained professionals across the country who go about interviewing children the right way.
[1] See Generally, Linda Gordon, Heroes of Their Own Lives, (Viking: 1988).
[2] Brief for Petitioner, Bob Camreta, Camreta v. Greene, Alford v. Greene, Nos. 09-1454 and 09-1478, p.27, available online at http://bit.ly/dHGpRR
[3] Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs
of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413 (2005)
of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413 (2005)
[4] Citing Jan Breckenridge and Eileen Baldry, Workers Dealing with Mother Blame in Child Sexual
Assault Cases, 6 J. of Child Sexual Abuse 65 (1997)
Assault Cases, 6 J. of Child Sexual Abuse 65 (1997)
[5] For examples see the brief of the Columbia University Law School Child Advocacy Clinic, New York University School of Law Family Defense Clinic et al., pp. 21, 37.
[6] U.S. Department of Health and Human Services, Child Maltreatment 2009, available online at http://www.acf.hhs.gov/programs/cb/pubs/cm09/cm09.pdf.
[7] Study Findings: Study of National Incidence and Prevalence of Child Abuse and Neglect: 1988 (Washington: U.S. Dept. of Health and Human Services, National Center on Child Abuse and Neglect, 1988), Chapter 6, P. 5.
[8] For details on the widespread confusion of Poverty with Neglect see NCCPR Issue Papers 5 and 6 available online here: http://nccpr.info/issue-papers/
[9] Child Maltreatment 2009, note 6, supra, p.23.
[10] 202 F. 3d 1126 (9th Cir. 2000).
[11] David Finkelhor, et. al, (2010), Updated Trends in Child Maltreatment, 2009, Crimes Against Children Research Center, University of New Hampshire, available online at http://www.unh.edu/ccrc/pdf/Updated_Trends_in_Child_Maltreatment_2009.pdf
[12] Sedlak, A.J., et. al., (2010). Fourth National Incidence Study of Child Abuse and Neglect (NIS–4): Report to Congress. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families. Available online at http://www.acf.hhs.gov/programs/opre/abuse_neglect/natl_incid/nis4_report_congress_full_pdf_jan2010.pdf
[13] .Joseph Goldstein, Anna Freud, and Albert J. Solnit, Before The Best Interests of the Child (New York: Free Press, 1979) pp.9, 25.)
[14] Tom Plach, Investigating Allegations of Child and Adolescent Sexual Abuse (Charles C, Thomas, Publsiher: 2008)
[15] Jonathan M. v. Superior Court, No. G043674, 8/27/10, 2010 WL 3367683 (Cal. App. 4 Dist.)
[16] Lindsey E. Cronch, et al., Forensic Interviewing in Child Sexual Abuse Cases: Current Techniques and Future Directions, 11 Aggression & Violent Behavior 195 (2006)
