Bioethics Forum Essay
Our System for Reporting Child Abuse is Unethical
A court case over alleged false accusations of child abuse began recently in Florida. The case concerns Maya, the subject of a recent documentary that depicts a powerful pediatrician specializing in identifying child abuse who, with other clinicians and the Florida Department of Children and Families, wielded complete power over Maya and her parents, forcing them to be separated because of alleged child abuse. Similarly, the NBC News podcast “Do No Harm” chronicles the stories of two Texas families who lost custody of their children after pediatricians reported child abuse but were incorrect. These are not isolated incidents. The system of mandatory reporting of child abuse is rife with ethical problems and can lead to unjustified custody loss.
More than three million children a year are involved in child abuse and neglect cases in the United States. Bias is widespread in the process of reporting, investigating, and confirming these cases. Black children are reported at about twice the rate of white children and their cases are more likely to be investigated, confirmed, and brought to court. Black children are more likely to be removed from their families and to be removed for longer periods. Even so, cases involving Black children are less likely to be substantiated, indicating that Black families face more false claims. In one glaring example of disparate treatment, contrast the cases of two women, one Black and one white, whose breastfed babies died of malnutrition. Tatiana Cheeks, who is Black, was charged with homicide. Jillian Johnson, who is white, not only was not charged with a crime, but she started a nonprofit and could openly discuss breastfeeding failure.
In addition to bias, there are other important bioethical issues in child abuse pediatrics. Family separation causes severe harm. Temporary custody loss harms children and parents and should be deemed a cruel and unusual punishment in most cases. It should carry a high burden of proof because it is sometimes imposed based on false charges and mistakes.
The system for reporting and investigating child abuse should be reformed. Child protective services and mandatory reporters of child abuse in most states enjoy generous immunity from criminal charges and civil claims. The effect is a noteworthy exception to the legal standard of innocent until proven guilty.
There are inherent problems with mandatory reporting. First, child abuse is not a medical diagnosis. It is a legal finding. Medical diagnoses include injuries and bruises, which can be the result of abuse or other causes. Child abuse pediatricians’ training is focused on the legal finding. These doctors often become so suspicious of abuse that they ignore the many other possible explanations for injuries and bruises, including accidents and certain diseases. Accusations of medical neglect and abuse can interfere with parents’ ability to seek multiple opinions on the causes of their children’s complex medical problems.
In many states, including New York, where I live, mandatory reporters face penalties for failing to report suspicion of child abuse. These penalties lead to overreporting for fear of criminal charges and civil liability. And there is immunity for those who report in “good faith,” i.e., with honest and fair intentions. It is very difficult to counter claims of good faith, since that is a subjective concept. Any child abuse pediatrician or social worker may feel they entered the field in good faith and that all their work is in good faith when, in fact, they have made false accusations.
The system of reporting child abuse should protect families from overreach by social services, child abuse pediatricians, the private companies that often operate through government and hospital contracts. Some refer to this system as the poverty industrial complex. State laws should comply with the U.S. Constitution. At minimum, they should protect people against unreasonable search and seizure, avoid cruel and unusual punishment, ensure equal protection under the law, and ensure that parents are read their rights. Being read their rights includes being informed that child abuse pediatricians might use their words against them legally.
I recommend doing away with mandatory reporting of child abuse. This would decrease the need for immunity and reduce false accusations. “Faced with confusion around mandatory reporting, many mandated reporters think it’s best to just report anything they think might be violence or abuse,” states the group Mandatory Reporting Is Not Neutral, one of several advocates for eliminating the practice.
Those who favor mandatory reporting would argue that false accusations are not as problematic as cases of unreported child abuse. But that is a false comparison. There is no evidence that legitimate cases of child abuse and neglect would be underreported without mandatory reporting. But eliminating mandatory reporting would reduce false accusations. Anyone can report child abuse and other serious crimes. While mandatory reporters work with children and therefore may be able to notice abuse, the mandatory aspect of making a report is not necessary.
In addition, I recommend eliminating the subspecialty of child abuse pediatricians. The work they do is best left to law enforcement. Absent the subspecialty, any appropriately certified pediatrician with knowledge relevant to the type of injury or illness at issue in a case could testify about injuries and illnesses as expert witnesses in trials, and both sides should be able to present medical views.
If the subspecialty of child abuse pediatricians remains and these doctors continue to see patients, they should have to announce who they are and their role. They should explain to parents that anything the parents say may be used against them by social services organizations and in court. Bioethicists should advocate for this disclosure, and law and hospital policy should mandate it. All parents should have the opportunity to refuse an assessment by a child abuse pediatrician and the option to have a lawyer present for any discussion.
The complex system of family surveillance penalizes the poor and people of color disproportionately, violates parental rights, and interferes with many parents who have their child’s best interests at heart. It is a system of guilty-until-proven-innocent that has harmed thousands of families, many of whom include parents who have been exonerated. I implore people, and especially bioethicists, to learn about those innocent families, and to advocate for repairing this broken system that harms them.
Anne Zimmerman, JD, MS, is founder and chair of Modern Bioethics and Innovative Bioethics Forum, chair of the New York City Bar Association Bioethical Issues Committee, and editor-in-chief of Voices in Bioethics. Her recent book, Medicine, Power, and the Law: Exploring a Pipeline to Injustice, explores the relationships between medicine, science, and technology and the criminal and civil justice systems.