The abuse or neglect of a child can lead to intervention of the courts in many different methods. Such allegations can cause the child to be removed from parents and placed in foster care, can have consequences in divorce or child custody proceedings, and can lead to a civil suit by the child seeking monetary damages against his or her abuser. The abuser can also be sent to prison for his or her actions. In this situation, there is a criminal prosecution of the alleged act(s) of child abuse.
Most criminal prosecutions occur at the state level. Each state has its own set of laws that define criminal child abuse and its own set of legal rules it follows. What is illegal in one state may not be illegal in another. The rules and procedures of a criminal prosecution may differ from state to state. Although certain standards and various rights apply to all criminal prosecutions, local practice, often influenced by local philosophy, dictates how cases are investigated and prosecuted.
Generally, a criminal prosecution begins with an investigation by the police. Police will attempt to interview all the witnesses, try to collect evidence, and will direct the investigation. The child witness is usually the key witness. In some jurisdictions, the child is interviewed by police officers; others use specially training child interview specialists. There are approximately 400 jurisdictions that use child advocacy centers as the focal point of their investigation. The investigation should also include medical examinations, when appropriate, and the search for forensic and trace evidence and the collecting of collaborative physical and psychological evidence. Every investigation should include an attempt to interview the person accused of the abuse. However, a suspect is not required to talk to police, and frequently the accused will refuse to make any statement. The individual cannot be forced to give a statement.
All of the information that is gathered is typically then provided to the local prosecuting agency. Throughout the country these can have different names: prosecuting attorney, attorney general, district attorney are common terms that are used in different places in the United States.
Before someone is charged with a crime, the investigation is reviewed by that prosecuting authority. The prosecutor may choose to interview witnesses himor herself. In time a decision is made as to whether there appears to be enough evidence to prove that a crime was committed and that the accused is the person who committed it.
The prosecutor must also consider what evidence is available to be presented to a jury. Just because the police gathered the evidence, does not mean that the jury will ultimately hear that evidence. Almost every state has codified rules of evidence. Generally there are about 50–70 rules of evidence. Every piece of evidence that is presented to a jury must be filtered through each of those rules.
Some of these rules prevent the jury from learning evidence that might be very influential to their decision making, such as whether the accused has engaged in this type of alleged conduct before. Most state rules of evidence prohibit a jury from hearing that evidence under the concern that it would be too prejudicial as to whether the individual engaged in the conduct in this particular case.
Thus, the prosecuting authority must determine not only if the crime occurred and the accused committed it, but also whether it can be proven with evidence that will be admissible at trial. Thus, the next step of the analysis for the prosecutor is to ask, “Can I prove this case given the evidence that is likely to be admissible?” The standard of proof in a criminal case is “beyond a reasonable doubt.” That means that it is not just likely the accused committed a crime or even more reasonable than not that the accused did it, it is that there is proof beyond all reasonable doubt that the accused committed this crime. A reasonable doubt is defined as a doubt that would exist in the mind of a reasonable person after fully, fairly, and carefully considering the evidence. The prosecuting authority has to show there are no reasonable doubts.
Further, in 48 of the 50 states, the decision to convict someone of a felony requires the jury to be unanimous (Florida and Oregon are the exceptions). Thus, the prosecuting authority’s next question is, “Can I prove this beyond a reasonable doubt to a unanimous jury of 12 persons?”
If the prosecuting authority believes it has the evidence to satisfy those conditions, then a criminal charge can be sought. Crimes are designated in two categories: felony or misdemeanor. If the maximum possible sentence is a year or less, it is a misdemeanor. If the maximum possible sentence is greater than a year, it is a felony. Most child abuse crimes are felonies.
How someone is charged with a felony again differs by state. Many states require an individual to be indicted. That means that evidence is presented to a grand jury, and if the grand jury finds there is probable cause to believe the accused committed the acts alleged, it returns an indictment. The accused is not entitled to present evidence of his or her innocence before a grand jury. Other jurisdictions permit the filing of criminal charges by information. An information is a document sworn to by the prosecutor that summarizes the evidence and concludes the accused committed the crimes charged. A judge may review this affidavit of probable cause to determine that there is sufficient material presented to allow the charges to continue.
Once charged, the accused is known as the defendant. The pretrial rights of defendants vary greatly from state to state. Some of the rights that are universal are the defendant’s right to have an attorney represent him or her, to present evidence in the event of a trial, to confront witnesses against him or her, to testify at a trial if the defendant so chooses, and to not be compelled to testify if that is the defendant’s choice.
In time, the defendant, with the advice of an attorney, will decide whether to plead guilty or to go to trial. Approximately 80%–90% of those accused of felony child abuse charges plead guilty. The charges may have been reduced from those originally filed as an inducement to obtain the guilty plea. Unless charges are dismissed outright, the remaining cases go to trial.
If the defendant is convicted, a sentencing follows. In some jurisdictions, the jury has a role in sentencing; in the majority of states, it is the judge’s exclusive role to provide a just sentence. Most states have sentencing guidelines that place restrictions on the length or type of sentence that can be imposed in the event of conviction. A sentence is generally a punitive sanction. It does not permit the paying of damages to the victim, although a sentence may require the repayment of expenses and costs, such as medical or counseling costs, incurred by or on behalf of the victim.
- Myers, J., Berliner, L., Briere, J., Hendrix, C. T., Jenny, C., et al. (2002). APSAC handbook on child maltreatment (2nd ed., pp. 305–327). Thousand Oaks, CA: Sage.
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