West Virginia Criminalizes False Child Abuse AllegationsWritten by: John Welch Print This Article
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In 2008, West Virginia Governor Joe Manchin signed into law House Bill 3065 that permits prosecutors to pursue misdemeanor criminal charges against people filing false child abuse reports. It also allows the victims of false child abuse reports to file for civil damages, even if criminal prosecution has not been pursued. Although the law is a step in the right direction, it does not go far enough.
As a misdemeanor crime, the criminal penalties are rather weak, but are better than nothing. Perhaps they may be enough to keep a few malicious parents from making false accusations of child abuse during child custody battles.
“It has a specific criminal penalty but additionally it has the civil penalty. So if the prosecutor at their discretion does not move forward on the criminal side, there’s still civil remedies to help discourage these types of accusations,” Fittro said.
The hope is that people might be less inclined to throw out false accusations, without thinking of the consequences.
Penalties include up to a $1000 fine, 60 hours of community service and a mandatory parenting education class.
Penalties Should Increase With Frequency and Severity of False Accusations
It would have been more compelling of good behavior if parents prone to filing false reports suffered increasingly severe penalties based upon the number of false reports filed. For instance, a second offense might double the penalties of a first time misdemeanor and a third offense would turn into a felony with jail time.
It also would have been more persuasive of good behavior to vary the penalties based upon the severity of the allegation and the level of disruption and harm it caused. As an example, a false accusation of physical abuse causing a bruise from striking a child is far less damaging to both the falsely accused and the alleged victim than a false accusation of sexual contact with a child, even though the evidence for the latter is often minimal to nonexistent.
A parent who falsely alleges child sexual abuse is likely to cause the target parent to lose custody for weeks, months, or even years. This is why the false child sexual abuse allegation has become a favored “nuclear option” in family law child custody disputes, particularly by mothers against fathers because the public and courts wrongly believe that mothers are unlikely to ever commit sexual abuse against a child.
But perhaps worse is the damage done to the children. Children who are interrogated about sexual abuse tend to be subjected to a high degree of trauma. If the people involved are not competent, the children become easy targets for brainwashing resulting in even more mental damage. When this trauma is inflicted on a child due to false accusations, it is particularly horrendous.
In acrimonious divorce and child custody disputes emotions are tense and tempers flare. Buoyed by litigious attorneys, each side engages in strategic maneuvers to gain the greatest legal advantage. Sometimes a parent, fearing a loss of control or custody over a child, crosses the ethically acceptable bounds of legal warfare. An unfortunate but all too frequently used tactic by mothers is to accuse the father of sexually molesting their child. The mere accusation is sufficient to strip the father of all his custody rights and launch a criminal investigation. Even when no evidence is found to substantiate the allegation, family law courts typically “err on the side of caution” and award full custody to the mother. While national statistics reveal that the majority of all child sex abuse reports are legitimate, when such claims are made by a mother in the context of custody litigation, an estimated 77% of allegations are determined to be unfounded (Tong, 2002). A false child sex abuse allegation made during child custody litigation is a destructive legal stratagem.
Throughout the world, child sexual abuse is considered the ultimate crime. Not even murder generates the kind of raw emotional reaction that results from the sexual abuse of a child. Society acknowledges the innocence of children and responds to child abusers with extreme prejudice. The power of the accusation alone is often enough for public opinion to impeach the character of the alleged child abuser and guarantee legal victory for the mother. According to Jeffery M. Leving (1997), a leading father’ rights attorney, “the use of false sexual abuse allegations to win custody suits has become almost a standard tactic among disturbed mothers and unethical divorce lawyers” (pg 148). The accused may spend years rebuilding his reputation from the monumental damage caused by the accusation.
To investigate the effect of a false child abuse accusation, a child custody survey was conducted; the group was evenly divided between males and females. A scenario was presented in which a divorcing couple was contesting custody of the children. It was stated that both parents were fit and proper. The question posed regarded what custody arrangement would be in the best interests of the child. An overwhelming 94% of respondents indicated that joint legal and physical custody, shared between parents, would be in the child’s best interest, with 78% of respondents indicating that a 50/50 time sharing agreement was appropriate. Another scenario was presented. In the second scenario the father has been accused by the mother of sexually molesting their child. The Department of Social Services and the police conducted an investigation and concluded that there is insufficient evidence to determine whether or not the father committed sexual abuse. The question of custody is again asked. As a result of the unsubstantiated accusation against the father, 79% of the same respondents stated that sole legal and physical custody should be granted to the mother. Only 15% of respondents felt that the father should be permitted a minimum of 50% visitation with the children. In the final survey question regarding the respondent’s personal opinion of child molesters, 42% stated that they should be “locked away for life” and 48% responded that they should “burn in hell”. Why do so many mothers file false sexual abuse allegations during custody cases? They work. False accusers in this type of case rarely face prosecution.
False Sexual Abuse Allegations Encouraged by Poor Laws
As the San Diego County Grand Jury discovered during an investigation in 1993 to 1994, false child abuse reports are encouraged both by poorly written federal laws and a failure to punish false accusers. This results in excessive child abuse reports that are all too often wrongfully prosecuted due to overzealous prosecutors.
To receive federal funds, states also must pass laws requiring specific people, such as teachers, health-care professionals and law enforcement officials, to report suspected child abuse, backed up by penalties for failure to report. In effect, this provision has made it a criminal offense for such people not to report suspected abuse. The result has been over-reporting of even the most absurd and impossible accusations. For example, the Grand Jury was informed about a situation involving a North County high school teacher. A 14 year-old special education student, who was pleased to learn that she would not be receiving a failing mark in her woodshop class, hugged her teacher in the presence of several other students. Later she told her family about the incident. By the next day her account included the accusation that she had been touched on her breasts.
She reported the charge to the school administration, who reported it as a charge of fondling. Although there were several other students present when the fondling supposedly happened and, although this teacher had an unblemished record in all respects, he was removed from the classroom and put on unpaid leave while the charges were being investigated.
These charges were brought to the attention of local newspapers and for months there was publicity about the case. The case went to trial. Fortunately, the jury found the teacher innocent of any wrong doing and expressed astonishment that the case was ever brought to trial.
However, this man’s reputation was impugned. His family life was disrupted for months; his teaching career was interrupted and, even when he was allowed to return to school, he was no longer assigned to the woodshop classes which he preferred. Eventually he left teaching for another career, expressing bitterness that the school district assumed he was guilty until he was legally absolved. Some adults falsely accused of molesting children have said they would rather have been accused of murder.
Unfortunately, the following phrase in House Bill 3065 precludes the use of criminal prosecution under this law against the false accuser in situations such as the case of the high school teacher above:
(3) has the intent that the information influence a child custody proceeding.
False Sexual Abuse Allegations Often Presumed True
People who have been falsely accused of child sexual abuse who would rather have been accused of murder are motivated to this opinion because US laws and public opinions are seriously at odds with the US Constitution and the reality of extremely lax evidentiary standards for making sexual abuse allegations and issuing charges. Oddly, there is more willingness to comply with US Constitutional due process and to regard the accused as innocent until proven guilty when one is accused of murder, despite the permanence of that crime.
There is also less willingness to falsely accuse people of murder in part because there is an expectation of a certain level of concrete evidence being required before prosecution is pursued and in part because there is a lack of a compelling reward (such as sole child custody going to the false accuser) for making a false murder accusation.
Alleged Sexual Abuse Victims Are Often Stigmatized or Harmed by Society
It is ironic that murder, a crime that cannot in any way be reversed no matter what action is taken, is regarded so severely compared to sexual abuse crimes that usually result in damage that can be significantly remediated and managed via medical and mental health treatments. Across the globe, human societies make sexual abuse crimes including molestation and rape far worse for the victim because of the nonsensical attitudes people have towards these crimes. It is as if the society wants to destroy or isolate the victims in order to remove reminders of the crimes. Muslim societies in particular go so far as to sentence many of the victims of such crimes to death.
Civil Penalties for False Child Abuse Allegations
Civil sanctions and liability are possible up to the cost of the damages inflicted upon the target of the false allegations:
(d) If the court determines, based on the investigation described in part three of this article or other evidence presented to it, that an accusation of child abuse or neglect, or domestic violence made during a child custody proceeding is false and the parent making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the parent making the accusation. The remedy provided by this subsection is in addition to any other remedy provided by law.
Again, this is weaker consequence than is truly appropriate. The psychological damage to the falsely accused and his or her children is tremendous. Depending upon the circumstances, it may destroy a career, result in the need for extensive mental health treatment over long periods of time, and irreparably damage the relationships between the falsely accused parent and children. Punitive damages seem appropriate, but are not provided for by this law.
False Accusers Often Have Personality Disorders
Many parents who file repeated false abuse allegations are mentally ill with one or more personality disorders. Others may have been falsely reported repeatedly and are retaliating. For the benefit of the children, it would be best to do a mandatory psychological assessment on parents who file false abuse charges to determine if there are mental health issues in either or both parents and to assess what treatment is needed to help remedy their problems.
It would also be beneficial for children to be provided with therapy by qualified child psychologists in the event of more than one false abuse report. Besides the obvious harm caused by the false abuse reports, it is much more likely that a false accuser is also engaging in other forms of child abuse apart from the false accusations themselves. Children in these situations are likely to need help to be protected from the malicious parent.
In my view, such therapists must be trained not only in psychology with a special emphasis on personality disorders and child psychology, but also in modern domestic violence and child abuse research. These strongly indicate that domestic violence and child abuse are commonly committed by both mothers and fathers, contrary to the misconceptions of many who have not followed this research closely.
Parents who have an irrational unwillingness to co-parent with their children’s other parent engage in a significant amount of child abuse, often by parental alienation brainwashing and access blocking via interfering with custody exchanges and visitations. Therapists helping the children as patients serve multiple good purposes including protecting the children against child abuse, helping them learn strategies to resist parental alienation, and protecting the target parent against the alienating / false accuser parent.
The West Virginia law allows judges to implement both of these measures, but does not give significant guidelines as to how to do this:
(9) A requirement that the parent complete a program of intervention for perpetrators of domestic violence, for drug or alcohol abuse, or a program designed to correct another factor; or
(10) Any other constraints or conditions that the court deems necessary to provide for the safety of the child, a child’s parent or any person whose safety immediately affects the child’s welfare.
The court can also reduce or strip child custody from a parent who engages in false child abuse reports or other interference with the other parent’s time with their children. This is appropriate in the case of repeated offenses as the falsely accusing parent has been punished multiple times yet still will not stop making false reports. A reasonable but unfortunate step in such cases is to eliminate the false accuser parent from the children’s lives until that parent can demonstrate progress at controlling these negative behaviors. Such a move makes it highly likely the false abuse reports will either stop or will become more easily disproven so that they can be more rapidly screened out before resulting in more wrongful investigations or prosecutions that psychologically damage both children and the wrongfully accused parent.
Judges are likely to need training on psychology, child abuse, and domestic violence beyond what they typically have to make well-reasoned decisions in these areas. Hopefully the judges who do not have such training will obtain it and in the meantime will find experts to consult in the cases to determine appropriate steps to protect the children.
Information on False Child Abuse Reporting Laws for Your State
To search for child abuse reporting, child custody, and related laws for a state in the United States, go to State Statutes.
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