Tuesday, March 8, 2011
Weaver: "The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children"
Jessica Dixon Weaver (SMU School of Law) has posted "The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children" (forthcoming Va. J. of Social Policy & the Law) on SSRN. Here is the abstract:
Psychological abuse is the most prevalent type of child abuse. It lies at the core of child maltreatment because it is embedded in and interacts with physical and sexual abuse, as well as physical neglect. It also has a more extensive and destructive impact on the development of children than any other type of abuse. Yet, the current child protection system fails to adequately address the problem because the normative framework of the child protection system does not always include the psychological abuse of children. For the majority of states, the physical health, safety, and well-being of children are focal points in determining whether abuse or neglect has occurred. Although federal law requires that “serious emotional harm” be included in the definition of abuse for all states, less than one third of all states in America allow for children to be removed from their parents due to psychological abuse alone.
This Article proposes a way to fill the gap by incorporating psychological abuse into the larger doctrinal equation of child abuse and neglect treatment and prevention. First, recognizing that a primary challenge to including psychological abuse within the legal standard is the ability to determine the level of psychological harm that warrants state intervention, this Article offers a uniform definition of psychological abuse in order to expand the scope of the emergency removal standard. Second, this Article borrows from the European theory of subsidiarity to address prevention and treatment of abuse in American communities. This bold new paradigm is a prescriptive process that carefully constructs the law such that necessary interventions in a child’s life are allowed to prevent further psychological damage so that victims can start the road to recovery. Ultimately, applying the principle of subsidiarity to the legal framework of the child protection system should reduce the number of children who experience psychological abuse as well as reduce the overall cycle of abuse and neglect in our country.