LEGAL QUESTIONS RAISED BY PRIVACY OF FAMILIES AND TREATMENT OF CHILD ABUSE AND NEGLECT

• NCJ Number: 47094
• Journal: Child Abuse and Neglect Volume: 1 Issue: 1 Dated: (1977) Pages: 159-166
• Author(s): B A CAULFIELD
• Date Published: 1977
• Length: 8 pages
• Corporate Author: Pergamon Press, Inc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE IMPACT OF JUDICIAL AND CONSTITUTIONAL GUARANTEES OF RIGHTS OF PRIVACY ON THE INVESTIGATION OF CHILD ABUSE AND NEGLECT IS EXAMINED.

Abstract

INTERNATIONAL RECOGNITION OF RIGHTS TO FAMILY PRIVACY ARE DISCUSSED AND THE AMERICAN EXPERIENCE WITH REGARD TO JUDICIAL DECISION ON RIGHTS OF PRIVACY ARE EXAMINED. THERE ARE THREE LEVELS OF RECOGNITION OF FAMILY PRIVACY; PHILOSOPHICAL RECOGNITION, LEGAL RECOGNITION, AND LEGAL ENFORCEMENT. FAMILY PRIVACY AS A PHILOSOPHICAL AND LEGALLY RECOGNIZED CONCEPT HAS REACHED A LEVEL OF ENFORCEMENT UNDER LAW WITH THE U.S. SUPREME COURT'S EXTENTION OF PERSONAL PRIVACY GUARANTEES INHERENT IN THE CONSTITUTION TO MATTERS OF FAMILY PRIVACY AS WELL. THE APPLICATION OF THE FOURTH AMENDMENT IN MATTERS OF FAMILY PRIVACY IS ILLUSTRATED. IN CRIMINAL LAW, SEARCHES ARE GOVERNED BY THE WARRANT CLAUSE OF THE FOURTH AMENDMENT, AND THE COURT HAS RECENTLY DISTINGUISHED BETWEEN SEARCHES IN THE CRIMINAL AREA AND THOSE WHICH ARE ADMINISTRATIVE IN NATURE. ADMINISTRATIVE SEARCHES ARE THOSE CONDUCTED FOR PURPOSES OTHER THAN CRIMINAL LAW ENFORCEMENT, AND SINCE CHILD ABUSE INVESTIGATIONS CAN BE CHARACTERIZED AS ADMINISTRATIVE, THIS DISTINCTION HAS IMPLICATIONS FOR CHILD ABUSE AND NEGLECT INVESTIGATORY PROCEDURES. SPECIFIC COURT DECISIONS ARE CITED AND DISCUSSED. FIFTH AMENDMENT MIRANDA WARNINGS MAY ALSO HAVE POSSIBLE IMPLICATIONS FOR CHILD ABUSE INVESTIGATIONS. FROM SOME CASES IT CAN BE INFERRED THAT MIRANDA WARNINGS ARE REQUIRED IN CHILD ABUSE INVESTIGATION; OTHER CASES IMPLY THE CONTRARY. THE PRESENCE OF A POLICE OFFICER DURING CHILD ABUSE INVESTIGATIONS COULD NECESSITATE MIRANDA WARNINGS, WHILE QUESTIONING BY A CASEWORKER ALONE MAY NOT. QUESTIONING BY SOME CATEGORIES OF STATE AND FEDERAL OFFICIALS HAS BEEN HELD NOT TO AMOUNT TO CUSTODIAN INTERROGATION, AND ARE VIEWED AS EXEMPT FROM MIRANDA RULINGS. EXAMPLES OF THESE OFFICIALS AND SUCH INTERVIEW SITUATIONS ARE PROVIDED. IF THE INVESTIGATION IS DIRECTED TOWARD CRIMINAL PROSECUTION, OR IF A POLICE OFFICER OR ANY ELEMENT OF APPARENT COERCION OR RESTRAINT IS PRESENT, THESE CHARACTERISTICS SHOULD ALERT THE SOCIAL WORKER TO THE NEED TO GIVE MIRANDA WARNINGS. JUDICIAL DECISIONS RELEVANT TO QUESTIONS OF FAMILY PRIVACY ARE FOOTNOTED THROUGHOUT THE TEXT. (KBL)