Sexual Abuse and Consent: UK Judge gets it wrong

The BBC has reported:

Stuart Kerner, 44, from Kent, received an 18-month suspended sentence for two counts of sexual activity with a child by a person in a position of trust.

While the sentence seems quite low for the offence, what is most concerning is the context of the sentence. This is a case where a teacher was in a position of trust in a school. He entered into a relationship with a 16 year old student at the time that his wife miscarried with their second child. More can be found on the story on the BBC.

Stuart Kerner

The most disconcerting part of the story is, however, a view that the judge felt the child had become obsessed with Kerner and thus, groomed Kerner. In other words, the court is putting responsibility for the sexual abuse on the victim. Such a view states that the obligations of a person in authority can be modified based upon the child's behaviours. Let's expand the thought - if a child is highly oppositional, rude and perhaps even violent, then violence by a teacher in return might be permissible. But that is not allowed because we expect the adult to be able to manage their emotions, stay in control and respond in a measured and safe manner.

In this case, the failure of the adult, Kerner, to control himself is being excused because of his personal circumstances and the obsessive behaviours of the child. This is a very dangerous line of reasoning that, if applied in a variety of other criminal matters, diminishes the responsibility of the perpetrator and increases the responsibility of the victim.

This decision also missed the mark when the child is considered. This was her first sexual experience. She was 15 when the relationship appears to get underway. Her notion of relationship, sex, boundaries and even love will be highly underdeveloped. Her executive functioning is that of a 15 - 16 year old which means that she is more likely to be influenced by emotion and impulsivity than rational, long term thinking. Kerner, on the other hand, at 44 years of age, should be expected to have the maturity to work his way though both his emotions and the responsibilities of his position.

The judge has also failed to understand that Kerner was part of a system responsible for protecting children. Schools are meant to be safe places. Teachers are meant to be guardians of that safety. Kerner did not offer that. He compromised it for this student but also for all students by making a behavioural statement about what is acceptable.

I have no doubt that Kerner has paid quite a price for his behaviour. He is not able to work with children meaning that his career is in shambles. He has been subject to a great deal of public media. But these are all the result of choices that he made as an adult. There are the unspoken victims as well - his family, children as well the school, colleagues and the other children who had been aware of the relationship which would have created confusion for them.

This case matters because the courts have made a statement about responsibility that needs to be challenged. 

Abuse in the Catholic Church is more than sexual

Recently demoted Cardinal Raymond Leo Burke. He has blamed the sexual abuse crisis of the Catholic Church to be related to the feminization of the Church in the 1960's.

Cardinal Raymond Leo Burke

He is quoted as saying,

There was a period of time when men who were feminized and confused about their own sexual identity had entered the priesthood; sadly some of these disordered men sexually abused minors; a terrible tragedy for which the Church mourns.”

This is a clear attempt at revisionist thinking suggesting that the sexual abuse of children by priests and other clergy only dates back to the 1960's. How wrong that is. One need look no further than the profound pattern of sexual abuse that occurred to Aboriginal children in the Residential Schools of Canada. Those abuses have now been documented to have gone on as far back as the early 20th century. Edmund Metatawabin, in his profoundly moving book, documents his personal story of abuse. It is a tough read but perhaps Cardinal Burke might want to read it. He will see how extensive the abuse was. His is one of a series of books that tell these painful stories. They also tell of the price that Aboriginal children, their families, their communities and subsequent generations have paid.

Image: Indigo.ca

Pope Francis was obviously right to demote this man.

But there is a large error in the story about sexual abuse in the Catholic Church - it ignores that epidemic of physical abuse that also occurred. Many, like Metatawabin, experienced both. There are millions who experienced the physical abuse only. No one victim is better or worse than the other. Abuse in the Catholic Church was a daily occurrence in schools, churches and orphanages run by priests, nuns and brothers.

Brother Hull sent them outside without jackets. It was a cold day for Vancouver. There was even snow. They were made to hold their hands up so that the blood would run down and the hands would be cold. Then they were strapped (Personal memoir of the author).

The stories are everywhere. The Church has become fixated on one form of the abuse. But strapping, hitting, whipping, name calling, put downs, shaming were all tools employed every day by clergy. The Church is not talking much about that.

I was sent out to that hallway by Brother Bates to await my strapping. It would be the third time this week. I had again been caught day dreaming (Personal memoir of the author).

A problem with highlighting the sexual abuse is that those who suffered the other forms of abuse feel as though they cannot talk because their abuse is less than those who were sexually abused. For those physically abused, they too carry the legacy.

I tried to tell my mom about always getting hit. She wouldn't listen. She said that if I got into trouble that it must be my fault because the brothers were close to God (Personal memoir of the author)

The strength of the abuse was in the constant fear but also in the inability to tell anyone who would care. The full extent of abuse in the Catholic Church needs to be spoken about - all the survivors, regardless of what form of abuse they suffered, deserve both a voice and an audience.

 

Drug addiction and pregnancy

A New Jersey court determined that a mother had not abused her child when she sought help for her painkiller addiction. She was placed on methadone. Her baby showed signs of withdrawal after birth causing child protection to intervene.  The fact that she sought treatment was seen favourably. Thus she was determined to have not been grossly negligent.

The case is worrying.  By implication had she not sought treatment then she would be negilgent placing her in the position of abusing her baby. This not only shames mothers with addiction but drives them away from help for fear of the implications.

Many women who are addicts do not get pregnant by choice. They are not seeking pregnancy. Most addicted women are victims of abuse. Many pregnancies occur within patterns of inter personal violence. I wonder what happens when we see the mother and the baby as victims together both in need of support. This case did not seem to seek to criminalize the mother as cases elsewhere have done. This is good  

Now we need to bring a harm reduction and support lens to these cases

Child protection as racist and poverty driven

It is perhaps somewhat odd that two Canadian newspapers would chose to write articles on the child protection system in the same week.  Looking at several inquiries, The National Post calls for reform of the system They start by noting that there will be an inquiry starting in Ontario in early 2015 on the death of Katelyn Sampson. She was murdered in 2008. The Toronto Star noted:

When Irving told the Children’s Aid Society on March 30, 2008, that she did not think she could provide for Katelynn and wanted her out of her home, the agency “passed the buck” to the Native Child and Family Services — Irving is part First Nations — and nothing was done, McMahon stated. (When a Native Services caseworker contacted Irving 16 days later, she lied and indicated the Toronto School Board was providing support and that she wanted the file closed, which it was.)

This inquiry will add to the long list of inquiries into the failures of child protection in Canada. In my research, we have identified about 80 inquires of various natures with at least two more on the horizon.
These will add to the legacies of Matthew Vaudreuil, Phoenix Sinclair, Christian Lee, Babby Annie, Jordan Heikamp, Kim Anne Poppen, Jeffrey Baldwin and so on. The stories are children of poverty but also of the First Nations of Canada. In other words, these are stories of the marginalized in our country.

The Toronto Star is also running a series of stories into the child protection system. They see the racism looking at how Black children are severely over represented.

Last week, the Globe and Mail told the story of Eddie Snowshoe who died through the solitary confinement system that Canada runs. But hist story starts much earlier in the institutional abuse of Canada's First Nations peoples through the residential school system. There, children were systemically abused and neglected. Today, we pay for that with the long standing impact of such broad, racist based social policies. They were designed to take the Indian out of the Indian. Now, we see the impact of fragmented Aboriginal communities and families in  the child protection systems.

It is obvious that child welfare must do a better job of the day to day management of complex cases. There are practice errors that get made and need to be corrected. That is the subject of my research. But society must also be willing to face the fact that there are several issues child protection cannot solve:

• Poverty - which is too often linked to neglect - not intentional neglect but neglect from lack of resources. These are often families where parents struggle with marginal housing and limited income, most often from low wage employment. They try to do their best with what they have but that often falls short of what is needed. Society can address these issues through economic programs.
• Aboriginal child welfare - the gross over representation of First Nations children in child protection care occurs because of the Residential Schools and the legacy they created. Child Welfare cannot fix that. 
• Underfunded mental health programs that leave families vulnerable.

The list can go on but the point here is that child welfare is being asked to "fix" problems that arise from social policies that are well beyond their control. This is a conversation we must have rather than just pointing fingers at a child protection system that cannot fix it!

Failure to criminalize a drinking pregnant mother

In a vital case in the United Kingdom, the Court of Appeal has ruled in the case of CP that a mother cannot be held criminally liable for causing FASD in her child. There are certainly many who might wish to see this happen. Indeed, it is happening in several American states. The UK decision is important as it recognizes that several key issues. In reading the decision, I am reminded of main points of debate:

• Is a foetus a child? - In Canada, this has been rejected by the Supreme Court of Canada. If the argument is accepted, then there is a wide range of behaviours that would fall under the rubric of causing harm to a child in utero - think of smoking, an unhealthy diet, obesity, taking of certain prescription medicines and so on. 
• Should a mother be criminally responsible for behaviour she could reasonably know would harm the child? This raises more than alcohol and brings back the discussion on a wide range of behaviours. But, while it stays that a mother who is drinking heavily should be expected to know that she will harm her child, it would not be hard to extend this argument against women whose various medical conditions make a pregnancy high risk. Should that mother also be held criminally responsible because she chose to take a risk that had a high probable outcome of harm?
• If the foetus is not a child within the meaning of law, then harm done in the pregnancy cannot be a criminal act. On this point, the UK Court of Appeal notes:

1. The reality is that the harm has been done to the child whilst it is in utero. The fact that if the child is born alive it will suffer the consequences of the insult to it whilst in the womb does not mean that after birth it has sustained damage by reason of the administration of the noxious substance. One only has to cast one's mind back to the Thalidomide tragedy. The injury was done to the affected children by the administration of the drug whilst they were still in the womb. Those children who were born affected were born with missing or ill-developed limbs. Whilst they suffered the consequences on a lifetime basis after birth, they did not sustain any additional damage after birth by virtue of administration of the drug.


2. Reference to the expert evidence of Dr Kathryn Ward, an experienced consultant paediatrician, whose very detailed report was before the First Tier Tribunal, (and which was not disputed), shows that the harm which is done by ingestion of excessive alcohol in pregnancy is done whilst the child is in the womb. The child would then, when born, show damage demonstrated by growth deficiency, physical anomalies and dysfunction of the central nervous system. Very often, as in this case, the full extent of retardation and damage will not become evident until the child reaches milestones in its development, at which point matters can be assessed. The fact that such deficits cannot be identified until that stage does not constitute fresh damage. It merely means that the damage was already done but has only then become apparent.


3. It seems to me that this is fatal to the appellant's contention. The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute "any other person" within the meaning of s23. The basis upon which the actus reus is extended in a manslaughter case cannot apply here since nothing equivalent to death occurred to CP after her birth.

Those who argue the right to life will find this decision very disappointing. They would suggest that the foetus is a life from the moment of conception. However, to sustain this legally requires that we are, as a society, prepared to hold mothers to a very high standard of behaviour in pregnancy that must go well beyond alcohol to all behaviours that have a high probability of causing harm.

But there is another side to this. If we accept that argument then we must also hold that society has a very high obligation to protect the foetus that would include offering intensive medical help to all at risk women and pregnancies. Thus, an alcoholic or drug addicted women would be entitled to the care of the state in order to protect the foetus. 

This then takes us down the road of forcing treatment on mothers who's e behaviours may place a foetus at risk. Those who may jump on that bandwagon will most likely think of women with alcohol and drug problems. They may find the moral ground of forcing treatment on these women as a group easy due to the nature of their disease (addiction) and a belief that it is a moral versus medical issue. But what then are we to do with the poorly managed diabetic, the heavy smoker, the mother who has been advised against pregnancy due to medical risks - are we to force treatment on them?

What then are we to do with one of the higher risks for children - families who live in poverty where access to a healthy diet and good pregnancy care are very challenging? Is society willing to now say that they should have forced supports? There are many more children born to women with various forms of higher risk pregnancies arising from medical and social conditions other than alcohol.

As for drug use in pregnancy, we can fall very short in understanding the long term implications. A study by Dr. H. Hurt in Philadelphia found that the "crack baby" epidemic of 25 years ago has not materialized in the way it was predicted. Many of these children are doing well. Poverty may have been a bigger issue.

All of this is not to say that we should fail to help mothers be the best they can at being pregnant. We should - but that is not accomplished through criminalizing or jailing mothers - that is the ultimate in mother shaming. It is be education, community supports, health care and harm reduction. 

Learning from the deaths of children

Children die when involved with child protection systems. It is inevitable that some children will die as it is impossible to predict which parent is going to kill a child. However, there are several behaviours by social workers that can reduce the risks. This poster represents some of the most important themes that we have found in our research of Canadian published case reviews.

There are a few I would like to highlight:

1. Supervision really matters - when a front line worker gets good supervision we have another set of informed eyes talking about the case. The supervisor gets to ask questions about missing data, why case plans are structured the way they are and to offer ideas and suggestions about what might be done. Remember that a large number of front line workers have less than 5 years experience. Supervision matters.
2. The child is the reason the case exists - it is not hard to get distracted by the needs of the parent. This can be particularly true in cases where there is a conflict through the court system. Indeed, in a recent case I was involved in, I experienced counsel for the parents as being strongly focused on what was best for the parent but disguised in questions that made it seem about the child. Our task is to bring the case back to what serves the child.
3. Being open to the unimaginable - case workers do not like to think that the parent or caregiver that they are working with would kill the child - but if we are open to that as a possibility then we ask better questions and consider the data more thoroughly.
4. Front line social workers are generalists - they often lack specialist training in the complex issues that child protection work brings. This can range from mental health to addictions to inter personal violence to FASD and so on. BUT, the front line worker does need to know how to get at experts who can aid them in understanding the case. These experts also need to learn how to talk to front line workers in ways that make the issue clear.
5. One assessment at the beginning is not the end of assessment - assessment is an ongoing process. Things change in cases and so should the social workers understanding of the case.
6. If the child is at the centre of the case - see the child - see the child frequently.
7. History does matter - it tells us a lot - what have been the problems in the past and how successful were interventions; how are things different now that may yield strengths or ongoing deficits; is there a pattern that needs to be considered and so on.
8. The new partner is a risk - they need to be met and assessed. 

One of the big lessons for us is how important it is to talk to students about these issues - but talk with students inter professionally. Child protection requires an ability to work across professions - medical, psychology, social work, criminal justice, law - and be able to do so with a grounding in what protecting a child is all about. Inter professional communication has been a problem at the heart of many cases.

There are also cultural implications to our research which I will review in the next posting.

I do want to leave with this message as well - case reviews where things have gone wrong need to be done at the front line - but not in a way that is hanging people out to dry but rather in using the case to enhance learning and improve practice. That helps to reduce the risks of the death for children involved with child protection.

Child models - should we be concerned?

There is much controversy these days about the 9 year old Russian girl who has become a modelling sensation. Kristina Pimenova is cute and adorable in a way that makes it obvious why the fashion world wants to take hold of her. She only models children's clothes although the images have a sexualized tone to them by portraying her in ways that are not typical of a 9 year old.

On the one hand, it is quite possible to defend that the selling of children's clothes in our highly materialistic world should be done in a way that draws attention. Defenders might state that she has been kept at 9 years old in her imagery and clothing, although the imagery issue might be open for debate. Yet, there can be little doubt from the pictures that this is a little girl.

There are many stories of childhood actors and stars as well as childhood models from the past. Perhaps it might be suggested that this child is being presented tastefully and in a much better way than has been done with others.  But this child is also the daughter of a big name retired Russian soccer star and a successful Russian model. This child is also being taken abroad for fashion work.

Her Facebook page is full of imagery that makes it clear again - this is a little girl. Perhaps it is the power of being the daughter of people who know how to manage image that has kept the child about her.

A year ago, we were reminded that childhood models are not always so protected. The State of New York passed legislation to protect child models who have been denied basic protections.

Despite the fact that most models begin their career around the age of 13, often sacrificing their education, health and financial security to pursue a career in an unregulated industry, Diane Savino acknowledged that 'model rights have long been trivialized and dismissed.''By making this legislation the law in New York, we have brought an end to the rampant exploitation and sexual abuse of child models by giving child models the critical protections they’ve been denied for too long.'

Read more: http://www.dailymail.co.uk/femail/article-2471852/Coco-Rocha-tears-announces-new-child-model-protection-law.html#ixzz3KUmtpYbt
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However, my involvement in child protection sees this as not only a human rights issue that children be protected from exploitation, but also that we recognize how much this steals childhood away from these models. We need to be concerned why this is occurring. How much of this is really about the parents trying to re-live their own lost hopes (we see this in more than modelling - think hockey, football, soccer, music and so on).

What makes this a greater concern is that these images are also attractive to sexual predators. The commercialization of children creates photos that draw this population. While Kristina's parents may well have the savvy to protect their daughter from that, thousands of other parents who want their little girls and boys to be successful in modelling may not have that skill. It is the commercialization of childhood fashion images that can add to the demand.

A 2013 report from the California Child Welfare Council noted

Every day of the year, thousands of America’s children are coerced into performing sex for hire. Some of these children are brutally beaten and raped into submission. Others are literally stolen off the streets, then isolated, drugged, and starved until they become “willing” participants.

Some children are alternately wooed and punished, eventually forming trauma bonds with their exploiters, similar to cases of domestic or intimate partner violence. Still others are living on the streets with no way to survive, except by exchanging sex for food, clothing and shelter. The people who sexually exploit children have built increasingly sophisticated criminal enterprises around the sale of vulnerable young boys and girls. This is a multi-billion dollar commercial industry that preys on children as young as ten, and it is happening to tens of thousands of American children in or near our own neighbourhoods (p.5)

When we turn childhood into a period of commercialization, we tilt the balance away from the innocence of childhood. Kristina's parents should be congratulated for ensuring the images have stayed child like, but should they be there at all? What should the line be like and does commercialization support exploitation? I suggest yes because the more we create the demand, the more we fuel the dreams of desperate parents who want their child to be on the front cover.

If you think I may be taking this too far, consider that Women's Daily gave Kristina the title of the most beautiful girl in the world. But as a CBC story shows, this has become mutated into the most beautiful woman in the world - imagine a 9 year described as a woman!

I hope that there can be a lot of discussion on this important issue because exploitation of children has long term consequences well into adulthood.