Assessing the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators: Research Report. 2.3 DISCUSSION

09/01/2012

One can debate whether the variations in definitions of abuse and neglect among the States will pose significant issues for the implementation of a national registry. All States include the broad categories of child abuse and neglect in State law. Major variations among the States include whether or not they (1) include the failure to educate a child in the definition of neglect; (2) require evidence of actual harm to the child in their definition of physical abuse; (3) whether psychological abuse is included in the definition; and (4) what additional specificity could be collected in terms of types of maltreatment, including lack of supervision and medical neglect. While such differences will continue to be of some concern, States are already familiar with differences among jurisdictions and are already using such information even if definitions vary from their own. The issue of how to interpret such information will exist regardless of whether a national registry is created or not.

Most States, but not all, have law or written policy that defines the classes of individuals who can be investigated by CPS agencies and listed in State data repositories. Of the States that have law or policy, most include persons responsible for a child's care and protection—parents, unmarried partners of parents, legal guardians, foster parents, other relatives in a caregiving role, child daycare providers, and residential/group home staff. For purposes of a national registry, it is clear that these classes could easily be included. However, some States statutory schemes include adults in a noncaregiving role, including teachers, neighbors, and other professionals. Some States also include minors in the home. States already adjust for such differences when using inter-State information. Nevertheless the design of a national registry may need to determine whether a common minimum set of classes of perpetrators would be defined and maintained on a national registry, or whether the national registry will accept any class of person who is determined by a State to be a perpetrator, with only specific exclusions, such as minors.

Since more than one-quarter of the States use terminology other than "substantiated" for defining the outcomes of CPS investigations, the design of a national registry must interpret and explicitly specify what State terms are equivalent to substantiation. The Adam Walsh Act specifies that only "substantiated" cases would be included on a national repository, but the legislation cannot in itself be considered a complete design of any possible national registry.

Most States have used the preponderance of the evidence standard for a finding of abuse and neglect. Court decisions in a number of States have indicated that, whenever a protected interest is at stake,[40] the following minimal due process protections should be provided:

  • use of the "preponderance of the evidence" in determining that the individual committed the alleged act of abuse or neglect before his or her name is placed on, and information disseminated from, the data repository
  • notification that that an individual's name will be placed on a data repository prior to placement
  • an opportunity to challenge, at some kind of hearing, the decision to place an individual's name on the data repository, either before placement and dissemination of the information occurs or shortly after placement of the information on the data repository has taken place

It is unclear at this time whether one consequence of the establishment of a national registry might be the promotion of a further review of State standards of evidence and a movement towards increased use of preponderance of evidence or clear and convincing evidence by more States. This might occur due to the following arguments that can be made:

  • The probability that some individuals may be falsely identified as maltreatment perpetrators and listed on the national registry may increase with a lower standard of proof.
  • Court cases have varied on the standard needed for designating a person as a perpetrator on a data repository. Many court cases have held that due process requires at least a "preponderance of the evidence" standard be used for substantiating a finding of abuse and neglect before an individual's name can be placed on a State data repository. Others, however, have indicated that the lower standard of "credible evidence" can be used with certain conditions.

If the design of a national registry undertakes to provide more specific definitions of the conditions under which persons would be listed in the registry, States may need to consider changes to the standard of proof required for a substantiation of child maltreatment, changes in notice requirements, and potentially changes in the review process of challenges to findings of abuse and neglect. Minimum due process requirements may also mean that existing records in State data repositories not meeting that minimum could not be submitted to a national registry.

In summary, each State investigates child abuse and neglect, makes determinations as to which children are victims of abuse and neglect or at risk of abuse and neglect, and classifies individuals as perpetrators. Thus in theory, all States have acceptable data for a national registry. If all States participated, the names of several hundred thousands of individuals would be added each year to such a registry, and could have far reaching impact upon CPS practice itself.

The next chapter examines in more detail the ability of States to provide data to a registry.

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