Prevention of Animal Cruelty -- the Origins of Child Advocacy

I learned in my children's law class that child advocacy in the United States grew out of statutes against cruelty to animals. I found this fact particularly interesting.

In 1874, a little girl named Mary Ellen was severely beaten by her foster mother. Neighbors were outraged, but there was no apparent legal recourse against Mary Ellen's abuser. A crafty social worker devised a scheme to liken children to animals and to proceed under a theory of the prevention of cruelty to animals. (Read more about Mary Ellen)

Upon first blush, I was outraged that animals were protected from beatings before children. How could a "civil" society recognize that animals might be abused, but not human children? After some consideration, however, I thought it quite interesting that perhaps the tendency to explicitly protect animals came about because a higher standard of care for animals is not implicitly understood. Perhaps society functioned under the assumption that families would protect their children -- that there would be no need to intervene into the family and mandate the protection of children.

I find this discussion particularly interesting when applied to the facts of DeShaney v. Winnebago County (U.S. 1989). (Read the DeShaney case)
I've blogged about this case before, but I think that the facts surrounding Joshua DeShaney and Mary Ellen's horrible abuse are interestingly related. Joshua DeShaney was beaten into severe retardation by his father. Joshua DeShaney's mother sought a cause of action against the state claiming that by placing Joshua in his father's custody, the state affirmatively acted and should therefore be liable for Joshua's injuries. The Supreme Court rejected this reasoning and held that there was no viable cause of action against the state for harm caused by a private actor (like Joshua's dad).

The DeShaney case brings up interesting issues about the proper role and responsibilities of a child protection agency sponsored by the state. The dissent in DeShaney was critical of the characterization of the state's involvement as merely passive -- rather, the dissent presented the child protective agency's involvement as affirmative. One of the dissent's major points was that the state's affirmative efforts to protect children would discourage others in the community from stepping in and protecting the child from an abusive family/parent.

On the other hand, when Mary Ellen was severely beaten, there was no state-sanctioned child protective agency and indeed the community would have been Mary Ellen's only protective recourse had the social worker not thought to apply animal cruelty statutes.

While Joshua DeShaney and Mary Ellen were two very different children living at two very different times, they shared common aweful life experiences. Together these cases demonstrate that leaving the resolution of child abuse to the community will not work, and that an insufficiently active child welfare agency will also not adequately protect all children.

I am left puzzled. There is no clear solution, but hopefully it will not take too many abused children like Joshua and Marry Ellen to get the child protective services working.