THE LAW FOR THE PREVENTION OF THE - 02-Apr-95

THE LAW FOR THE PREVENTION OF THE

ABUSE OF MINORS AND THE HELPLESS

Yitzhak Kadman,
Executive Director,
Israel National Council for the Child

Background

Until a few years ago, Israeli society tended to ignore the very existence of the social fact and problem of child abuse within the family. The lack of awareness, perhaps even the refusal to recognize the issue, can be attributed to a number of causes. One must remember that in every society in the world the acknowledgement of child abuse is relatively recent. Perhaps, because of the threat inherent in its very acknowledgement, it is difficult to grasp that the place in which a child should enjoy the greatest protection his own home may pose the greatest danger.

Israeli society was (and to a large extent still is) susceptible to several myths, which severely hampered its transition from the "pre- problem" denial stage to the stage of awareness and conviction that a problem exists. The myth of the wonderful Jewish family, the myth of the model society being created and built in a renewed Israel, the myth of the sanctified and inviolate family unit these three myths made it virtually inconceivable that children could be abused in the Jewish, Israeli family, children who were, moreover, the generation of the future and the cynosure of family and society.

There were of course professionals, especially social workers treating children, who came face to face with the facts and attempted to deal with them with the limited resources at their disposal. But, as a rule, Israeli society simply ignored and denied the existence and prevalence of child abuse.

When cases came before the courts the judges saw no need to mete out deterrent punishments as there was no one to deter. Child abuse was not even registered in law as a separate crime.

The Turning Point

It is difficult to determine the event or the date that saw the turning point in this tendency, since doubtless the process of perception change was gradual and cumulative. Yet, if one incident may be singled out, it would be the death of a small girl in Tiberias.

In October 1988, three-year-old Moran was brought to a hospital in Haifa. She arrived unconscious and it soon turned out that she had been prey to protracted abuse by her uncle, who had caused serious injuries to all parts of her body, including burns and sexual abuse. Her hospitalization raised no outcry nor did it make the front pages. On February 9th, 1989, Moran died in hospital after five months in a coma.

The death seemed to burst the floodgates. It received blanket coverage in all the media; experts and professionals were interviewed over and over again; organizations and public figures gave their reactions from every available podium; politicians raised the alarm; self-criticism came from all quarters Where have we been? How did we not see? Are there more such cases? It was not the first case of a child killed by family abuse but this tragedy seemed to catch the public at a ripe moment. Perhaps it was one stage in an unfolding process but it brought about significant change, at least as far as concerned the awareness and recognition of the problem of child abuse.

Within a few days, far-reaching parliamentary action had been set in motion. Four Knesset members, from four factions, tabled urgent motions for the agenda and very soon after (February 19th, 1989), the Knesset debated the question and referred it to committee. The matter was deemed so important that the Knesset resorted to the extraordinary measure of setting up a Special Committee on Child Abuse which was to submit conclusions and recommendations.

This Special Committee comprised six Members of Knesset and for six months probed intensively into the subject, summoning numerous witnesses, experts, ministry officials, professionals from the fields of welfare, health, police, justice and education, and representatives of the relevant voluntary organizations. In recognition of the role that the National Council for the Child played in the matter of children's rights in general and child abuse in particular, the Committee requested that the NCC serve as permanent advisor to it, be present at all its discussions and assist in the preparation of its conclusions and recommendations.

The National Council for the Child

The NCC is an independent, public service organization dedicated to the advancement of the rights and welfare of children in Israel. It was set up in 1979, the year proclaimed by the United Nations as the "Year of the Child". Re- established in 1986, it has become the foremost advocate in Israel for the needs of children, monitoring, advocating, representing, researching, disseminating information and promoting public education on the issue.

Over the years, the organization has achieved high visibility and established itself as an authority on matters of children's rights and welfare. It is the sole agency dealing with the entire spectrum of children's rights issues, all children, Jewish, Arab and Druze. Positioned to achieve maximum social and political leverage, the NCC simultaneously seeks changes in legislation, policy and practice. It monitors the quality of services for children, gathers data on children at risk, acts to raise public awareness of children's rights and initiates innovative projects. It actively searches out situations in which children's rights and welfare require improvement. It presses for stricter enforcement of existing laws, and for new legislation which it frequently drafts itself. It advocates and initiates better national and local, child-oriented policies and it wages a continuous struggle against cutbacks in child-oriented programs. It works to get children's interests higher priority on national and local agendas. It establishes and carries out research studies and conducts information campaigns. It operates outreach projects for professional personnel in the fields of education, social welfare, health care, law and law enforcement.

A crucial component of the NCC is the Center for the Child and the Law which we set up in 1989 to examine the legal situation regarding the protection of children and children's rights and to formulate proposals for legislation in these areas.

The Legal Status of Child Abuse Before 1989

Until 1989, Israel's code of law did not include a separate felony of child abuse, no doubt reflecting the widespread feeling that such a problem did not exist and that it was therefore unnecessary to devote special legislation to it. This does not mean that parents who abused their children before that date (and a few such cases did come to notice) could not face criminal charges: they were charged under general clauses in the code and the matter was handled as any crime of violence between two adults. Not only was there no separate or more severe provision for child abuse within the family, but the recourse to general clauses often prevented the aggressor from being brought to trial and caused the abuse to be dealt with as a relatively minor crime, since such clauses rank the severity of the crime by the consequences of the injury. Even where children had been subjected to long-term and humiliating abuse, the crime was treated as grave and punished harshly only if extensive and obvious physical damage could be demonstrated. As anyone involved in the field knows, the physical results of the injury are not the only, or even the major, aspect by which to assess the harm done to the child. Moreover, the perpetrator could not be charged with any mental or emotional harm since such injury was not provided for in the general clauses on violence.

Neither did sexual abuse within the family receive adequate treatment. For some reason, the Penal Code defined as a crime only incest and, at that, only full intercourse between father and daughter. Other sexual offenses or acts of indecency were not deemed incestuous, even when involving father and daughter, and more serious crimes such as rape did not fall into the category of incest when they involved other family members two siblings, father and son, uncle and niece (although some of the cases could be dealt with in the same way as such a crime between strangers).

Another grave shortcoming of the then legislation concerned the critical aspect of the citizen's obligation to report a crime. Again, as anyone familiar with the matter knows, one of the trickiest obstacles encountered is the conspiracy of silence. The victim keeps quiet, whether from fear or guilt, from threats, enticements or helplessness. Other members of the family also have an interest in maintaining silence and in ensuring that no one else talks and the same is true of the extended family, the immediate surroundings, the neighbors and even professionals.

Some obligation to report was included in Israeli law before 1989 but its scope was very limited and its form ineffective. It was part of the Youth Law, Treatment and Supervision, rather than the criminal code or a separate law and it applied only to a short list of professionals. Psychologists and other related professionals, for example, were excluded; so were relatives, let alone ordinary citizens. Nor did the failure to report entail any criminal sanctions: it's status was more declarative than a defined, punishable offense. (Indeed, to the best of my knowledge, not one person was ever tried for failing to report child abuse.)

On the whole, it is difficult to obtain outside evidence on child abuse within the family. Frequently, the only testimony we have to go on, when there is any at all, is that of the child-victim himself or herself. Even when one can get a child to talk it is difficult to see him or her being brought to court to face a cross- examination that may not be gentle, to say the least, while opposite, on the defendant's bench, sits the abusive parent whom his/her child must look straight in the eyes. The double trauma that this procedure can engender can be imagined. From fear of subjecting a child to it, criminal charges were often not pressed at all or brought to a halt by plea bargains.

Interestingly enough, Israel has long boasted a law, unique in the world, which allows a child who has suffered a sexual offense (whether inside or outside the family) to be questioned by a special Child/Youth Investigator

(a therapist who is not a police official) and who is then authorized to present the child's testimony in court on his/her behalf. However, this law (Law of Evidence, Revision - Protection of Children, 1955) applied only to sexual offenses; its logic was not extended to other forms of child abuse, including those within the family.(See separate article on this legislation by T. Morag.)

Finally, the restricted legislation (which, as said, related to violence in general and not to child abuse in particular) did not provide for culpability on the part of the aggressor's spouse. Child abuse is frequently done with the knowledge of the abusing parent's spouse (or other family member) and sometimes with his/her agreement or even encouragement, even if only passive. In effect, the "passive" parent, who knew of the harm being done to his/her child, made no effort to stop it and maybe even contributed to it (albeit not by deed), was in the eyes of the law neither injurious nor abusing, even though their role at times fell little short of the active perpetrator's.

All these problems and omissions had to be dealt with by the Knesset's Legislative Committee once the bill had been referred to it.

The Legislative Process

The Knesset Special Legislative Committee sought to estimate the extent of child abuse in Israel, its aspects and its consequences, but most of all how to deal with it. Completing its investigation in August 1989, it submitted a detailed report containing 36 recommendations for legislation, treatment, education, information, detection and organizational needs. At the same time, two Members of Knesset asked the NCC whether it was necessary to amend existing legislation. Among the areas identified by the Center for the Child and the Law as requiring new legislation was the legal status of child abuse itself. As for other issues, the Center had a proposal for legislation already prepared, together with a detailed information campaign promoting its importance, both only awaiting the opportune moment to be put into action. That opportunity had now arrived.

Intensive lobbying was required to overcome all the objections and reservations put to the Committee by various experts and Committee members and keep the legislation moving forward. The NCC played a double role. It both served as official advisor to the Committee, helping to prepare documents, testimony and a great deal of oral and written background material and, at the same time, managed an intensive lobbying campaign, resorting to a range of overt and behind the scenes tactics.

For every Committee member, the NCC had compiled a kit containing, inter alia, examples of similar legislation in other countries. To overcome resistance on the obligation to report issue, for instance, Committee members received a comparative table on how this obligation was handled in all American States and in other countries, listing who was bound to report, to whom and in what circumstances. These existing precedents were instrumental in defeating the opposition on this issue.

To some who at first objected to punishment on the grounds that the matter was a cultural or intrafamily one, case histories were presented, with slides, describing the severe types of injury to children. Here, too, a picture proved to be worth a thousand words.

To sustain the momentum on the issue among the general public, measures were taken to attract broad media coverage. Professionals from different disciplines were enlisted (e.g. psychologists who agreed that the duty to report should apply to psychologists) and public figures worked behind the scenes meeting individually with Members of Knesset on the Committee.

During the Committee's deliberations, judgement was handed down in the case of Moran's uncle, whose maltreatment had caused her death. It described in horrible detail the abuse the child had suffered and the astonishing fact that despite its protractedness, no one had reported it, neither relatives nor neighbors nor professionals. The detailed judgement gave extra impetus to the legislative process through the Committee, the Chairman repeatedly citing it, particularly in moments of crisis.

The NCC's importance in all things related to public information and education was very obvious. Public awareness and public opinion are not self-generating. It was necessary to publicize material, to explain the issue verbally and in print and to feed the media with "stories" and examples from among the many cases handled by the NCC, all in order to keep the subject on the public agenda. The NCC's vast experience in public information and education and its contacts in the media materially assisted the work of creating a supportive climate among the public at large and specifically among legislators.

The 28th November, 1989, had been designated by the NCC and the Presidency of the Knesset as "Children's Rights Day in the Knesset". This date, set long in advance, was to climax the activities on behalf of Children's Rights Year in Israel. Knowing this, the Legislative Committee set the goal of concluding its work and presenting the Law for final approval on that day. It succeeded and the Law was in fact brought for its second and third readings on Children's Rights Day in the Knesset, November 28th, 1989. As Members spoke in debate of the Law's importance, a large number of children and youths, as well as professionals and representatives of the NCC, were in the visitors' gallery to hear them. The Law passed its final reading by a vote of thirty-six for to none against and none abstaining.

The New Law

Some of the Law's key principles, both declarative and practical, are worth noting:

* Child abuse within the family is very positively not an internal family matter but a bane that society will not tolerate and concerning which it sees cause to intervene;

* Child abuse is a grave criminal offense;

* It is the clear moral and legal duty of the public in general and family members and professionals in particular to break the conspiracy of silence surrounding the subject. It is no longer permissible to say, "It is not my business; it is not for me to interfere."

* Child abuse is not restricted to visible, physical injury but comprehends a wide range of forms of abuse including neglect, physical injury, sexual maltreatment and emotional or mental harm.

* Also deserving mention are the chief practical principles and innovations:

* Abuse of children or the helpless is a crime separately specified by the Penal Code. It is an especially grave felony when committed by a parent, family member or person responsible for the child;

* Those responsible for the child include not only parents but also other adults under whose care or influence the child may be;

* "Abuse" includes not only physical injury but a variety of injuries, including sexual offenses and emotional abuse;

* The parent or responsible person has the duty to ensure the child's health and needs and prevent injury or abuse to him/her. Beyond abuse itself, the failure to stop abuse is also an offense;

* It is the duty of anyone with reasonable suspicion that a child is being abused by the person responsible for him to report the matter to the authorities. The duty to report is binding on family members and professionals. Anyone who knows of an incident of child abuse and fails to report it as required by law faces punishment and even imprisonment;

* The duty to report is binding on educational institutions in every instance of abuse or severe injury to children, even if the perpetrator is not responsible for the child, for example another child or group of children;

* A child who has been abused by his/her parent shall not be required to testify against the parent in court; rather, a Special Children's Investigator (not a policeman) shall be allowed to testify on behalf of the child.

It is also noteworthy that, although the Law comes under the criminal code, it specifies elements of treatment and even maps out patterns of communication and coordination between the authorities charged with its enforcement, particularly between the police and social workers (defined by the Youth Law as Welfare Officers).

To round off the picture, within months of the Law's ratification, the Knesset supplemented its legislative action with two statutes. One was an amendment to the Penal Code regarding sexual offenses within the family

(incest) which extended the definition of "family member" and the list of sexual offenses and increased the penalties for these offenses.

The amendment stressed that a sexual offense against a minor within the family is to be viewed more harshly than a similar offense outside the family context. In so doing, the legislature sought to counteract an attitude, which to some extent still obtains, even in the courts, that the fact that the offense occurred within the family somehow mitigates it. Like the previous legislation, this amendment too had been drawn up by the Center for the Child and the Law at the NCC. It was the result of the work of a multidisciplinary expert committee on the subject of incest, who had recommended, inter alia, that the existing law on the subject be amended to broaden its applicability.

The second statute enacted was the Law on the Prevention of Violence within the Family. This is a more general measure and does not refer necessarily to children. Initiated by women's organizations in response to the frequency of wife battering, it is nevertheless of much significance for children too as, for the first time, it allows the aggressor to be removed from the family home. He or she may be removed even before the conclusion of, possibly protracted, due process. This replaces the more common and unfortunate solution whereby it is the child- victim that is removed from home and family.

Results of the Legislation

Four years have passed since the Law came into effect, but it may still be too early to assess its full impact and long-term ramifications. Nonetheless, certain recent developments are attributable to its adoption and some results are already clear, even quantifiable.

There is no question but that the passing of the Law did a great deal to raise public awareness of child abuse. Its enactment has certainly helped Israeli society progress from the "problem" denial stage to open confrontation of the phenomenon and its frequency and gravity. The topic remains on the public agenda to this day.

One must bear in mind that the Law, like every law, also serves a declarative purpose. By laying down intentions and policy and setting norms as to what is allowed and what forbidden, what is slight and what serious, what is desirable and what unacceptable, legislation is the most blatant way for society to express its attitude to a feature of social behavior. This is especially true for topics and issues clouded by ambiguity, obscurity and ambivalence. In this respect the Law has already achieved clear results. Its message that child abuse is a grave and prohibited offense, against which society has a right to interfere, is penetrating more and more sections of the population. The Law itself has become common currency, disseminated in print and by word of mouth and forming the basis for performance guidelines and professional training in the spheres of education, welfare, justice, police, health and others. Over and above its practical consequences for offenders, it has proved an invaluable tool of social education.

Another effect of the Law has been to stimulate the rate of reporting of child abuse. In a single year the nationwide reporting rate at least doubled, in some locations the increase was fivefold. Doubtless, the public's accumulating awareness of the problem was also a factor but the passage of the Law certainly contributed significantly. The courts' attitude is also slowly changing. Punishments are becoming harsher, partly because the Law provides for this, partly because judges are also susceptible, to some degree, to public trends.

NCC Activities

Publicity
Naturally, the NCC took advantage of the new Law to intensify its dissemination of information both to the general public and to professionals. The organization's lawyers prepared a synopsis of the Law in plain, understandable language and hundreds of copies were distributed, primarily to professionals in education, health, law, psychology and social work. At the same time a wide-ranging campaign was begun to educate the general public in their duty to report child abuse. Posters were designed and distributed in thousands (in Hebrew and in Arabic). Giant billboards carrying the message where placed in central locations and attracted much attention. The NCC opened its hotline to the general public to make reporting all the easier.

Monitoring Court Cases
The NCC has also taken the initiative in the matter of court judgements. The courts still give out surprising decisions and sentences in child abuse cases, a tendency attributed by some observers to the justice system's conservatism and slow adaptation to social change. Nevertheless, change can be detected not only in sentencing but in the comments made and the causes cited in the rulings. For some three years, the NCC has methodically monitored and recorded court decisions in every case of child abuse. When the sentence is inappropriately lenient, the NCC demands from the relevant bodies that they appeal it. Most of the appeals submitted in consequence have been allowed by the Supreme Court, which has emphasized the gravity of the offense and the necessity to deal severely with it.

Advocacy for Additional Resources
Slighter, less evident changes are to be found in the social and therapeutic services dealing with the child abuse. The Law established a fait accompli and directed the welfare system to expand and upgrade its facilities with respect to both its intake of reportings and its response to them. The system received some supplement of resources and manpower to meet the new demands on it but much too little and, to some extent, irrelevant. This is the Achilles heel of the national response to child abuse. Welfare professionals are neither unwilling nor indifferent but legislative advance has left treatment resources far in arrears.

The resources Israel has committed to the problem lag far behind those of other industrial democracies and, more importantly, behind the scale of the need in Israel, which is only now coming to light. It is interesting to note that of thirty-six recommendations submitted to the Knesset's Special Committee on Child Abuse only eight have been put into effect and most of these were matters of legislation and amendments to existing law. Material requirements shelters for battered children, a national database, accessible reporting centers and a base for interdisciplinary work, manpower increments, expansion of training facilities, research and knowledge gathering these have remained on paper.

The NCC has been very active in this matter too, making intensive advocacy efforts in the Knesset and government ministries. Success has been partial, e.g. NCC pressure brought about the first shelter for abused children, and there are plans for opening three more. Such advocacy in promoting children's interests and protecting their well being is unfortunately indispensable, for they cannot protect themselves or advance their own most vital needs.