Parents are allowed by law to interact with and discipline their own children as they see fit as long as the child is not harmed. Others who stand in for parents (in loco parentis—teachers, childcare providers, camp counselors, etc.) also are allowed by law to interact with children physically and verbally as needed for the sake of the children’s well-being. However, when certain limitations of physical discipline or sexually-oriented interaction are violated, it is considered child abuse.
Any accusation related to crimes such as child abuse or child neglect is a very serious matter, and it’s important to engage an experienced child abuse defense attorney to help ensure everyone’s rights are upheld. Child abuse of a sexual nature can involve emotionally charged accusations, colorful media coverage, and preconceived assumptions on the part of law enforcement officers and courts – all complicating factors in any child abuse legal case.
Child abuse defense should begin with understanding legal definitions of child abuse and child sexual assault. This article reviews statutory definitions, explains the different types of child abuse under the law, and then describes approaches of child abuse defense attorneys.
What is Child Abuse and Child Sexual Assault?
Both federal and state laws officially define child abuse, including child sexual assault. Federal law primarily is used to set minimum standards for states to receive prevention funding, and each state creates its own definitions of child abuse within state laws. Cases involving child abuse and child sexual assault usually are handled in state civil or criminal courts, unless they involve a high degree of violence or cross state lines.
Federal child abuse laws
The Federal Child Abuse Prevention and Treatment Act (CAPTA Reauthorization Act of 2010) defines child abuse as: 1) “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation"; or 2) "An act or failure to act which presents an imminent risk of serious harm." The law applies to criminal actions against minors (younger than 18 and not emancipated). For more information about federal law and child sexual abuse, see the U.S. Department of Justice’s Citizens Guide to U.S. Law on Child Sexual Abuse.
Child sexual abuse, sex trafficking of minors, and child pornography primarily are governed by federal laws titled Sexual Exploitation of Children (Production of Pornography) and the Selling and Buying of Children, among other related laws. For more information about federal law related to child pornography, see the U.S. Department of Justice’s Citizens Guide to U.S. Law on Child Pornography.
Nebraska child abuse laws
Berry Law Firm operates in Eastern Nebraska, most often in Omaha, Lincoln and Seward where the firm’s offices are located. In Nebraska, child abuse is defined by a series of Nebraska Revised Statutes governing different types of crimes, including child sexual abuse:
Physical abuse: Nebraska Revised Statute 28-710 – “‘Child abuse or neglect’ means knowingly, intentionally, or negligently causing, or permitting a minor child to be placed in a situation that endangers his or her life or physical health or causes or permits a child to be cruelly confined or cruelly punished.”
Neglect: Nebraska Revised Statute 28-710 – “‘Child abuse or neglect’ means knowingly, intentionally, or negligently causing or permitting a minor child to be deprived of necessary food, clothing, shelter, or care or causing or permitting a child age 6 or younger to be left unattended in a motor vehicle.”
Emotional abuse: Nebraska Revised Statute 28-710 – “The term ‘child abuse or neglect’ includes knowingly, intentionally, or negligently causing or permitting a minor child to be placed in a situation that endangers his or her mental health.”
Abandonment: Nebraska Revised Statute 28-705 – “When a person abandons and neglects to provide for his or her child or dependent stepchild for 3 consecutive months or more, it shall be prima facie evidence of intent to commit abandonment of a child or dependent stepchild.”
Sexual abuse/exploitation: Nebraska Revised Statute 28-710 – “The term ‘child abuse or neglect’ includes knowingly, intentionally, or negligently causing or permitting a minor child to be sexually abused or sexually exploited by allowing, encouraging, or forcing the child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions.”
It is possible to be charged with more than one of these crimes under the umbrella of child abuse. Additional statutes require mandatory reporting by anyone who has cause to believe a child has been subjected to child abuse or neglect, with a special law requiring a report when anyone is responsible for the abuse or neglect of a child. Those found guilty of a child-abuse-related crime have their names recorded in the Child Abuse Central Register, a database of child abuse cases that may be reviewed by employers in certain occupations before hiring an employee.
Child Sexual Abuse
Nebraska statutes governing child abuse in general are included in Chapter 28 of the Nebraska Revised Statutes, Sections 707 through Section 730. Additional statutes specifically outline sexual crimes against children. Nebraska statutes 28-319.01 and 28-320.01 relate to sexual assault of a child. Nebraska statute 28-320.02 governs crimes involving the use of electronic devices to solicit minors for any sex-related activity. Child pornography is governed, in part, by Nebraska statute 28-813.01.
Child sexual assault is a form of child abuse that generally refers to sexual acts with a child, while “sexual exploitation” refers to victimizing a child by exploiting them for prostitution or trafficking. “Sexual grooming” or “child solicitation” refer to manipulating a child to make it more likely they will accept sexual advances – this is often takes place in online conversations. Child sexual abuse is also called child molestation, and when the molestation comes from a family member it is referred to as incest.
The laws state that children are not capable of consenting to sexual activity with an adult, even if the child says they are. The American Psychological Association backed up this definition and formally condemned any sexual activity with a child by an adult. The issue of consent can be complicated when an older minor child gives verbal consent. Adults are expected to know the law does not recognize this kind of consent, and sexual activity with an older child still can result in charges for “statutory rape.”
Defense of Child Abuse Accusations: Sexual Assault
Defense against child abuse accusations can be difficult, in part because the media may make negative assumptions about an accused person even before a trial is conducted. The testimony of a child can make defense further difficult.
Police often seek prosecution of a child sexual abuse case even though there is only thin evidence. Even accusations with no conviction can result in damaging consequences, such as loss of a job or professional license. Further, an accusation, even if the accused is innocent, can end personal relationships and cause a great deal of embarrassment.
Because of the inflammatory nature of child abuse, including child sexual assault and child pornography, it is important to strongly counter allegations and provide clear proof that the charges are unfounded. Defenses against child abuse involving sexual assault include casting doubt on the prosecutor’s case, proving harm to a child was an accident, or proving an accusation is false as in a recent case in which the accused was defended by Berry Law Firm attorney and practice owner, John S. Berry.
Defenses also can entail proving that any harm done was the result of something other than child abuse. For example, an adult may have removed their own article of clothing for an innocent reason near a child, but someone else may have seen them, assumed there was a sexual motive, and reported it as a crime.
Remember, an accused person has the right to remain silent and consult an attorney who is an expert in this type of case, as well as the right to a fair trial.
If you or someone you know is facing allegations of child abuse, child sexual assault, or child pornography, you may want to call an experienced child abuse attorney, such as those at Berry Law Firm.