The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
At the Annual Meeting of the American Bar Association’s House of Delegates, on August 6-7. 2012, the ABA approved new policies related to three topics: extending criminal statutes of limitations in cases of child sexual abuse; improving identification of and responses to individuals with fetal alcohol spectrum disorders; and supporting enrollment in and successful completion of postsecondary education by youth who are or have been in foster care.
Child Sexual Abuse Criminal Statutes of Limitations
With media reporting on incidents of child abuse by adults committed many years earlier, there is renewed public policy attention to Statutes of Limitations (SOLs), state laws that prevent prosecutions and convictions where judicial proceedings are not brought timely.
The ABA Criminal Justice Section sponsored this approved resolution urging governments at all levels to review their criminal SOLs to determine whether special factors warrant extending them with child sex abuse crimes. The resolution states that this re-examination should occur despite several problems judicially pursuing long-ago offenses, such as faded memory and deterioration of evidence. It also urges examining special factors in this new legislative analysis, including victim age at time of offense, inability to report the offense, and the confusing abuse of trust that often inhibits such crimes from being disclosed.
The report accompanying the policy resolution discusses the unequal power between child victims and their adult perpetrators, special child victim vulnerabilities, and other factors inhibiting reporting of intrafamilial sex abuse. The report states that existing SOLs do not promote efficient justice or fairness in these cases, and the public interest favors reforming these laws.
The report analyzes variations in state SOL reforms, and lists six states that permit prosecution of child sexual abuse at least 20 years after the victim’s 18th birthday; 17 states have completely eliminated SOLs for sexual offenses against children. Although the new ABA policy does not take a position on how, or whether, SOLs should be eliminated or extended, it should help advocates hoping to prod changes in their state legislatures to better assure justice for child sexual abuse survivors.
Fetal Alcohol Spectrum Disorders (FASD), a group of conditions that can occur in individuals whose mothers drank alcohol during pregnancy, can result in birth defects, growth and developmental deficits, cognitive and learning problems, executive functioning difficulties, and social/behavioral impediments. It affects from 2-5% of younger school children, with as many as 70% of foster children affected by prenatal alcohol exposure.
One study of juvenile court-involved youth found that over 23% had an FASD diagnosis. Because lawyers and judges are largely unaware of this disability and its impact, the ABA Commission on Youth at Risk, following its February 2012 half-day CLE program on FASD at the ABA’s last Midyear Meting, sponsored this policy resolution to promote improvements in the legal and judicial response to those with FASD.
The resolution calls for better understanding of the impact of FASD on those in the child welfare, juvenile justice, and adult criminal justice systems. It calls for enhancing legal and judicial collaborations with experts on FASD within the medical, mental health, and disability community. In addition, asking bar associations and law schools to train on this issue, the resolution urges new laws and policies that acknowledge and treat the effects of prenatal alcohol exposure and assist children and adults living with FASD.
The report accompanying the resolution calls for increased access to FASD expert screening and assessment, special attention to the overabundance of FASD-affected people in the foster care system, delinquency cases, adult criminal proceedings, and correctional facilities. It encourages considering FASD in mitigation of sentencing and in alternatives to incarceration and execution. Overall, it “provides a road map, for legal professionals, lawmakers, and those in government who deal with youth at risk, to increase awareness of FASD.”
The ABA Center on Children and the Law has a special section of its web site with materials and links related to FASD legal issues, at: www.americanbar.org/groups/child_law/what_we_do/projects/child_and_adolescent_health/fasd.html
For many years, the ABA Center on Children and the Law, through its Legal Center for Foster Care and Education, has led in educational policy reform related to children in the foster care system. That work has largely focused on elementary and secondary schools, and in particular on implementing federal requirements related to school stability when a child is removed from home due to abuse or neglect.
Now, since federal law provides financial assistance to states that keep youth in foster care through to age 21, aiding these youth in post high school college or vocational education has risen in importance. Because only an estimated 3-11% of foster youth graduate with a bachelor’s degree, the resolution asks lawyers and judges, those in child welfare and education agencies, and legislators to support enrollment in and successful completion of higher education for these youth.
The ABA Commission on Youth at Risk sponsored this resolution with the hope that new policies across the country will focus not only on two and four-year college degrees for these youth, but also the value of vocational training and other higher education programs for them. The report accompanying the resolution identifies several needed areas of focus:
- preparing foster youth while still in high school, or earlier, for college through special college immersion experience programs;
- providing pre-college internship opportunities, as well as higher education and job fairs;
- offering foster youth-specific programs are suggested that will: assist in filling out financial aid forms;
- offering year round on-campus housing;
- creating special tuition waiver/scholarship opportunities;
- assuring education programs are tailored to youths’ needs, including those with disabilities; and
- helping these youth attain financial security while protecting them from predatory loan practices.
Finally, the report calls for improving data collection that tracks current and former foster youth success overall in higher education.
Howard Davidson, JD, is the director of the ABA Center on Children and the Law, Washington, DC.