The Many Constitutional Problems with State Child Abuse Registries

Back in March, I wrote a piece entitled, “Factually Innocent California Couple on Child Abuse Registry to Stay,” about Craig and Wendy Humphries who were falsely accused of child abuse by their teenaged daughter. That accusation alone was enough to have the pair’s names placed on the California registry of child abusers. Even though a court later found them to be “factually innocent” of any abuse, they discovered to their shock and dismay that the state legislature had provided no way for an innocent person to have his/her name removed from the registry. So there their names stayed. That was in 2001, and the Humphries have sued the state and county, won and had a federal court of appeals declare the law to be unconstitutional because it doesn’t allow the innocent to have their names removed. Their case is now pending before the United States Supreme Court. And their names remain on the child abuse registry nine years after the fact.

Well, now it turns out that California is not the only state to infringe on the rights of its residents by means of its child abuse registry. This excellent article details several of the states’ problems with their registries and how they got into such a patently unjust situation in the first place (Associated Press, 4/26/10). The reason for the article is the drive to establish a national registry that’s bogged down of late, partly due to revelations about problems with state registries.

Essentially, the problems with the registries boil down to (a) how easy it is to get one’s name on them, and (b) how hard it is to get it off. For example, in many states, a simple accusation is enough to have a person’s name placed on the registry. Astonishingly, the accusation can come from anyone and need not be true. No criminal offense need ever be charged. In short, there’s often no vetting procedure, so don’t be rude to your neighbor or the clerk at the convenience store. They have more power over you than you realize.

As New York attorney Carolyn Kubitschek said,

“Anybody can call a child abuse hotline and report abuse — anybody, including your ex-spouse who hates you, your landlord who’s trying to evict you.”

And once authorities are notified of an accusation, the target’s name is placed on the registry with no opportunity to defend him/herself. If that system sounds like it’s a bit lacking in the due process of law department, courts tend to agree, as does the U.S. Department of Health and Human Services. Last year, the North Carolina Court of Appeals unanimously invalidated the state’s registry process for precisely that reason; it didn’t give people an opportunity to contest the listing of their names.

In New York, the problem is slightly different. There, the state gives people a chance to contest their inclusion on the registry, but actually getting a hearing seems to be next to impossible. That’s because, between 2001 and 2007, the agency often shredded letters requesting hearings or requests were prematurely terminated. So as many as 25,000 people are taking part in a class-action lawsuit demanding hearings to contest their inclusion on the state’s registry. The state has agreed to provide hearings and to refrain from reporting to prospective employers that those requesting one are listed on the registry. But of course it’ll take years for those hearings to take place, during which time employers will be left with no response whatsoever from the agency.

Meanwhile, attorney Thomas Hoffman, who’s spearheading the class action suit says,

“At least 50 percent of the people who get a hearing are exonerated,” Hoffman said. “There are a lot of people who don’t belong there, and it’s taking too long to exonerate them.”

What’s gotten us to this point is the hysteria about child abuse. The fact is that, as the Administration for Children and Families of the U.S. Department of Health and Human Services reported only a few weeks ago, child abuse and neglect are down sharply from previous years. Of that, the vast majority of cases dealt with by child welfare authorities are ones of neglect, not abuse. Of course, neglect can be as injurious as abuse, but there’s little real evidence to justify the type of wholesale denial of basic rights that the registry process so often entails.

As Missouri attorney Timothy Belz said,

“You can’t find a lawyer or judge who isn’t shocked. Yet you go to the legislature and it’s like pulling teeth to get it changed. All it takes is one kid to get molested, one horrible story, and the legislators just go nuts. The legislature ought to require itself to cool off.”

‘Twas ever thus. States always expand their power and diminish the rights and liberties of their citizens while claiming to pursue the most virtuous of goals. John Stuart Mill saw the danger almost two centuries ago. Indeed, the idea of a child abuser registry properly done isn’t necessarily bad. Such a registry could serve to prevent children’s exposure to known dangers. But when states seek greater power, it should only come with firm due process requirements attached. That’s one of the central ideas of our Bill of Rights. It’s one state legislatures all too often ignore, which is why the Bill of Rights was written in the first place.

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