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LEGAL ISSUES: The Judicial System

Child abuse cases may be addressed in civil court, criminal court, or both. While varying theories of criminal justice abound, criminal courts review evidence and, when determined guilty, hold violators accountable, typically through fines, probation, or incarceration. In civil courts, other remedies are sought to resolve conflicts or disputes. Courts are established on federal, state, and local levels. Jurisdiction and procedure vary at each level.


Criminal Court
line spacer Criminal courts address the interest of the state. Consequently, the prosecutor, on behalf of the state, pursues charges against the suspect or defendant. The state is represented by the prosecuting attorney (district attorney) and the defendant by counsel he or she has hired, or if the defendant is determined to be indigent, by counsel appointed by the court. The victim is not represented by counsel in criminal court. The victim is a witness who, like other witnesses, can provide relevant, material testimony. In New York State, children under the age of nine cannot testify under oath until qualified to testify by the court.

Prosecution of most crimes, including child abuse crimes, can be barred entirely if charges are not filed in a timely manner or before expiration of the statute of limitations. The typical statute of limitations in New York State is three years for a misdemeanor crime and five years for a felony crime. New York, like many states, has changed the statute of limitations for crimes of child sexual abuse. In some instances the three and five year statutory time limits will not begin in cases of child sexual abuse until the child discloses the abuse or, at the latest, until the child reaches the age of 18. There is no statute of limitations for the crime of murder. For a summary of Sex Offense Statute ~ 130 and the Sexual Assault Reform Act (SARA) see www.svfreenyc.org/ . Then click on Survivors & Friends, then New York State Laws.

The right to confront one's accusers includes the right to question or cross-examine the person who makes a statement considered to be evidence against the accused. Consequently, under most circumstances, a witness cannot testify to what someone else said, such out-of-court statements being prohibited as hearsay. Exceptions are allowed under limited circumstances. For more information, see: LEGAL ISSUES: Testifying as a Fact Witness, Hearsay Evidence. The Constitution grants defendants other familiar rights as well: the right to a speedy trial, to a trial by a jury of their peers, and to punishment that is neither cruel nor unusual.

The burden of proof for criminal proceedings is beyond reasonable doubt. Constitutional safeguards require the prosecution to have the burden of proving, beyond a reasonable doubt, that the defendant committed the crime in question. The defendant is presumed innocent until proven guilty. The defendant has the right to confront the witnesses against him or her, requiring a child witness, except under very limited circumstances, to testify in open or public court.

Should the right of a defendant be materially violated in the course of an investigation or trial, the conviction of the defendant may be overturned. A defendant cannot be tried more than one time for a crime, or face double jeopardy. Consequently, an investigative or prosecutorial error may cause the conviction to be overturned, with prejudice, on appeal. Depending on the error, this prohibits the re-trial of the defendant or results in a new trial. Prosecutors and police typically take great pains, therefore, to avoid errors that may result in the inability to successfully prosecute a criminal defendant. These efforts are often frustrating and confusing to victims, family members, other witnesses, and the public. You may be called upon to help the child victim and family to be patient with the legal process. In such instances consider referral to a local Rape Crisis Center for further support through a victim advocate. New York State Rape Crisis Centers can be located at
http://nyscasa.org/ .


Civil Court
line line As a medical provider who treats child abuse you may also become involved in civil courts. In New York, family court is charged with adjudicating violations of Social Services Law that prohibit child abuse through child abuse and neglect proceedings brought by counsel for social services departments. In many jurisdictions these courts are commonly referred to as juvenile courts. As the name implies, these cases involve family members, or in some instances, other legal guardians, custodians, or caregivers who are legally responsible for the care of the child.

The primary goal of family and juvenile court proceedings is to protect the best interest of the child. Inherent in both statute and case precedent is the belief that the best interest of the child is most often served when that child remains with his or her own family.

Family court has concurrent jurisdiction with criminal courts in child abuse cases. Determination of which proceeding will occur first is largely a matter of local practice. Due to differences in burdens of proof and evidentiary rules, an accused abuser (or respondent) may be successfully adjudicated in family court but acquitted in criminal court. The reverse may also occur, but is less likely. The burden of proof in family court is significantly lower than beyond a reasonable doubt. A preponderance of the evidence is necessary for adjudication of charges of abuse and neglect in the civil courts. A higher standard, clear and convincing evidence, is needed to terminate parental rights.

Evidentiary rules may also differ in civil courts. Hearsay evidence, for example, may be accepted under more circumstances in family court than in criminal court. As a result, a child witness is less likely to be required to testify. If a child made a statement to another individual, that person may be able to testify to the child's statements.

You may find yourself involved in civil court cases under other circumstances as well. You may be called to testify in custody and visitation disputes that involve child abuse allegations. Lawsuits may be filed against alleged abusers or against third parties for damages resulting from the abuse or the failure of the third party to meet their obligation to protect the child from abuse, including failure to meet legal obligations to report.


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Legal Issues: Overview  Legal Issues: Consent by Mature or Emancipated Minors  Legal Issues: Protective Custody  Legal Issues: Medical Records  Legal Issues: Confidential and Privileged Communication  Legal Issues: Subpoenas  Legal Issues: Judicial System  Legal Issues: Testifying as a Fact Witness   Legal Issues: Testifying as an Expert  Legal Issues: Testifying in Court  Legal Issues: Additional Resources 

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