Public Law and Legal Theory Research Paper Series

Research Paper No. #14-23

The Young and the Helpless: Re-defining

the Term Child Victim of Crime

Michal Gilad
University of Pennsylvania

This paper can be downloaded without charge from the Social Science Research Network
Electronic Paper collection: http://ssrn.com/abstract=2467182

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THE YOUNG AND THE HELPLESS: RE-DEFINING

THE TERM CHILD VICTIM OF CRIME
MICHAL GILAD 1

Abstract
The victimization of children is estimated to be one of the most costly public health and
public safety problem is our society today. Yet, thus far, no significant efforts have been
made to design a coherent legal definition to the term child victim of crime that
realistically reflects the unique effect of crime on children, and is specifically geared
towards the distinct need and developmental attributes of this group. The result of this
lacuna is a colossal failure of our legal system to protect the most vulnerable and highly
victimized segment of our society, our children. This article provides a comprehensive
framework for the development of an innovative evidence-based definition to the term. To
assure the validity and effectiveness of the proposed definition, the article relies on empirical
research and scientific findings in the field of child development, developmental victimology,
and trauma-informed care. Implementation of the proposed definition will enable the
protection and treatment of millions of children crippled by crime, who currently fall beyond

The author is a Doctoral Researcher at the University of Pennsylvania Law School. She specializes in on the
adaptation of legal doctrines and policies to fit, and properly address, the unique needs of children. She holds an
L.L.M and a Masters in Criminology from the University of Pennsylvania (Distinction Honors), and a law degree
from the University of Tel Aviv Law School (LLB, Magna Cum Laude).
You may contact the author at: gmichal@law.upenn.edu

Electronic copy available at: http://ssrn.com/abstract=2467182

--- DRAFT --the scope of narrow policies designed for adults. It will also help enhance public safely, and
improve fiscal efficiency.

Electronic copy available at: http://ssrn.com/abstract=2467182

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Table of Contents
I.

Introduction ......................................................................................................................... 4

II.

The Problem ........................................................................................................................ 7

Existing Definitions ........................................................................................................ 8
Harm to The Child ........................................................................................................ 12
Harm to Society ............................................................................................................ 14
Steps In The Right Direction ........................................................................................ 15

III.

Children Are Not Miniature Adults ................................................................................. 18

IV.

A New Legal Definition Child Victim of Crime ...................................................... 23

Children Exposed to Crime and Violence .................................................................... 25
Children of Victimized Caregivers............................................................................... 29
Child Witnesses ............................................................................................................ 30
Children with Incarcerated Caregivers ......................................................................... 31

V.

The Intended Effect ........................................................................................................... 33

VI.

The Challenges .................................................................................................................. 40

VII. Conclusion ......................................................................................................................... 43

--- DRAFT --I.

Introduction
Children under the age of majority interact with the criminal justice system on a daily
basis in countless different ways. Inevitably, they are also deeply affected by legal decisions
and policies. Nevertheless, these interactions, decisions and policies are very often governed
by legal principles designed for adults that lack any meaningful consideration of the special
developmental needs of children as a discrete group, and the substantive differences between
children and adults. Consequently, applying to children legal principles and instruments that
were designed to serve adults often yields ineffective results, poor quality of justice, and
irreparable harm to children and society. 2 To remedy these injustices, it is essential to
explore different methods to adapt our justice system, legal policies and legal concepts, to fit,
and properly address, the specific needs and unique characteristics of children. To assure the
efficacy of such revision, law and science must be synthesized, using interdisciplinary
methodologies.
This article marks the initiation of an endeavor to pursue such adaptation, by
developing a new and innovative evidence-based legal definition to the term child victim of
crime.
In recent years, the rising swell of the modern day childrens rights movement has
resulted in growing attention to issues concerning child victims of crime by both domestic
and international legal communities. As a result, policy and legislative proposals in the
international, national, and local levels, as well as scholarly articles discussing the topic ,

See for example my previous work on the integration on children in witness protection programs: Who Will
Protect The Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs, 12 WHITTIER J.
CHILD & FAM. ADVOCACY 43 (2012), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171419

--- DRAFT --have emerged. Despite this proliferation of laws and scholarship addressing specific forms of
victimization, these documents have neglected to provide an explicit legal or normative
definition to the term child victim. Moreover, they often overlook the inherent differences
between children and adults and the unique and multidimensional ways in which crime
affects children. The result is insufficient laws and policies that neither adequately protect this
vulnerable group, nor address the full range of societal and public safety implications of child
victimization.
This article proposes a new framework for the development of a comprehensive and
inclusive child-oriented definition to the term. Such definition should rest on scientific
findings examining the distinct developmental characteristics of children, and the particular
ways children are affected by crime due to their impressionability and vulnerability. The
article will explore the potential of expanding the definition of the term beyond the
conventional direct victimization, to incorporate a broader range of indirect forms of
victimization. These may include the impact on child witnesses, children intensively exposed
to crime and violence, children with caregivers who themselves are victims of crime, and
children of imprisoned caregivers. The implementation of the new definition will potentially
enable the protection and treatment of millions of children crippled by crime, who currently
fall beyond the scope of the narrowly defined policies designed for adults. It will also help
enhance public safely, and facilitate fiscal efficiency.
The article proceeds as following: Section II explains the problem the article aims to
address. The section analyses the deficiency of existing legal definitions of child
victimization, their unsuitability to childrens developmental needs and attributes, and their
failure to capture the true effect of crime on children. It also outlines the grave harms caused
5

--- DRAFT --by the existing legal lacuna, both on the individual and societal level. Section III provides an
interdisciplinary review of the relevant differences between children and adults in the context
of crime victimization, and explains the vital need for a child-oriented legal definition to the
term. Relying on the findings of Sections II and III, section IV lays the foundations for the
proposed evidence-based definition. The intended practical outcomes of implementation of
the proposed definition and its potential benefits are examined in section V. Lastly, section
VI provides a critical analysis of the potential challenges involved in the formulation and
design of the new child-oriented legal definition for the term child victim of crime.
Conclusions follow.

--- DRAFT --II.

The Problem
Children are one of the most highly victimized segments of our society. 3 Despite the
prevalence of this harmful phenomenon, so far, relatively little attention has been devoted to
child victimization as one integrated and cohesive field of study. This is especially evident
when compared to other related fields, such as Juvenile Delinquency. As a result, no
systematic attempts have been made to define the legal term child victim of crime.
Moreover, the extent and nature of child victimization as a public health and public safety
problem, its cumulative effect on our society, and the role our legal system can\should play
in addressing this problem, have not been fully explored. As stated in a recent report by the
Institute of Medicines Committee on Child Maltreatment Research, Policy, and Practice for
the Next Decade [a] critical step in devising effective responses is reasonable agreement on the
definition of the problem and its scope.4
Although tremendous progress was achieved over the past decade by the scientific
community to advance our understanding of crime-induced trauma in children and its
multidimensional ramifications, so far no significant efforts have been made to utilize this
knowledge to inform legal policies in order to enhance protection, and to effectively address the
distinct developmental needs and vulnerabilities of children.
Due to this gap, and absent an explicit definition stating otherwise, existing laws and
policies addressing child victimization often rely on the misguided assumption that, like adult

Patricia Hashima & David Finkelhor, Violent Victimization of Youth Versus Adults in The National Crime
Victimization Survey, 14 Journal of interpersonal Violence 799 (1999); David Finkelhor et al., Childrens Exposure
to Violence: A Comprehensive National Survey, in U.S. DEPT OF JUSTICE, JUVENILE JUSTICE BULLETIN
(Oct. 2009), available at http://www.ncjrs.gov/pdffiles1/ojjdp/227744.pdf
4
Anne Petersen, Joshua Joseph & Monica Feit, New Directions in Child Abuse and Neglect, Institute of Medicine
and National Research Council of The National Academies (2013).

--- DRAFT --victims, a child victim is a minor directly subjected to an act defined by law as a criminal
offense. This narrow and ill-informed interpretation fails to account for the inherent
differences between children and adults and the unique ways in which crime affects children,
which will be discussed in the following section.
Existing Definitions
Even when examining legal instruments that were meant to address the specific issue
of child victimization, we can trace this same misguided definitional assumption, which
implies that no profound attention was devoted to the question of who is a child victim?
One example is the UN Economic and Social Council Resolution on Justice in Matters
Involving Child Victims and Witnesses of Crime. Section IV(9)(a) of this resolution defines
child victims and witnesses as children and adolescents, under the age of 18, who are victims
of crime or witnesses to crime.5 The emphasis here is on the age of the individual, rather than
the scope and nature of the victimization.
Another telling example is the host of federal acts in the United States addressing issues
relevant to child victimization. The primary piece of federal legislation governing services and
compensation provided to crime victims is the Victims of Crime Act of 1984 (VOCA).6
10603(2)(A) and 10603a of the act instruct that priority should be given to programs providing
assistance to child victims, and particularly victims of child abuse.7 Nevertheless, no specific
definition is provided in this act for the term child victim. 10607(e) defines a victim as a

Sec. IV(9)(a), UN Economic and Social Council, Resolution 2005/20 Guidelines on Justice in Matters Involving
Child Victims and Witnesses of Crime (July 2005)
6
42 U.S.C.A. Ch. 112
7
42 USC 10603(2)(A). Similar priority is mandated to services for child victims in Native American Indian tribes
through 42 USC 10601(g).

--- DRAFT --person that has suffered direct physical, emotional, or pecuniary harm as a result of the
commission of a crime.8 Presumably, the same definition, explicitly limited to direct
victimization, also applies to children.
The Federal Child Abuse Prevention and Treatment Act (CAPTA) governs the treatment
of child abuse and maltreatment cases. The act applies exclusively to maltreatment in the hands
of a parent, a guardian or a legal caregiver. It does not cover victimization by other
acquaintances or strangers.9 The CAPTA Reauthorization Act of 2010 amended the original act,
and determined a minimum standard for states as to the set of acts or behaviors that comprise
child abuse and neglect. The amendment defines child abuse and neglect to mean at a
minimum, 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 an act or failure to act
which presents an imminent risk of serious harm10 CAPTA does not provide any specific
definitions for each type of maltreatment, such as physical abuse, neglect, risk of serious
harm, or emotional abuse.11
Each state that accepts CAPTA funding must enact its own definitions of maltreatment
within state civil and criminal statutes, in consideration of the federal minimum standard as the
lowest threshold. While some states enacted relatively narrow definitions of the term, others
provided more inclusive ones. Some states also incorporated into their statutory definitions forms

42 USC 10607(e)
Child Welfare Information Gateway, Childrens Bureau, What Is Child Abuse and Neglect? Recognizing the Signs
and Symptoms 2 (July 2013), https://www.childwelfare.gov/pubs/factsheets/whatiscan.pdf
10
142 The CAPTA Reauthorization Act of 2010
11
Only the terms sexual abuse and the special cases of neglect related to withholding or failing to provide
medically indicated treatment are separately defined.
9

--- DRAFT --of indirect victimization, such as witnessing of domestic violence, and exposure to parental
substance abuse.12
The Victims of Child Abuse Act of 199013, which was reauthorized in 2013, was
specifically designed to improve the treatment of child abuse victims. 13001 finds that too
often the system does not pay sufficient attention to the needs and welfare of the child victim,
aggravating the trauma that the child victim has already experienced.14 The act also recognizes
that there is a national need to enhance coordination among community agencies and
professionals involved in the intervention system is such cases,15 and mandates the institution of
multidisciplinary programs designed to reduce the trauma to the child victim.16 Yet, the
general section of the act provides only a fairly indistinct and vague definition of the term child
abuse to mean physical or sexual abuse or neglect of a child.17
The only definition that is more detailed, and more specifically geared towards the unique
characteristics of children, is provided in the Mandatory Reporting section of the Victims of
Child Abuse Act.18 Under this definition, one of the listed categories that mandate reporting by
the designated professionals is Mental Injury. The act defines Mental Injury as harm to a
childs psychological or intellectual functioning which may be exhibited by severe anxiety,
depression, withdrawal or outward aggressive behavior, or a combination of those behaviors,

12

Child Welfare Information Gateway, Childrens Bureau, What Is Child Abuse and Neglect? Recognizing the
Signs and Symptoms (July 2013), https://www.childwelfare.gov/pubs/factsheets/whatiscan.pdf
13
42 U.S.C. Ch. 132
14
42 U.S.C 13001(4)
15
42 U.S.C 13001(5)
16
42 U.S.C 13001(6)
17
42 U.S.C 13001a
18
42 U.S.C 13031(c)

10

--- DRAFT --which may be demonstrated by a change in behavior, emotional response or cognition.19
Although this definition recognizes a broader spectrum of adverse symptoms of child
victimization, it is likely to cover only cases in which the mental injury is the result of acts
directly intended towards the child, and therefore exclude most forms of indirect victimization.
Furthermore, this definition applies only to the Mandatory Reporting section, rather than the
entire act. It is a telling fact that the category of Mental Injury is completely absent from the
general definition of 13001 described above.
A similar definition to the one appearing in 13001, which includes the Mental Injury
category, also appears in the Child Victims' and Child Witnesses' Rights section of the federal
criminal code,20 which sets special evidentiary procedures for children under the age of 18
involved in federal cases. The special procedures mandated in this section also apply to child
witnesses to a crime committed against another person.21
A review of the relevant U.S. Federal legislation, as well as international law
instruments, reveals the inexistence of a clear, explicit, and consistent definition of the term
child victim of crime. Instead, we find relatively narrow and vague interpretations of the
term, which limit the scope of policies and statutory protections relying on these
interpretations. As a result, the great majority of children negatively affected by crime, and
particularly those suffering from indirect forms of victimization, are not formally recognized
as victims, and thus go largely ignored and untreated. This inadequacy has a
multidimensional effect on the individual and societal levels.

19

42 U.S.C 13031(c)(3)
18 U.S.C.A. 3509
21
18 U.S.C.A. 3509(2)(B)
20

11

--- DRAFT --Harm to The Child

On the individual level, existing research demonstrates that children affected by
crime, due to direct or indirect victimization, exhibit an array of adverse symptoms. These
include aggression; developmental and behavioral problems; attention disorders; attachment
disorders; delays in educational development; and deficit social adaptation. These children
also suffer from increased risk for repeat victimization, mental health problems, and greater
likelihood to engage in substance abuse and\or criminal activity. 22 Differently than adults,
scientific studies demonstrate that indirect forms of victimization affect children in a very similar
manner to direct victimization. These symptoms are particularly common and severe when the
victimization is not acknowledged and the child does not receive treatment and services to
facilitate rehabilitation. 23
The most comprehensive research into forms of childhood trauma, with over 17,000
surveyed participants, is the Adverse Childhood Experience (ACE) Studies. 24 This series of
studies link childhood experiences, including physical, sexual and emotional abuse, neglect ,
exposure to intimate partner violence, substance abuse in the household, and incarceration of
a household member, with a multitude of short- and long-term physical and emotional health
problems.25 In 2012 the original ACE study was replicated by the Philadelphia Urban ACE

22

Frank W. Putnam, The Impact of Trauma on Child Development, 57 Juvenile and Family Court Journal, 1 (2006);
G. Margolin & E. B. Gordis, The Effects of Family And Community Violence On Children, 51 Annual Review of
Psychology 445 (2000).
23
Linda G. Mills, The Justice of Recovery: How the State Can Heal the Violence of Crime, 57 Hastings L.J. 457,
486 (2005).
24
Centers for Disease Control and Prevention, Adverse Childhood Experience (ACE) Study,
http://www.cdc.gov/ace/about.htm.
25
Centers for Disease Control and Prevention, Adverse Childhood Experience (ACE) Study, Prevalence of
Individual Adverse Childhood Experiences ,http://www.cdc.gov/ace/prevalence.htm#6

12

--- DRAFT --Survey, revealing similar results in the more ethnically and socio-economically diverse
population of the city of Philadelphia. 26 Although the ACE projects do not address crimeinduced trauma exclusively, it demonstrates a close link between a wide variety of adverse
health syndromes and direct and indirect forms of childhood victimization.
The studies unraveled very strong scientific evidence that children suffering from the
aforementioned adverse experiences in childhood are more inclined to risk behaviors,
including alcoholism, drug abuse, smoking, depression, suicide attempts, unintended
pregnancies, and intimate partner violence. 27 Moreover, these children were found to be at
greater risk for serious illnesses in adulthood, including cancer, lung, heart, liver and skeletal
diseases, sexually transmitted diseases, depression, and obesity. 28 Unfortunately, although
the project validate the potential effect of direct and indirect child victimization with strong
scientific evidence, considered to be the golden standard of the field, it does not proceed to
translate this body of knowledge into concrete laws and policies that enhance the protection
of children.

26

The Public Health Management Corporation, Findings From The Philadelphia Urban ACE Survey (Sep. 18, 2013),
http://www.instituteforsafefamilies.org/philadelphia-urban-ace-study
27
S. R. Dube, et al., Adverse Childhood Experiences and Personal Alcohol Abuse As An Adult, 27 Addictive
Behaviors 713 (2002); S. R. Dube, et al., Childhood Abuse, Neglect And Household Dysfunction And The Risk of
Illicit Drug Use: The Adverse Childhood Experience Study, 111 Pediatrics 564 (2003); R. F. Anda, et al., Adverse
Childhood Experiences and Smoking During Adolescence and Adulthood, 282 Journal of the American Medical
Association 1652 (1999); S. D. Hillis, el al., The Association Between Adverse Childhood Experiences and Ddolescent
Pregnancy, Long-Term Psychosocial Outcomes, And Fetal Death, 113 Pediatrics 320 (2004); R. F. Anda RF, et al.
Abused Boys, Battered Mothers, And Male Involvement In Teen Pregnancy, 107 Pediatrics 19 (2001); C. L. Whitfield,
et al., Violent Childhood Experiences and The Risk of Intimate Partner Violence in Adults: Assessment In A Large
Health Maintenance Organization, 18 Journal of Interpersonal Violence 166 (2003).
28
Vincent J. Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Many of The Leading
Causes of Death in Adults, The Adverse Childhood Experiences (ACE) Study, 14 Am J Prev Med. 245 (1998).

13

--- DRAFT --Harm to Society

Despite the prevailing misperceptions, the effect the phenomenon of childhood
victimization goes far beyond the individual children, and impairs our society as a whole.
With millions of children untreated and hampered from conducting a healthy and productive
lifestyle, and with heightened risk for substance abuse, criminal behavior, and repeat
victimization, community safety is inevitably compromised, and public funds are unnecessarily
burdened.29
The uneven demographic distribution of direct and indirect child victimization across
society also aggravates existing socio-economic gaps, with disproportional impact on minority
and economically disadvantaged communities. Some researchers estimate this phenomenon to
be one of the most costly public health and public safety problems in the United States. 30
This multidimensional damaging effect is not effectively contained and addressed within
the limited boundaries of the existing adult-oriented legal definitions. It leads to an undesirable
situation, where millions of children severely affected by crime are not formally recognized as
victims, and are ineligible to receive vital treatment and services to alleviate these debilitating
symptoms. Revisiting the legal definition of child victimization in a systematic and profound
manner can help address this problem and relieve the burden of its implications.

29

See for example Linda G. Mills, The Justice of Recovery: How the State Can Heal the Violence of Crime, 57
Hastings L.J. 457, 481-6 (2005).
30
Frank W. Putnam, The Impact of Trauma on Child Development, 57 Juvenile and Family Court Journal, 1, 2
(2006); Erica J. Adams, Justice Policy Institute, Healing Invisible Wounds: Why Investing in Trauma-Informed
Care for Children Makes Sense 1 (2010).

14

--- DRAFT --Steps In The Right Direction

Despite the lack of one inclusive child-oriented definitions, statutes and case law can
be identified which indicate the budding of a broader understanding of child victimization ,
which begins to shutter the direct victimization paradigm. In many ways,, these legal
instruments can be seen as attempts by courts, legislatures and policy-makers to fill the void
the existing narrow interpretation of child victimization has created.
Several federal and state legislatures have tied together the procedural rules aimed to
protect child victims and child witnesses. 31 These rules apply also in cases when the child
witness is not a direct victim. By equating the protection of the two categories of children,
recognition of the status of child witnesses as indirect victims of crime, and of their need for
special protection, is implied. Similar equivalence between child victims and child witnesses
can be found in international instruments, like the UN Guidelines on Justice in Matters
Involving Child Victims and Witnesses of Crime. 32
Statutory provisions and case law requiring the consideration of violence in the
household in custody decisions also suggest a broader understanding of child victimization
and the harm violence exposure inflicts on children. Most of these provisions apply in cases
where the child was not physically harmed. 33 Many states statutes do not require proof that

31

See for example: 18 U.S.C. 3509 (Supp. 1999); Code of Ala. 15-25; 11 Del. C. 5131-4; N.D. Cent. Code,
12.1-35; 42 Pa.C.S. 5981-8; Rev. Code Wash. (ARCW) 7.69A.010-050. See also: U.S. DEPT OF JUSTICE,
ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE 1 (2005),
http://www.justice.gov/olp/pdf/ag_guidelines.pdf
32
Resolution 2005/20, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (July 22,
2005).
33
See for example: ALASKA STAT. 25.20.090 (2009); 59. CONN. GEN. STAT. 46b-56(c) (2009); 750 ILL.
COMP. STAT. 5/602(a)(7) (2009); J.M. v. D.V., 877 So. 2d 623 (Ala. 2003); Iverson v. Grif!th, 2006 WL
2578692 (Alaska 2006); John O. v. Margaret E., 2009 WL 2564846 (Cal. Ct. App. 2009); McAninch v. Pittman,

15

--- DRAFT --the child witnessed the violence firsthand, and some statutes go as far as to state that whether
the child witnessed the violence at all is irrelevant. 34 These provisions are extremely
controversial as they often penalize victims of domestic violence instead of providing them
with needed assistance, and the efficacy of the actual protection they provide the child with
is questionable. Nonetheless, they do serve a purpose of acknowledging the harm to the child
as an indirect victim of domestic violence in a broader range of circumstances.
At present, state laws are unclear and inconsistent about whether exposure to domestic
violence in the absence of injury or serious risk of injury to the child would require mandated
reporting to child protective services by the designated professionals.35 Recognizing the danger
to the child resulted from indirect exposure to domestic violence, some states provide an explicit
statutory requirement for mandated reporters to notify child protection services whenever a child
is has been exposed to a parents abuse in the home, whether or not the child has been directly
injured. Yet, in more than half the states, the inherent harms cause by the exposure is not clearly
and explicitly recognized. In these states, a childs exposure to domestic violence does not
automatically require mandatory reporting, and discretionary reporting depend on a case-by-case
assessment of the existence of direct injury to a child, the potential danger of the situation, and
the capacity of the mother to keep her children safe.36

2003 WL 1227159 (Ky. Ct. App. 2003); Willis v. Stevens, 2004 WL 2348256 (Mich. Ct. App. 2004) (unpublished);
Pruett v. Prinz, 979 So. 2d 745 (Miss. Ct. App. 2008); Davidson v. Fisher, 96 S.W.3d 160 (Mo. Ct. App. 2003);
Stangeland v. Stangeland, 33 S.W.3d 696 (Mo. Ct. App. 2000).
34
MICH. COMP. LAWS 722.23(k); ARK. CODE ANN. 9-13-101(c)(1); DEL. CODE ANN. tit. 13, 706A(a).
35
Betsy Mcalister Groves, et al., Family Violence Prevention Fund, Identifying and Responding to Domestic
Violence: Consensus Recommendations For child and Adolescents Health 11 (2004),
http://www.futureswithoutviolence.org/userfiles/file/HealthCare/pediatric.pdf
36
Betsy Mcalister Groves, et al., Family Violence Prevention Fund, Identifying and Responding to Domestic
Violence: Consensus Recommendations For child and Adolescents Health 11 (2004),

16

--- DRAFT --Criminal child endangerment and neglect laws in numerous states penalize the
exposure of children to violence and illicit drug use. These statutory acts are based on the
premise that witnessing such criminal behavior, even when the child is not the direct victim
of the crime, is detrimental to the child. 37 For example, in the state of Delaware, criminal
endangerment of a childs welfare is defined to include the commission of a violent felony
with the knowledge that a child has witnessed the crime. 38 In several states, including New
York, California, and Texas, domestic batterers have been prosecuted under the child
endangerment statutes based on children witnessing adult violence. 39 Additionally, penalty
enhancement provisions are available in some states, which apply when the crime was
committed in the presence of a child.40 For example, in Washington, a crime involving
domestic violence that is committed within the sight or sound of children can justify an
increased sentence.41
Similarly, some states address, in their definition of child abuse and neglect or in
other criminal provisions, the issue of exposure of children to illegal drug activity. 42

http://www.futureswithoutviolence.org/userfiles/file/HealthCare/pediatric.pdf (See Appendix X for a compilation of

State statutes on mandated reporting of children exposed to domestic violence).
37
CAL. FAM. CODE 3020; CAL. FAM. CODE 3011; NEB. REV. STAT. 43-2921.
38
Del. Code Ann. tit. 11 1102(a)(4). See also A. Hagemeister, Overlap of domestic violence and child
maltreatment in USA state civil and criminal statutes, www.mincava.umn.edu/ link/ documents/ statutes/
statutes.shtml (2003).
39
A. E. Stone & R. J. Falk, Recent developments: Criminalizing the exposure of children to family violence:
Breaking the cycle of abuse, 20 Harvard Womens Law Journal 205 (1997).
40
A. Hagemeister, Overlap of domestic violence and child maltreatment in USA state civil and criminal statutes,
www.mincava.umn.edu/ link/ documents/ statutes/ statutes.shtml (2003).
41
Wash. Rev. Code 9.94A.390
42
Child Welfare Information Gateway, Parental Drug Use as Child Abuse 2-3 (July 2012)
https://www.childwelfare.gov/systemwide/laws_policies/statutes/drugexposed.pdf

17

--- DRAFT --Sentencing enhancement provisions for drug offenses committed in the presence of children
are also available.43
Additionally, the US federal government allocates limited funds to the development
and implementation of programs and services to address some categories of indirect
victimization. For example, 3797cc-2 provides grants to programs that aid children who are
living in a home in which methamphetamine or other controlled substances are unlawfully
manufactured, distributed, dispensed, or used.44 The Second Chance Act provides support to
states in the development of best practices for children with incarcerated parents.45
This multitude of scattered suggestive expansions of the interpretation of child
victimization signifies a need for a unified inclusive definition of the term, to facilitate the
systems protection of children. Existing solutions reflect insufficient understanding by law
and policy makers of the full impact of crime on children. The new definition will enable
transformation of the existing isolated and inconsistent efforts into a scientifically informed,
systematic, methodical, and strategic plan, which will enhance effectiveness and viability.

III.

Children Are Not Miniature Adults

The need for a separate definition for child victimization rests on the argument that
there is a relevant difference between children and adults in this context, and that children
are not merely miniature adults. The Convention on the Rights of the Child recognizes that

43

See for example: Ark. Ann. Code 5-64-407. See also: Child Welfare Information Gateway, Parental Drug Use
as Child Abuse (July 2012) https://www.childwelfare.gov/systemwide/laws_policies/statutes/drugexposed.pdf
44
Grants for programs for drug-endangered children 42 U.S.C.A. 3797cc-2
45
Addressing the needs of children of incarcerated parents 42 U.S.C.A. 17553

18

--- DRAFT --childhood is entitled to special care and assistance and that the child, by reason of his
physical and mental immaturity, needs special safeguards and care, including appropriate
legal protections.46 The UN Economic and Social Council (ECOSOC) further elaborates in its
resolutions addressing issues concerning child victims and witnesses that children who are
victims and witnesses are particularly vulnerable and need special protection, assistance and
support appropriate to their age, level of maturity and unique needs, in order to prevent further
hardship and trauma.47
The developmental, physical, social, and cultural differences between children and
adults make the former more vulnerable and susceptible to victimization. On average, the
probability of a child suffering direct or indirect victimization is significantly higher than
that of an adult. Furthermore, as a result of developmental differences, the harm caused to
children by victimization is more severe and long-lasting.48
The most obvious difference is that children are physically smaller and weaker than
most adults, and therefore are an easy target for predators. This factor increases vulnerability
for direct victimization. However, there is a multitude of additional distinctions that
substantially broaden the damaging effect of crime on children, and calls for special
treatment and protection.

46

Convention on the Rights of the Child (1990)

UN Economic and Social Council, Resolution 2004/27 Guidelines On Justice For Child Victims and Witnesses of
Crime (July 2004); UN Economic and Social Council, Resolution 2005/20 Guidelines on Justice in Matters
involving Child Victims and Witnesses of Crime (July 2005).
48
David Finkelhor & Kathleen Kendall-Tackett, A Developmental Perspective on the Childhood Impact of Crime,
Abuse & Violent Victimization, in D. Cicchetti & S. Toth (Eds.), Developmental Perspectives on Trauma: Theory,
Research, and Intervention 1-32 (1997).
47

19

--- DRAFT --Children are in critical stage of their emotional and cognitive development, their
identity is not yet formed, and their personality traits are in transitory stages. As a result,
they are considered to be significantly more vulnerable and susceptible to external influences
and pressures.49 They are less mentally stable, and are extremely sensitive to psychological
damage.50 Victimology experts like Dr. Linda Mills recognize that the child is at risk of
developing a host of symptoms and reactions that become embedded in the individual's core
personality structure.51 The enhanced impressionability of childrens personality and
character also overexposes them to different forms of indirect victimization. Furthermore, the
underdeveloped cognitive capacity of most children and their emotional sensitivity limits
their ability to process and cope with trauma and heal without external assistance.52
Consequently, exposure to crime and violence is particularly harmful to children,53 and has a
long-term, often permanent, impact.
As a factor of their social and psychological immaturity children are dependent on
adults for their survival and basic needs.54 Experts in the field observe that [a]lthough
indirect victimization affects adults as well as children, the latter are particularly vulnerable

49

Jessica Feierman et al., The Eighth Amendment Evolves: Defining Cruel And Unusual Punishment Through The
Lens Of Childhood And Adolescence, 15 University of Pennsylvania Journal of Law and Social Policy 285, 294297 (2012).
50
Roper v. Simmons, 543 U.S. 551, 569-70 (2005)
51
Linda G. Mills, The Justice of Recovery: How the State Can Heal the Violence of Crime, 57 Hastings L.J. 457,
486 (2005).
52
Jessica Feierman et al., The Eighth Amendment Evolves: Defining Cruel And Unusual Punishment Through The
Lens Of Childhood And Adolescence, 15 University of Pennsylvania Journal of Law and Social Policy 285, 296
(2012).
53
Cari Michaels, The Impact of Trauma on Infants, Children, Youth & Family Consortium Childrens Mental
Health eREVIEW (January 2012), available at:
http://conservancy.umn.edu/bitstream/120665/1/cmhereviewJan12.pdf; Steven Marans & Anne Adelman,
Experiencing Violence in a Developmental Context, in Children in a Violent Society (Joy D. Osofsky, ed.) 202,
204-5 (1997).
54
Elizabeth Scott, The Legal Construction of Childhood, 29 Hofstra U. L. Rev. 541, 546 (2000).

20

--- DRAFT --to its effects, due to their dependency on those being victimized. 55 Thus, when a caregiver is
subjected to victimization, illegal substance abuse, or incarceration, the dependent children
are often deprived of the care, affection, guidance, and protection essential for their
development into healthy, productive members of society.
Moreover, due to their dependency status, children have comparatively little choice
over their living environment, and whom they associate with. Research presented in the
American Psychological Association Amicus Brief submitted to the US Supreme Court in
Graham v. Florida56 finds that Adolescents are dependent on living circumstances of their
parents and families and hence are vulnerable to the impact of conditions well beyond their
control.57 Justice Kagan, delivering the Opinion of The Court in Miller v. Alabama,
reinforced the fact that juveniles have limited control over their own environment, and are
usually unable to extricate themselves from their surrounding environment, no matter how
brutal or dysfunctional it is.58 Thus, children do not have the capabilities or resources to
remove themselves from harmful circumstances and escape victimization.59 Furthermore,

55

David Finkelhor , Developmental Victimology: The comprehensive study of childhood victimization, in R. C.

David, et al. (Eds),Victims of crime (3rd ed.) 9,12 (2007)
56
Graham v. Florida, 130 S. Ct. 2011, 2017 (2010)
57
Brief For The American Psychological Association, American Psychiatric Association, National Association Of
Social Workers, And Mental Health America As Amici Curiae Supporting Petitioners at 15, Graham v. Florida, 130
S. Ct. 2011, 2017 (2010) (Nos. 08-7412, 08-7621), http://www.apa.org/about/offices/ogc/amicus/graham-v-floridasullivan.pdf; Alan E. Kazdin, Adolescent Development, Mental Disorders, and Decision Making of Delinquent
Youths, in Youth on Trial 33, 47 (Thomas Grisso & Robert G. Schwartz eds., 2000). (Although this series of
Supreme Court cases, including Roper, Graham and Miller, dealt with juveniles offenders rather than victims, the
court and amicis analysis of scientific developmental psychology is useful for an understanding of the special needs
of juvenile and their unique characteristics and behavioral traits).
58
Miller v. Alabama, 132 S. Ct. 2455 (2012)
59
David Finkelhor & Patricia Y. Hashima, The Victimization of Children & Youth: A Comprehensive Overview, in
Law and social science perspectives on youth and justice (S.O. White, Ed.) 49, 59-61 (2001)

21

--- DRAFT --they depend on the assistance and initiative of adults to seek help for their rehabilitation and
recovery from trauma.
Another recognized difference, acknowledged in several recent decisions of the U.S.
Supreme Court,60 is childrens diminished decision-making capacities. This is due to
childrens level of cognitive development, immature judgment, and lack of life experiences. 61
Under these circumstances, adults are usually charged with the task of making important
decisions affecting childrens lives. When parents and caregivers are incapacitated by
violence, victimization, or incarceration, their ability to make coherent decision on behalf of
their children, and to fully consider their best interests, is inevitably diminished. This
dynamic increases the vulnerability of children to indirect forms of victimization.
Lastly, children are in the midst of their Legal Socialization. Tom Tyler and Jeffrey
Fagan define Legal Socialization as a process that unfolds during childhood and adolescence,
through which children develop an inclination towards compliance with the law and
cooperation with legal actors. 62 The process is highly affected by childrens exposure to
crime, and their childhood experiences with legal actors, law enforcement, and the justice
system.63 Inferring from the research findings of Tyler and Fagan, it can be asserted that

60

Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S. Ct. 2011, 2017 (2010); Miller v. Alabama,
132 S. Ct. 2455 (2012).
61
Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile
Justice Reform, 88 J. Crim. L. & Criminology 137, 157 (1997). See also: Kim Taylor-Thompson, State of Mind
State of Development, 14 Stan. L. & Policy Rev. 143, 150 (2003); Elizabeth Scott, The Legal Construction of
Childhood, 29 Hofstra U. L. Rev. 541, 546 (2000).
62
Jeffrey Fagan & Tom R. Tyler, Legal Socialization of Children and Adolescent, 18 Social Justice Research 217,
219-222 (2005). See also: Jeffrey Fagan, et al., Developmental Trajectories of Legal Socialization among
Adolescent Offenders 96 Journal of Criminal Law and Criminology 267 (2005).
63
Jeffrey Fagan & Tom R. Tyler, Legal Socialization of Children and Adolescent, 18 Social Justice Research 217
(2005).

22

--- DRAFT --indirect victimization, exposure to crime and violence, and the failure of the legal system to
protect children from these harmful experiences, can interfere with the Legal Socialization
process of affected children. This developmental process may explain the proclivity towards
criminal behavior and illicit substance abuse in individuals affected by direct and indirect
childhood victimization.
Due to this range of vulnerabilities and characteristics unique to children the
definition of adult victimization is not suitable for children. Hence, a separate definition of
child victimization, which reflects the relevant differences between the two groups and
addresses the distinct attributes and needs of children, is justifiable and necessary. As
recently stated Professor Martin Guggenheim, [t]he more we know about what children
need, the further along we will be in doing right by children. But, of course, in our
complicated world, knowledge of children's needs, however vital to our work, is not enough.
We need to translate our knowledge into real policy and law. 64 The creation of a new childoriented definition necessitates the development of such interdisciplinary understanding of
the discrete attributes and needs of children affected by crime and to translate this knowledge
into effective laws and policies.

A New Legal Definition Child Victim of Crime

IV.

The creation of a concrete child-oriented legal definition should emerge from a

profound understanding of the complex and acute problem described above, which

64

Martin Guggenheim, Maximizing Strategies for Pressuring Adults to do Right By Children, 45 ARIZONA LAW
REVIEW 765, 765 (2003).

23

--- DRAFT --compromises the wellbeing of children and our society, and the inadequacy of the application
of our current perception of victimization to children. Additionally, it must be evidencebased and rooted in comprehensive legal as well as social science research, rather than mere
political whims, as is too often the case.
The new definition must reflect the fact that due to their unique characteristics,
vulnerabilities and needs, the injurious effect of crime to children goes far beyond direct
victimization. Accordingly, a broader definition of the term child victim of crime is
necessary, in order to provide a more realistic reflection of the full scope and scale of this
multidimensional effect. This will also enable the provision better protections and services to
members of this vulnerable group.
Hence, the new definition proposed in this article will stretch the boundaries of the existing
adult-oriented legal definition to encompass indirectly victimized groups, which are currently
largely ignored by the system. This expansion will provide formal recognition of several forms
of indirect victimization which are shown by scientific evidence to pose a substantial threat
to the healthy development, safety, and wellbeing of children. These include childrens
chronic exposure to crime and violence, parental victimization, child witnessing, and parental
incarceration. Although each of these forms of indirect victimization, and the justification for
its inclusion in the new definition, will be discussed independently below, it is important to
understand that these categories are not mutually exclusive. It is often the case that children

24

--- DRAFT --experience poly-victimization, and suffer from multiple forms of direct or indirect
victimization, which aggravates the harmful effect to the child. 65
Children Exposed to Crime and Violence66
Children are exposed to crime and violence at the home, school, and the community.
Children were found to be more likely to be exposed to violence and crime than their adult
counterparts.67 The prevalence of child exposure to crime and violence in our society is
expansive. Data collected in 2011 shows that 60 percent of children under the age of 17 in
the United States were exposed to violence within the past year. 68
Exposure to crime and violence is an extremely traumatic, frightening and confusing
event. Processing, interpreting, and attributing meaning to the observed incident is a challenging
process for a child. Violence creates an environment of uncertainty, anxiety, and helplessness
that interrupts the experience of unconditional safety and care necessary for the healthy
development of a child.
The extreme stress caused by chronic exposure of a child to crime and violence was
found to disrupt the development of specific brain structures, therefore impairing executive
functions, including planning, memory, focusing attention, impulse control, and using new

65

Richard K. Ormrod, et al., Poly-victimization: A neglected component in child victimization, 31 Child Abuse &
Neglect 7 (2007); Heather A. Turner, et al., Poly-Victimization in a National Sample of Children and Youth, 38 Am.
J. Prev. Med. 323 (2010).
66
Exposure normally occurs when the child sees, hears or experiences the aftermath of a criminal or violent
incident.
67
Gayla Margolin & Elana B. Gordis, Children's Exposure to Violence In The Family and Community, 13(4)
Current Directions in Psychological Science 152 (2004).
68
David Finkelhor, et al., Violence, Crime, and Abuse Exposure in a National Sample of Children and Youth: An
Update, 167(7) Pediatric 614 (2013).

25

--- DRAFT --information to make decisions.

69

Additionally, the real and perceived threats associated with

chronic exposure to violence may condition a child to react with fear and anxiety to a broad
range of circumstances.70 It can diminish the childs capacity to differentiate between genuine
threats and objectively safe or neutral situations, impair the ability to learn and interact with
others, and lead to serious anxiety disorders. Unlearning such conditioning embedded early in
life is a challenging task that requires active work and evidence-based treatment.71
Research found that children exposed to violence are more likely to suffer from
attachment problems, regressive behavior, anxiety, and depression, aggression, conduct
problems, academic and cognitive problems, delinquency, and other health-related problems.72.
Some studies go as far as showing that even community violence that children do not directly
witness can negatively affect children's attentional abilities and cognitive performance.73
Title III of The Violence Against Women Act (VAWA), Strengthening Americas
Families by Preventing Violence Against Women and Children, deals with the specific case of
child exposure to domestic violence. Section 14043d of the act finds that recent exposure to
violence in the home was a significant factor in predicting a child's violent behavior.74 Exposed

69

National Scientific Council on the Developing Child, Persistent Fear and Anxiety Can Affect Young Children's
Learning and Development: Working paper No. 9, www.developingchild.net (2010) (Affected brain structures
include the Amygdala, Hippocampus, and Prefrontal Cortex)
70
71

Child Trends DataBank, Childrens Exposure to Violence: Indicators on Children and Youth (July 2013),
http://www.childtrends.org/wp-content/uploads/2012/07/118_Exposure_to_Violence.pdf
72
David Finkelhor, et al., Childrens exposure to violence: A comprehensive national survey, U.S. Department of
Justice (2009); Gayla Margolin & Elana B. Gordis, Children's Exposure to Violence In The Family and Community,
13(4) Current Directions in Psychological Science 152 (2004); Naomi N. Duke, et al., Adolescent Violence
Perpetration: Associations With Multiple Types of Adverse Childhood Experiences, 124(4) Pediatric 778 (2010).
73
Patrick T. Sharkey, et al., The Effect of Local Violence on Childrens Attention and Impulse Control, 102(2)
American Journal of Public Health 2287 (2012); Patrick T. Sharkey, The acute effect of local homicides on
childrens cognitive performance, 107(26) PNAS 11733 (2010).
74
42 U.S.C.A. 14043d(3)

26

--- DRAFT --children are also at increased risk for juvenile crime.75 Moreover, it recognizes that a child's
exposure to domestic violence poses the greatest independent risk for being the victim of any
act of partner violence as an adult,76 and that children exposed to domestic violence are more
likely to believe that using violence is an effective means of getting one's needs met and
managing conflict in close relationships.77
Despite the strong association between exposure to violence and harm to the child, these
children are often ignored. Exposed children are often considered the "silent" or "hidden"
victims of violence because their presence is often overlooked by the parents/caregivers or
unknown by observers and professionals.78 Even in domestic violence cases that are reviewed
by a multitude of professionals and service providers, including judges, law enforcement agents,
prosecutors, and case workers, the situation of the children exposed to the violence is often
overlooked, and few of the professionals involved inquire about the children.79 Studies show that
professionals and service providers frequently fail to recognize the connection between exposure
to the violence and harm to children, and responding agencies and institutions do not have proper
protocols and procedures in place to address these children.80

75

42 U.S.C.A. 14043d(7)
42 U.S.C.A. 14043d(5)
77
42 U.S.C.A. 14043d(6)
78
The National Child Traumatic Stress Network (NCTSN), Identifying Children Affected by Domestic Violence,
http://www.nctsn.org/content/identifying-children-affected-domestic-violence
79
Susan Schechter & Jeffrey L. Eldelson, Open Society Institutes Center on Crime, Communities & Culture,
Domestic Violence & Children: Creating A Public Response 3 (2000); The National Child Traumatic Stress
Network (NCTSN), Identifying Children Affected by Domestic Violence, http://www.nctsn.org/content/identifyingchildren-affected-domestic-violence
80
For example, a study of pediatric response to child exposure to domestic violence revealed that only 4.2% of the
surveyed pediatric emergency departments have a protocol in place for responding to such cases. 80 Another study
conducted by the American Prosecutors Research Institute has found that less than half of the prosecution offices
responding to the study survey were aware of protocols directing law enforcement officers to ask about child victims
or witnesses when investigating domestic violence reports. Susan Schechter & Jeffrey L. Eldelson, Open Society
Institutes Center on Crime, Communities & Culture, Domestic Violence & Children: Creating A Public Response 7
76

27

--- DRAFT --As a result, effective intervention is not provided to address the harmful symptoms
associated with the exposure to the violence.81 Experts identify the root of the problem to be lack
of effective policies to enable the identification of the children exposed to violence, or an
organized public response geared towards these children.82
The severity of exposure and its effect may vary depending on the degree of violence, its
proximity to the child, its frequency, and the relationship between the child, the victimizer and
the victim. Based on these criteria, exposure to violence within the home, including intimate
partner violence, and physical or sexual abuse of a sibling, is considered to have the most
adverse effect to the child. However, exposure to other forms of crime and violence has
significant and long-term repercussions as well.
Ultimately, absent the element of physical injury, the short and long term effect of intense
exposure to high levels of crime and violence is very similar to the effect direct victimization has
on children.83 Nevertheless, due to the high prevalence of exposure to violence in our society, it
is vital to make a distinction between different levels and types of exposure when setting the
boundaries of the new definition. Otherwise, there is a risk that the breadth of the de finition
will expand to a scale that deems it impractical, economically unsounds, and ineffective.

(2000); Debra Whitcomb, Children and Domestic Violence: The Prosecutors Response (2004),
https://www.ncjrs.gov/pdffiles1/nij/199721.pdf; R. J. Wright, et al., Response of Battered Mothers in the Pediatric
Emergency Department: A Call For Interdisciplinary Approach to Family Violence, 99 Pediatrics 186 (1997).
81
Susan Schechter & Jeffrey L. Eldelson, Open Society Institutes Center on Crime, Communities & Culture,
Domestic Violence & Children: Creating A Public Response 3 (2000).
82
Susan Schechter & Jeffrey L. Eldelson, Open Society Institutes Center on Crime, Communities & Culture,
Domestic Violence & Children: Creating A Public Response 6 (2000).
83
P. Lehmann, Posttraumatic Stress Disorder (PTSD) and child witnesses to mother-assault: A summary and
review, 22 Children and Youth Services Review 273 (2000); C. Echlin & L. Marshall, Child protection services for
children of battered women, in Ending the cycle of violence: Community responses to children of battered women
(E. Peled, P. Jaffe, and J. Edleson (Eds.)) (1995).

28

--- DRAFT --Children of Victimized Caregivers

The most extreme scenario of parental victimization is murder cases, where a child
loses a parent or caregiver to crime. The more common situation is of parents who
experience violent victimization in childhood or adulthood, and suffer harmful implications
as a result, which have a spillover effect to their children.
Victimized parents have an increased probability to suffer from a range of mental
health problems, including emotional deficiencies, depression, and low self-esteem. Poorer
state of physical health was also found in victimized, in comparison to non-victimized,
caregivers.84 Some evidence shows that victimization may also affect parenting skills and the
interaction between parent and child. Survivors of victimization may have difficulties
establishing clear generational boundaries with their children, may be more permissive as
parents, and more likely to use harsh physical discipline.85
When experiencing trauma, a parents ability to play a stable, consistent role in the
childs life and, therefore, to support the child, may be compromised.86 Furthermore,
victimization causes parents themselves to be numbed, frightened, and depressed, unable to
deal with their own trauma and/or grief, and have difficulty being emotionally available,

84

Cindy E. Weisbart, et al., Child and Adult Victimization: Sequelae for Female Caregivers of High-Risk Children,
13(3) Child Maltreatment 235 (2008).
85
David DiLillo, Parenting Characteristics of Women Reporting a History of Childhood Sexual Abuse, 8 Child
Maltreatment 319 (2003); Richard Thompson, Mothers' Violence Victimization and Child Behavior Problems:
Examining the Link, 77 American Journal of Orthopsychiatry 306 (2007).
86
Joy D. Osofsky, The Impact of Violence on Children, 9 DOMESTIC VIOLENCE AND CHILDREN 33, 40 (1999).

29

--- DRAFT --sensitive, and responsive to their children.87 The effect of parental victimization is most severe
when the parent does not receive treatment and services to facilitate recovery. 88
As a result, parental victimization has considerable detrimental consequences to child
development, outcomes, behavior, and the childs relationship with the parent, even in cases
where the child is not aware of, or directly exposed to, the victimization.
Child Witnesses
Children participate in the criminal justice process as witnesses in a variety of
circumstances. Although most attention is devoted to child victims who testify against their
own perpetrators, there is also an extensive use of children as witnesses and informants in the
prosecution of crimes committed against others at the home, school, and in the community.
In fact, in cases of peer bullying, teen drug-dealing, and gang violence, using child witnesses
can sometimes be the only window into a world where only minors are trusted and adults
cannot infiltrate."89 The necessity of use of children as witnesses in criminal procedures in order
to achieve effective prosecution was further emphasized by the UN ECOSOC in its resolutions
addressing criminal matters involving child victims and witnesses.90

87

Joy D. Osofsky, The Impact of Violence on Children, 9 DOMESTIC VIOLENCE AND CHILDREN 33 40-1 (1999).
Howard Dubowitz, et al., Type and Timing of Mothers' Victimization: Effects on Mothers and Children, 107
Pediatrics 728 (2001); Cindy E. Weisbart, et al., Child and Adult Victimization: Sequelae for Female Caregivers of
High-Risk Children, 13(3) Child Maltreatment 235 (2008).
89
James Blair, "Ethics of Using Juvenile Informants", Christian Science Monitor (April 14, 1998)
90
UN Economic and Social Council, Resolution 2004/27 Guidelines On Justice For Child Victims and Witnesses of
Crime (July 2004); UN Economic and Social Council, Resolution 2005/20 Guidelines on Justice in Matters
involving Child Victims and Witnesses of Crime (July 2005).
88

30

--- DRAFT --Child witnessing is a form of indirect victimization that rarely stands alone. It is normally
coupled with other forms of victimization, such as exposure to crime and violence, parental
victimization, or direct victimization. Yet, it presents a discrete set of harms and challenges to
the child, which ought to be addresses independently.
Court testimony is an extremely stressful, frightening and formidable event, especially
for a vulnerable young child. The child is placed in the unfamiliar and intimidating environment
of a courtroom, and asked to participate in a process that is foreign and perplexing. S\he has to
face the defendant, who the child often perceives as a threatening and dangerous figure. The
child is required to answer difficult questions in public, and to go through forceful questioning
by unsympathetic strangers. The childs truthfulness is repeatedly doubted and questioned
throughout the process, which is often perceived as a humiliating experience. Moreover, the
child has to repeatedly re-live the traumatic event s\he witnessed through recurring interrogations
by law enforcement and in court. When the defendant is familiar or related to the child witness,
further difficulties, including intense guilt and loyalty conflicts, may arise. The multitude of
stressors involved in this experience can trigger extreme levels of anxiety and psychological
strain, which is often referred to as Secondary Victimization.91
Children with Incarcerated Caregivers
Incarceration of a parent normally causes major negative economic, social and
psychological consequences to the child, and may have life-long repercussions. Children are

91

Tanya Asim Cooper, Sacrificing the Child to Convict the Defendant: Secondary Traumatization of Child
Witnesses by Prosecutors, Their Inherent Conflict of Interest, and the Need for Child Witness Counsel, 9 Cardozo
Pub. L. Poly & Ethics J. 239 (2011).

31

--- DRAFT --affected by the incarceration of either parent, but they typically experience greater harm when
their mother is imprisoned, due to the central role a mother plays in the life of a young child.92
When the incarcerated parent is the primary caregiver, the family life is fundamentally
disrupted. The child is usually uprooted, and may be separated, not only from the incarcerated
parent, but also from his siblings, other relatives, and friends. The child is at risk of being moved
frequently among caregivers and even becoming a ward of the state.93 Maintaining a close
relationship and regular contact with the imprisoned parent overtime is a significant challenge.94
Empirical evidence shows that the separation of a young child from a primary caregiver,
and particularly a mother, is associated with a host of adverse symptoms, including impaired
ability to sympathize or show concern for others; aggression and anger; developmental and
behavioral problems; sleeping, eating, or attention disorders; delays in educational development
and achievement; excessive hostile behaviors toward peers; problems with social adaptation;
greater likelihood to develop addiction to drugs or alcohol or engage in criminal activity; and
manifestation of sexually promiscuous behavior.95
Courts have also recognized the harms caused to children due to parental incarceration,
stating that [c]hildren who have stable, predictable care can overcome great adversity, . . .
Conversely, adults who grow up in temporary homes often suffer . . . . The majority hold low-

92

Tiffany Conway and Rutledge Q. Hutson, Parental Incarceration: How to Avoid a Death Sentence for Families,
41(3-4) Clearinghouse Review Journal of Poverty Law and Policy 212, 212 (Jul.-Aug. 2007). Available at:
http://www.clasp.org/admin/site/publications/files/0396.pdf
93
Donna K. Metzler, Neglected by the System: Children of Incarcerated Mothers, 82 ILL. B.J. 428, 430 (1994).
94
See detailed discussion in: Michal Gilad & Tal Gat, U.S. v. My Mommy: Evaluation of Prison Nurseries as a
Solution for Children of Incarcerated Women, 37 N.Y.U. REV. L. & SOC. CHANGE 371 (2013), available at:
http://socialchangenyu.files.wordpress.com/2013/05/us-v-my-mommy2.pdf
95
REBECCA PROJECT FOR HUMAN RIGHTS & NATIONAL WOMENS LAW CENTER, supra note 13, at 13; Kim, supra
note 66, at 228; Leda M. Pojman, Cuffed Love: Do Prison Babies Ever Smile?, 10 BUFF. WOMEN'S L. J. 46, 62
(2002); John J. Sheridan, Inmates May be Parents, Too, CORRECTIONS TODAY, Aug. 1996, at 100.

32

--- DRAFT --skilled jobs; up to 50% spend some time on public assistance. Drug use is common. Nearly one
third of males commit crimes as adults. Among the homeless, as many as 39% spent years in
foster care as kids.96
When the child is too young to fully understand the reasons for the parents
disappearance, destructive feelings of self-blame and anger emerge. The remaining caregiver
is often unable to find the right way of conveying the information to the child in an ageappropriate manner and to render necessary support. Economic hardship is another likely
possibility, due to the added legal expenses involved and the loss of income or social benefits.97
The child left behind is also subjected to negative stigma and shame associated with parental
incarceration.98
Children suffering from parental incarceration are often referred to as the invisible
victims of crime, as they are forced to bear the consequences of their parents criminal behavior
and the systems inability to address their needs.

V.

The Intended Effect

The development of a clear and concise legal definition can direct laws and policies,
affect their scope, substance, application, and ultimately shape their overall outcome. In the

96

Bean, supra note 37, at 337. See also In re Lilley, 719 A.2d 327, 335 (Pa. Super. Ct. 1998).
Donald Braman, Doing Time On The Outside: Incarceration And Family Life In Urban America (2004); Nell
Bernstein, All Alone In The World: Children Of The Incarcerated 109-42 (2005)
98
See; Sarah Abramowicz, Rethinking Parental Incarceration, 82 U. COLO. L. REV. 793 (2011); Denise Johnston,
Services For Children of Incarcerated Parents, 50 FAM. CT. REV. 91 (2012); Donna K. Metzler, Neglected By The
System: Children of Incarcerated Mothers, 82 ILL. B.J. 428 (1994); Julie Poehlmann, Children of Incarcerated
Mothers And Fathers, 24 WIS. J.L. GENDER & SOC'Y 331 (2009).
97

33

--- DRAFT --case of child victims, the implementation of a more inclusive definition of the term , which
addresses the special needs of children, is expected to offer several practical benefits.
First, the development of a valid and viable definition necessitates extensive
multidisciplinary review and analysis of law and science, with careful examination of all
facets of the issue. This comprehensive work will facilitate a better understanding of the true
scope and nature of the problem in its entirety, and the full range of consequences it entails
to individuals and to society, which are currently unknown.
Second, the proposed definition will help establish, in a more accurate and
foreseeable manner, who will be recognized as a victim and receive protections and services,
what will be the nature and scope of the services and protections offered, and under what
circumstances they will be provided. It will enable the recognition of the full range of
affected children in need of intervention, enhancing protection, and facilitating rehabilitation.
It is important to clarify that the objective of the proposed definition is not to criminalize
new acts or to broaden criminal responsibility. The intention is merely to design a definition
that will capture the full effect, in terms of nature and scope, of acts readily recognized as
criminal offences.
Third, as recognized by the American Institute of Medicine, once the extent of the
problem is realized, effective solutions can be devised to address the issue on both the
individual and public level.99 The ultimate goal of setting an explicit child-oriented definition
that encompasses the above mentioned indirect forms of child victimization, is to leverage the

99

Anne Petersen, Joshua Joseph & Monica Feit, New Directions in Child Abuse and Neglect, Institute of Medicine
and National Research Council of The National Academies (2013).

34

--- DRAFT --full range of childrens interactions with the legal system and authorities to enable effective
identification of those severely affected by crime and in need for intervention and services.
On the individual level, allowing for effective identification and early intervention for
affected children will promote rehabilitation, alleviate the harmful physical and emotional
symptoms of direct and indirect victimization, and facilitate healthy child development. It is also
expected to improve the educational and employment outcomes of these children, and their
ability to conduct a healthy and productive lifestyle. Thus, the adoption of the broader legal
definition will promote the best interests of the child, and influence the fate of millions of
children affected by crime. It will also allow government agencies to meet their parens
patriae obligations, as well as international human rights standards prompted by the
Convention on the Rights of the Child and other international instruments.
From a broader public perspective, by addressing the needs of individual children and
alleviating the risk for debilitating health problems, repeat victimization, addictions, and
future delinquency and criminal offending, prime societal interests are also advanced. The
proposed definition will allow for a more efficient and scientifically-informed utilization of the
available public funds. It will also enable the formulation of a coherent long-term budgetary
planning and cost-effective investments that will take into account all fiscal costs associated with
the harm associated with child victimization.
In addition to significantly advancing public safety, reducing the potential
involvement of untreated victimized children in future criminal activity, as repeat victims or
offenders, can also save fiscal spending on law enforcement, prosecution, judicial processing
and court operation, detention and incarceration, re-entry, parole and probation. All these
function incur extremely high costs on tax payers. To give one example, the daily cost of
35

--- DRAFT --holding a minor in a juvenile detention facility is approximately $300, on the other hand, the
most elaborate and expensive treatment program for a victimized child is estimated at $100 a
day. 100 Hence, investment in early intervention can result in substantial long-term savings of
public resources.
Considering the broad spectrum of adverse symptoms exhibited by directly and
indirectly victimized children, investment in early intervention that facilitates productive
independent living is estimated to generate similar savings of the costs associated with public
health and mental health services, social services, child welfare, foster care, public
assistance, and unemployment.
The implementation of the proposed definition also opens an opportunity for the
development and improvement of laws and policies advancing the protection of children.
Existing federal and state legislation dedicate resources for the development of crime victim
services and victim compensation funds. The utilization of this category of services to
respond to the needs of children suffering from direct and indirect crime victimization can be
extremely effective. Crime victim service programs are not associated with the same negative
stigma as Child Protective Services and the Child Welfare system. These programs are
geared to address a broader spectrum of victimization, beyond that inflicted by the childs
caregiver. Moreover, in contrast with Child Protective Services, referral to crime victim
services does not normally carry the risk of forced removal of the child from the home,
which can discourage disclosure of the childs victimization to authorities.

100

Interview with Robert D. Macy, founder and President of the International Trauma Center (May 2, 2014).

36

--- DRAFT --As earlier described, The Victim of Crime Act already recognizes children as a priority
group that requires special attention, and dedicated services and resources. Yet, the act lacks any
definition of the specific group of children that should be entitled to benefit from crime victim
services and victim compensation programs. As a result, at present time only a small fraction of
the children debilitated by crime can benefit from the resources and services mandated by the
act. A similar problem was identified with other legislative acts appropriating funds for children
affected by crime. Implementation of the proposed definition will clarify the criteria of eligibility
for services and compensation. It will also enable channeling the resources and funds
appropriated, mostly comprised of fines and penalties collected from convicted criminal
offenders, to provide necessary treatment for the full range of affected children.
Another example for potential policy improvement is the development of clear, accurate,
and effective identification protocols relying on the proposed definition. Under existing policies
it is often the case that even when criminal cases are reviewed by a multitude of professionals
and service providers, the affected children, and particularly those suffering from indirect
victimization, are completely overlooked.101 In domestic violence cases for example, a study
conducted by the American Prosecutors Research Institute has found that less than half of the
surveyed prosecution offices were aware of any protocols directing law enforcement officers to
inquire about child victims or witnesses when investigating such reports.102

101

Susan Schechter & Jeffrey L. Eldelson, Open Society Institutes Center on Crime, Communities & Culture,
Domestic Violence & Children: Creating A Public Response 3 (2000); The National Child Traumatic Stress
Network (NCTSN), Identifying Children Affected by Domestic Violence, http://www.nctsn.org/content/identifyingchildren-affected-domestic-violence
102
Debra Whitcomb, Children and Domestic Violence: The Prosecutors Response (2004),
https://www.ncjrs.gov/pdffiles1/nij/199721.pdf

37

--- DRAFT --Identification protocols can be used by criminal justice professionals such as law
enforcement agents, victim advocates, forensic medical examiners, prosecutors, and judges to
actively seek and identify the full range of affected children associated with each case under their
supervision. Similar protocols can also be used by other professionals who regularly interact with
children, such as pediatricians, child welfare caseworkers, daycare workers, and school
personnel, to screen for signs of direct and indirect victimization.
In 2005 the U.S. Attorney General has issued a set of guidelines Victim and Witness
Assistance.103 These guidelines recommend an expansion of the referral to services of child
victims and witnesses, with the purpose of reducing the trauma child victims and witnesses
experience when they are forced to relive the crime during the investigation and prosecution of a
criminal case, particularly while they are testifying in court.104 In accordance with these
recommendations, identification mechanisms should be paired with referral systems that
enable distribution of relevant information to the identified children and their caregivers , and
will mandate referral of the child to relevant services and treatment programs. Systemic and
coordinated response efforts of this nature will significantly increase access to services and
treatment programs for affected children. It will also help raise awareness to the harm caused
by direct and indirect childhood victimization, and the vital need for treatment to facilitate
rehabilitation.
Inevitably, a comprehensive expansion of the definition of child victimization is
expected to have budgetary consequences. The group of children eligible to receive services

103

US Department of Justice, Office of Justice Programs, Attorney General Guidelines For Victim And Witness
Assistance (2005).
104
US Department of Justice, Office of Justice Programs, Attorney General Guidelines For Victim And Witness
Assistance 48 (2005).

38

--- DRAFT --and protections will significantly increase. Additionally, in most jurisdictions it may be
necessary to increase the scale and capacity of the available intervention programs in order to
meet the demand. Intake procedures will also have to be enhanced in order to process
incoming referrals. Under these circumstances, it is unlikely that a swift full-scale
implementation of the proposed definition will be viable in most jurisdictions.
In order to assure the feasibility and efficacy of the implementation, and to increase
its desirability in the eyes the relevant stakeholders, and particularly law and policy makers,
the development of a gradual implementation scheme will be required. The different
categories of victimization to be incorporated in the definition should be strategically
prioritized. The prioritization process can rely on the available scientific findings that
establish the long- and short-term effects associated with each form of victimization. The
effect of the various forms of victimization on different age groups should also be analyzed ,
to clearly identify and define the most vulnerable groups in greatest need for immediate
attention and intervention.
The need-based assessment can be coupled with a cost\benefit analysis that will
determine the affordability, required investment, and projected long-term savings to be
incurred with the incorporation of each category. Although such fiscal vectors are expected
vary from jurisdiction to jurisdiction, depending on the existing infrastructure, available
resources, budget planning methods, and demographic composition of the population, some
generalized guidelines can be developed to facilitate the optimal customization of
implementation.
A gradual scheme will also enable the integration of performance-based progress and
modifications. After the completion of each stage of implementation, the resulted effect
39

--- DRAFT --could be evaluated, scrutinized and compared against the envisioned outcomes. In cases
where the observed effect diverges from the desirable predictions, strategic modifications can
be made in order to improve the results. Positive findings on the other hand will justify and
support the investment of additional resources into the impending stages of the gradual
implementation process.
Irrespective of the anticipated complexities, it is clear that, when methodically and
proficiently executed, implementation of the proposed child-oriented definition has the
potential to breed a range of public benefits. It can promote the utilitarian objectives of the
criminal justice system, improve child protection mechanisms, advance fiscal efficiency,
enhance public safety, mitigate the socio-economic gaps across our society, and better
communities quality of life. The effect of the implementation can be even further optimized
if it is done in a manner that is mindful to the challenges, and to the practical and conceptual
limitations such a complex process entails.
It is important to note that the aforementioned implications and benefits could go far
beyond the United States. Child victimization is a global epidemic infesting developing as
well as developed nation across the globe. Thus, implementation of the proposed definition
could offer substantial advantages to other nations facing similar obstacles due to the lack of
well-informed and evidence-based definitions for the term child victim of crime.

VI.

The Challenges
It is crucial to keep in mind that the construction of a new child-oriented definition
involves an intricate matrix of issues, which require careful attention and consideration.
40

--- DRAFT --Childhood is considered to be an extremely heterogeneous category. Children

experience rapid and drastic physiological as well as mental developmental changes from
birth until their reach adulthood. Experts, like Developmental Victimologist Dr. David
Finkelhor, explain that the nature, quantity, and impact of victimization are likely to vary
across childhood with the different capabilities, activities, and environments that are
characteristic of different stages of development.105 Due to this inherent variance, it is
necessary to determine how should we address these developmental differences across
childhood? And, how should children be distinguished from adolescents? Furthermore, the
exact boundaries of childhood in this particular context should be examined and defined.
Children are not equally affected by crime victimization and trauma. Some children
are deeply affected by victimization, whether direct or indirect, while others exhibit high
levels of resilience.106 The exact combination of factors that allow some children to develop
higher levels of resilience than others is not yet fully understood. However, factors such as
age, gender, relationship with the caregiver, personal strengths and vulnerabilities,
characteristics of the childs family and community, and the frequency and severity of the

105

David Finkelhor , Developmental Victimology: The comprehensive study of childhood victimization, in R. C.

David, et al. (Eds),Victims of crime (3rd ed.) 9, 21 (2007); Richard J, Gelles, Exposure to and Experience With
Family Violence: Issues for Intervention and Prevention, in Interventions for Children Exposed to Violence (Alicia
F. Lieberman & Robert DeMartino, Eds.) 145 (2006); Jonathan D Thackeray, et al., The Role of the Pediatrician,
125 Pediatrics 1094, 1094 (2010); H. M Hughes & D. A. Luke, Heterogeneity in Adjustment Among Children of
Battered Women. in Children Exposed to Marital Violence (R. Holden, et al. eds.) (1998); J. H. Grych & F. D.
Fincham, Marital Conflict and Childrens Adjustment: A Cognitive Contextual Framework, 108 Psychological
Bulletin 267 (1990); C. M. Sullivan, et al., Beyond Searching for Deficits: Evidence That Physically and
Emotionally Abused Women are Nurturing Parents, 2 Journal of Emotional Abuse 51 (2000); Betsy Mcalister
Groves, et al., Family Violence Prevention Fund, Identifying and Responding to Domestic Violence: Consensus
Recommendations For child and Adolescents Health 6 (2004),
http://www.futureswithoutviolence.org/userfiles/file/HealthCare/pediatric.pdf
106
Resilience is understood to be a good outcome in spite of high risk, sustained competence under stress, and
recovery from trauma. J.M. McGloin & C.S. Widom, Resilience Among Abused and Neglected Children Grown
Up, 13(4) Development and Psychopathology 1021 (2001).

41

--- DRAFT --victimization, were shown by empirical research to have an effect on childrens responses.107
Considering this variability in the effect of crime on children, can a purely objective
definition suffice, or may there be a need to incorporate a subjective prong in the definition?
The term child victim is currently used in a range of legal contexts. Can a single
definition fit all these frameworks, or could there be a need for more than one definition of
child victimization?
Another intricate issue that touches the doctrinal core of our criminal law is the
question whether once a victim is recognized, is it necessary to also identify a specific
predator responsible for the victimization, or can a form of victimization by circumstances
also exist? Since the proposed definition does not aim to criminalize new acts, as previously
explained, such doctrinal issues of the relationship between victim and perpetrator must be
thoroughly addressed.
Another set of considerations emerge from a public policy perspective. The budgetary
effect of the definition is a paramount issue. The broader scope of the envisioned definition
and its associated policies is expected to increase the cost of protection and care due to the
inclusion of a larger group of children that are currently not recognized as victims of crime.
This will have to be balanced against potential savings on government welfare and health
services, juvenile and criminal justice expenses, and lost earnings and productivity.
Moreover, the different stakeholders on this issue will have to be identified and mapped, and
their interests will be calculated and considered.

107

Betsy Mcalister Groves, et al., Family Violence Prevention Fund, Identifying and Responding to Domestic
Violence: Consensus Recommendations For child and Adolescents Health 6 (2004),
http://www.futureswithoutviolence.org/userfiles/file/HealthCare/pediatric.pdf; Anne Petersen, Joshua Joseph, &
Monica Feit, New Directions in Child Abuse and Neglect 133 (2013).

42

--- DRAFT --All these issues are pending for further analysis and interdisciplinary review in future
work, in order to reach a balanced formula that is both effective, practical, and economically
feasible.

VII.

Conclusion
Clich quotes like Children are our future and Children are the world's most
valuable resource became undisputable landmarks of our culture. But reality does not
always conform to the clichs. The muffled voices of our children and their inherent
vulnerability often turn them into invisible victims easily ignored and neglected by the
system. Interdisciplinary research that takes into account developmental variables and the
unique attributes of children can help bridge this gap, and improve the ability of our legal
system to protect this tender and valuable resource.
In our modern world, law, society, and politics intermingle and are often insep arable.
This is particularly true in the highly-charged field of criminal law. In this reality, legal
definitions often leap beyond the pages of dictionaries and scholarly books and serve as
guideposts for public policies and laws that profoundly affect the lives of each and every one
of us. This project has the potential to generate an interdisciplinary body of work that will
create such impact by better informing laws, policies, scholarship, and our collective
knowledge of this evolving field.

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