Emotional abuse and the criminal law. An international comparison.

Emotional abuse and
the criminal law.
An international
comparison.
Executive Summary
Katherine Copperthwaite
October 2013
Executive summary
As part of the work that Action for Children is doing to assess the suitability of the criminal law
in England and Wales1 regarding child neglect, I have been commissioned to compare that law
with equivalent statues internationally.
By researching the scope of the various criminal offences of child abuse internationally, it is
possible to draw comparisons with the current law on child abuse in England and Wales, as
found in section 1 of the Children and Young Persons Act 1933 (CYPA) .
In assessing the criminal law on child abuse, one key area of focus is whether the criminal act of
the offence (herein referred to as the ‘actus reus’) covers emotional, non-physical, psychological,
or mental abuse or neglect (herein referred to as ‘emotional abuse’).
Another area of focus is what the criminal mental element of the offence is (herein referred to as
the ‘mens rea’). Please note that an ‘absolute offence’; or offence of ‘strict liability’, is one where
there need be no mens rea: performing the actus reus alone suffices for committing a criminal
offence.
The criminal law on child abuse has been assessed in thirty-one jurisdictions, including England
and Wales, and Scotland.
This research has been conducted by looking at the principal criminal legislation on child abuse
in a range of countries. Where available, the relevant case law and statistics on child abuse have
also been assessed.
A sample of jurisdictions has been taken from across the continents of Europe, Asia, North
America, Africa and Australia. The jurisdictions which have been assessed are large
Commonwealth countries, a selection of states in the USA and Scandinavian countries.
From these thirty-one jurisdictions, the criminal law in twenty five of these encompasses
emotional abuse.
In addition to the initial thirty-one jurisdictions, the research using the Swedish Government
official report has found ten further jurisdictions where it is a criminal offence to emotionally
abuse a child. These are Denmark, Finland, Cyprus, Israel, Croatia, Lithuania, Germany, Austria,
Italy and Belgium.
The criminal law in three jurisdictions is unclear whether emotional abuse of a child is a
criminal offence. These jurisdictions are Scotland, Australian Capital Territory and Canada,
under the federal law, rather than the law of the provinces.
The criminal law in only two jurisdictions does not make it a criminal offence to emotionally
abuse a child. These jurisdictions are England and Wales, and Washington.
Clear definitions of what ‘emotional abuse’ encompasses, as well as the evidence of how to
demonstrate a child has been emotionally abused have been included in many statutes. For
example, in Florida a child is emotionally abused if they have suffered a mental injury, which is
an ‘injury to the intellectual or psychological capacity of a child’. This is evidenced by ‘a
discernible and substantial impairment in the ability of the child to function within the normal
range of performance and behavior as supported by expert testimony’. It thus gives an objective
1
S1 CYPA 1933
Page | 1
standard by which to assess the child against. A range of other jurisdictions offer similar
objective standards, such a North Carolina and Saskatchewan.
A range of jurisdictions make clear that in addition to explicit inclusion of emotional abuse
within statute, that exposure of a child to domestic violence is a form of abuse. For example, in
Alberta Canada a child can be emotionally abused ‘as a result of rejection; emotional, social,
cognitive or physiological neglect; deprivation of affection or cognitive stimulation; exposure to
domestic violence or severe domestic disharmony’.
While further work may be required to determine how frequently prosecutions are successfully
brought in each jurisdiction, some statistics are immediately available. For example, in
Singapore the most recent statistics (on offences committed in 2008-2012) show that there
were twenty-seven cases where emotional abuse was the most predominant/severe form of
abuse in prosecuted cases.
Please see below for a summary table of the findings.
.
.
.
Jurisdiction
.
How is the criminal offence
of emotional abuse of
children provided for?
.
Example?
Mens rea
England and
Wales
There is no criminal offence
of emotional abuse, as is
clear from Sheppard. It is an
offence to assault, ill-treat,
neglect, abandon or expose a
child, or procure him to have
the same done to him, on a
manner likely to cause him
unnecessary suffering/injury
to health’ (s1 Children and
Young Persons Act 1933)
Lord Keith in R v Sheppard
held that this offence was
limited to the ‘physical
needs of the child and does
not cover other aspects
such as the moral and
educational’. Lord Diplock
stated that neglect was a
failure to meet the child’s
‘physical needs rather than
its spiritual, educational,
moral or emotional needs’
‘wilfully’ which
has been
equated with
advertent or
subjective
recklessness in
Sheppard
Scotland
It does not appear that there
is a criminal offence of
emotional abuse. The offence
is stated in a near identical
way to England and Wales
and thus is likely to be
interpreted in the same way.
It is an offence to assault, illtreat, neglect, abandon or
expose a child, or procure
him to have the same done to
him, in a manner likely to
cause him unnecessary
suffering/injury to health,
which includes ‘any mental
derangement’ (s12, Children
and Young Persons
(Scotland) Act 1937)
New York, USA
It is an offence to act in a
Page | 2
‘wilfully’
The People v Doe: the
‘knowingly’
manner likely to be injurious
to the child’s ‘mental or
moral welfare’. It is also an
offence to fail to prevent a
child from being ‘abused’ by
being put in a situation with
substantial risk of protracted
impairment of their
emotional health (s260.10
NY Penal Code).
.
Texas, USA
.
Florida, USA
.
.
It is an offence to cause, by
act or omission, the child to
suffer serious mental
deficiency, impairment or
injury (s22.03(a)(2) TX Penal
Code) and to engage in
conduct that places a child in
imminent danger of mental
impairment (s22.041(c) TX
Penal Code)
.
It is an offence to abuse a
child which includes acting in
a way which can reasonably
be expected to cause the
child injury to the
‘intellectual or psychological
capacity’ of the chid; and to
fail to provide a child with
care necessary to maintain
the child’s mental health
(s827.03 FL Penal Code)
.
defendant asked an 11year-old girl to undress and
get into his bed, which she
refused to do. This conduct,
albeit verbal, was deemed
to be harmful to her mental
or moral welfare
.
Chief Justice Valdez in
Arcelia Contreras v State
stated that there need not
be proof of bodily harm for
an offence under s22.041 of
the TX Penal Code.
acting or
failing/refusing
to exercise
‘reasonable
diligence’
.
‘intentionally,
knowingly,
recklessly or
with criminal
negligence’
.
‘wilfully’, ‘by
culpable
negligence’
and/or
‘knowingly’.
.
Colorado, USA
It is an offence to cause an
injury to the child’s health
(which includes both
physical and mental wellbeing), or engage in a
continued pattern of conduct
that results in ‘cruel
punishment’ or
‘mistreatment’ (s18-6401(a))
Unclear
Virginia, USA
It is an offence to ‘contribute
to, encourage, or cause any
act, omission or condition
which renders a
child…abused or neglected’
(Title 18.2-371), meaning
that the caregiver ‘creates or
inflicts, threatens to create or
inflict, or allows to be
created or inflicted upon
such child a physical or
‘wilfully’
Page | 3
mental injury by other than
accidental means’ (Title 16.1228)
North
Carolina, USA
.
It is an offence to cause,
encourage or aid any juvenile
to be in a place or condition,
or to commit an act whereby
the juvenile could be ‘abused
or neglected’ (s14-316.1),
meaning that the caregiver
‘[c]reates or allows to be
created serious emotional
damage to the juvenile’ ; as
evidenced by their ‘severe
anxiety, depression,
withdrawal, or aggressive
behavior toward himself or
others’ (s7B-101(1))
.
California, USA
It is an offence to
cause/permit the child to
suffer, or inflict thereon
‘unjustifiable…mental
suffering’ (s273a CA Penal
Code)
South
Carolina, USA
It is an offence to commit
‘unlawful conduct toward a
child’ which includes placing
the child ‘at unreasonable
risk of harm affecting the
child's life, physical or
mental health, or safety’
(s63-5-70). It is also an
offence to ‘cruelly ill-treats,
deprives of necessary
sustenance or shelter, or
inflicts unnecessary pain or
suffering upon a child’ (s635-80)
Page | 4
‘knowingly or
wilfully’
.
The People v Perez: the
defendant repeatedly
stabbed the child’s
grandmother in front of
her, which was deemed
likely to cause the child
unjustifiable mental
suffering
.‘wilfully’
Unclear
Utah, USA
It is an offence to cause a
child serious physical injury’,
which is defined as including
‘any conduct toward a child
that results in severe
emotional harm, severe
developmental delay or
intellectual disability, or
severe impairment of the
child's ability to function’
(76-5-109(1)(f)(ii)(G))
‘intentionally
or knowingly’;
‘recklessly’; or
‘with criminal
negligence’
Washington,
USA
It does not appear that there
is a criminal offence of
emotional abuse. It is an
offence to cause a child
bodily harm, or risk thereof
by assault (s9A.36) or by
withholding the basic
necessities of life (9A.42).
These offences are defined to
focus upon the physical
needs of the child.
‘intentionally;
‘with criminal
negligence’; or
‘recklessly’
Canada
It is an offence to fail to
provide the ‘necessaries of
life’ if this results in the child
being placed in ‘destitute or
necessitous circumstances’
or it ‘endangers the life’ or ‘is
likely to cause the health of
[the child] to be endangered
permanently’ (s215)
‘without lawful
excuse’
#
.
Quebec,
Canada
Page | 5
.
It is an offence to perform an
act which may subject the
child to psychological illtreatment. It is also an
offence to neglect to protect
a child, which includes a
failure to give the child care
required for their mental
health (s38 Youth Protection
Act)
.
Examples of psychological
abuse are particular
indifference, denigration,
emotional rejection,
isolation, threats,
exploitation, particularly if
the child is forced to do
work disproportionate to
the child's capacity, and
exposure to conjugal or
domestic violence (s38(c)
Youth Protection Act)
.
Unclear
.
Alberta,
Canada
.
.Manitoba,
Canada
.
.
It is an offence to ‘cause’ a
child, by act or failure to
protect, to have their
security/development
endangered because e.g. they
have been ‘emotionally
injured’ so that their mental
or emotional functioning or
development is impaired, or
subjected to ‘cruel or
unusual treatment or
punishment’ (s130(a)
CYFEA)
.
It is an offence to cause, by
act or omission, to cause the
child to be in need of
protection (s18.3(a) CFSA),
which includes where the
child’s emotional well-being
is endangered. (S17(1) CFSA)
.
.
A child can be emotionally
injured as a result of
rejection; emotional, social,
cognitive or physiological
neglect; deprivation of
affection or cognitive
stimulation; exposure to
domestic violence or severe
domestic disharmony;
inappropriate criticism,
threats, humiliation,
accusations or expectations
of or toward the child etc.
(s1(3) CYFEA)
.
Illustrations of when a
child’s emotional wellbeing is endangered are
where the child is likely to
suffer harm due to the
behaviour, condition,
domestic environment or
associations of the
child/adult with care of the
child; and where the child
is abused which includes an
act or omission which
results in emotional
disability of a permanent
nature (s17(2) CFSA).
.
‘wilfully’
.
Unclear
.
Saskatchewan,
Canada
It is an offence to neglect or
abuse a child. Abuse includes
acting/omitting to act in a
way which results in
‘substantial impairment of a
child’s mental or emotional
functioning as evidenced by a
mental or behavioural
disorder’ or to treat a child
‘cruelly’ (s81CFSA)
Appears to be
an absolute
offence
Ontario,
Canada
It is an offence for a person,
by their omissions, to ‘permit
the child to suffer from a
mental, emotional or
developmental condition
that, if not remedied, could
seriously impair the child’s
development…’
(s79(2)(b)(ii)
Unclear
Page | 6
.
Victoria,
Australia
.
Tasmania,
Australia
.
.
.
It is an offence to take action
that has resulted in or
appears likely to result in the
child suffering emotional/
psychological harm of such a
kind that a child’s
emotional/intellectual
development is/is likely to
be significantly damaged
(s493(1)(a)(ii) CYFA)
.
It is an offence to take/fail to
take action that could
reasonably be expected to
result in the child suffering
‘emotional or psychological
harm of such a kind that the
child's emotional or
intellectual development is,
or is likely to be, significantly
damaged’ (s91(1)(b) CYPFA).
It is also an offence to illtreat, neglect, abandon or
expose a child in a manner
likely to cause the child
unnecessary suffering/injury
to health (s178 Criminal
Code Act).
.
‘intentionally’
.
Tasmania v P: the
defendant ill-treated the
children both physically
and mentally. The mental
abuse included depriving
the child of ‘the time
necessary to be a child’ (e.g.
not permitting playtime);
verbal abuse; and
humiliation.
.
‘intentionally’
(CYFPA)
‘wilfully’
(Criminal Code
Act)
.
New South
Wales,
Australia
It is an offence to ‘take action
that has resulted in or
appears likely to result
in….the child or young
person suffering emotional
or psychological harm of
such a kind that the
emotional or intellectual
development of the child or
young person is, or is likely
to be, significantly
damaged…’ (s227 Children
and Young Persons (Care and
Protection) Act 1998)
‘intentionally’
Western
Australia,
Australia
It is an offence ‘to do an act
or to omit to do an act’ that
‘may result in the child
suffering harm as a result
of… emotional abuse; or
psychological abuse; or
neglect…’ (s101 Children and
Community Services Act
2004). Harm is defined as
‘any detrimental effect of a
significant nature on the
‘know[ledge]’
or
‘reckless[ness]’
as to whether
‘the conduct
may result in
the child
suffering harm’
Page | 7
child’s wellbeing’ (s101(2),
s28(1) ibid)
Australia
Capital
Territory,
Australia
It is unclear whether it is a
criminal offence to
emotionally abuse a child. It
is an offence to ‘neglect’, ‘illtreat or abuse a child’
(s39(1) Crimes Act) but ‘illtreat or abuse’; and ‘neglect’
are not defined within the
Crimes Act. Neglect has been
defined in the case law as
‘failing to provide adequate
and proper lodging, food or
clothing or nursing, medical
or dental care and attention’
Queensland,
Australia
It is an offence to cause ‘any
detrimental effect of a
significant nature on the
child's physical,
psychological or emotional
wellbeing, whether
temporary or permanent’, by
failing to provide the child
with, or failing to take all
lawful steps to obtain
‘adequate…care’; or by
deserting the child; or by
leaving the child without
means of support (s364
Criminal Code Act).
It is also an offence to fail to
provide the ‘necessaries of
life…whereby the life of that
other person is or is likely to
be endangered or the other
person's health is or is likely
to be permanently injured’
(s324 ibid)
Northern
Territory
It is an offence to cause
serious harm (s181 Criminal
Code Act) or harm (s186
ibid) to another person
which includes ‘harm to a
person’s mental health,
whether temporary or
permanent’ (s1A(1) ibid).
Harm to a person’s mental
health ‘includes significant
psychological harm, but does
not include mere ordinary
Page | 8
It is unclear
from
the
legislation, but
from R v CM, it
seems that it is
‘wilfully’
R v Nielsen & Anor: the
defendants were charged
under s324 for failing to
provide the necessary
medication to their
daughter for her
psychiatric illness
(schizophrenia). Judge
Ambrose stated they could
also have been charged for
their failure to provide
medical assessment. The
necessaries of life were
defined as ‘those matters
which have a serious long
lasting effect upon one’s
state of health, one’s state
of wellbeing with
permanent consequences
or with likely permanent
consequences if they are
not provided;
‘knew or ought
reasonably to
have known’
that the
conduct ‘would
be likely to
cause harm to
the child’
‘unlawfully’
which is
defined as
‘without
authorisation,
justification or
excuse’
emotional reactions such as
those of only distress, grief,
fear or anger’. (s1A(3) ibid)
South
Australia
.
New Zealand
.
Sweden,
Norway,
Denmark,
Finland,
Cyprus, Israel,
Croatia,
Lithuania,
Germany,
Austria, Italy,
Belgium
.
Singapore
Page | 9
It is an offence for a child to
die or suffer serious harm as
a result of an unlawful act or
omission (s14 Criminal Law
Consolidation Act). Serious
harm includes harm ‘that
consists of, or is likely to
result in, loss of, or serious
and protracted impairment
of, a part of the body or a
physical or mental function’
(s14(4) ibid). Harm means
‘physical or mental harm
(whether temporary or
permanent)’ (s21 ibid).
‘[M]ental harm’ means
‘psychological harm and does
not include emotional
reactions such as distress,
grief, fear or anger unless
they result in psychological
harm’ (s21)
.
It is an offence to engage in
conduct or to omit to
discharge/perform any legal
duty which is likely to cause
suffering, injury, adverse
effects to health, or any
mental disorder or disability
to a child. (s195 Crimes Act)
.
Aware or ought
to have been
aware of the
‘appreciable
risk’ that
serious harm
would be
caused
.
The Queen v Mead: the
defendant both physically
and mentally abused the
children. The mental abuse
included excessive and
menial domestic chores and
verbal abuse
.
.
‘intentionally’
.
The Swedish Government
Official Report entitled ‘Child
abuse – Prevention and
Protection’ (SOU 2001:72)
identified these twelve
countries as having expressly
prohibited physical and
mental abuse
The Report gave examples
of mental abuse such as
‘unduly severe punishment,
ridicule, criticism, scorn,
disparagement, rejection,
ostracism, unreasonable
demands or constant
refusal to listen to the
child’s views’
There are
various mentes
reae in the
different
countries’
legislation
.
Judge Foo in BGC v Child
Protector defined
‘adequate’ to cover ‘her
emotional, psychological
and developmental needs’
and defined emotional
injury as anything that
‘wilfully or
unreasonably’
It is an offence to ill-treat a
child, which includes doing
any act which causes or is
likely to cause the child ‘any
emotional injury’
(s5(2)(b)(ii) CYPA) or to
neglect a child by failing to
.
provide adequate care
(s5(2)(c) CYPA)
.
South Africa
It is an offence to abuse or
neglect a child (s305
Children’s Act), meaning
‘exposing or subjecting a
child to behaviour that may
harm the child
psychologically or
emotionally’ or failing ‘to
provide for the child’s basic
physical, intellectual,
emotional or social needs’
(s1 Children’s Act)
causes damage to the
behavioural, social,
cognitive, affective
functioning of the child’
‘deliberately’
Conclusion
It is clear from this research that the criminal offence of child abuse in England and Wales is out
of line with many other comparative legal systems.
The vast majority (25 out of 31) of jurisdictions which have been assessed explicitly criminalise
emotional abuse of a child. This figure may be even higher, as in three jurisdictions the law was
vague or ambiguous as to whether emotional abuse was encompassed within their criminal law
on child abuse, and thus no definite conclusions can be drawn.
There are only two jurisdictions where emotional abuse is not encompassed within the offence
of child abuse, one of which is England and Wales.
The research shows the occurrence of cases where emotional abuse is the most predominant or
severe form of abuse. Statistics in Singapore show that between 2000-2004 there were twenty
cases of emotional abuse, and between 2008-2012, there were twenty-seven cases.
This research demonstrates that there are countries which have recently re-assessed their law
on child abuse and made reforms because of this. For example, Singapore underwent an
extensive reform in 2001 so as to expand the definition of child abuse to include emotional
abuse.
Similarly, the official Government report from Sweden demonstrates the fact that Sweden felt it
is important to ensure that the law in Sweden is in line and up-to-date with other countries. In
their identification of countries which prohibit emotional abuse of children, England and Wales
was not identified.
Clear definitions of what ‘emotional abuse’ encompasses, as well as the evidence of how to
demonstrate a child has been emotionally abused have been included in many statutes. For
Page | 10
example, in Florida a child is emotionally abused if they have suffered a mental injury, which is
an ‘injury to the intellectual or psychological capacity of a child’. This is evidenced by ‘a
discernible and substantial impairment in the ability of the child to function within the normal
range of performance and behavior as supported by expert testimony’. It thus gives an objective
standard by which to assess the child against. A range of other jurisdictions offer similar
objective standards, such a North Carolina, Saskatchewan and Singapore.
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