researching references to -- culpability (fault)

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Marina
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researching references to -- culpability (fault)

Postby Marina » Wed Jul 05, 2006 10:59 am

researching references to -- culpability (fault)

Wikipedia definition
http://en.wikipedia.org/wiki/Culpability

From a legal perspective, culpability describes the degree of one's blameworthiness in the commission of a crime or offense. Except for strict liability crimes, the type and severity of punishment often follow the degree of culpability.

Modern crimes codes in the United States usually make distinct four degrees of culpability.

Legal definitions are:

A person acts intentionally with respect to a material element of an offense when:
if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
A person acts knowingly with respect to a material element of an offense when:
if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
(The above has been quoted verbatim from the Pennsylvania Crimes Code. That in turn derives from the American Law Institute's Model Penal Code, which is the basis for large portions of the criminal codes in most states. The only difference is that the MPC uses "purposely" instead of "intentionally".)

In short:

A person causes a result purposely/intentionally if the result is his/her goal in doing the action that causes it,
A person causes a result knowingly if he/she knows that the result is virtually certain to occur from the action he/she undertakes,
A person causes a result recklessly if he/she is aware of and disregards a substantial and unjustifiable risk of the result occurring from the action, and
A person causes a result negligently if there is a substantial and unjustifiable risk he/she is unaware of but very much should be aware of.
Last edited by Marina on Thu Jul 06, 2006 5:34 pm, edited 1 time in total.

Marina
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Postby Marina » Wed Jul 05, 2006 11:03 am

FINAL REPORT

of the

SUBCOMMITTEE ON RESPONDING TO

CHILD ABUSE, NEGLECT AND DEPENDENCY

to the

ADVISORY COMMITTEE ON CHILDREN, FAMILIES, AND THE COURTS

THE SUPREME COURT OF OHIO

The National Center for Adoption Law and Policy

and

The American Bar Association Center on Children and the Law

October 11, 2005



http://66.218.69.11/search/cache?p=culp ... 1&.intl=us

Changes in Statutorily Defined Child Protection Categories
The Subcommittee recommends the statutory enactment of eight defined circumstances in which a child is “in need of protective services”. These new categories, which would replace abuse, neglect and dependency in Ohio law, would reflect the Subcommittee’s intended shift to a child-centered, but family focused, system also enhanced by the alternative response practice model just discussed. Specifically, the child protection definitional language has been revised to emphasize the impact of an act or acts on a child, rather than the culpability of an actor. Under this new approach, a child could be adjudicated in need of protective services when proven to be:

Marina
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Postby Marina » Wed Jul 05, 2006 11:39 am

August 2005-- Draft

ABA Center on Children and the Law

National Child Protection Law Analysis

http://66.218.69.11/search/cache?p=culp ... 1&.intl=us

1. Overall Structure of Definitions of Child Maltreatment as a Basis for Protective Intervention

Summary of Issue

Separate or single category of maltreatment. A key decision in defining child maltreatment is whether to have a single category of child maltreatment or to separate it into such broad categories as abuse, neglect, and dependency. One reason that has been put forward for dividing child maltreatment into categories (e.g., of diminishing parental culpability) is to allow for and encourage “plea bargains,” or negotiations that allow government attorneys and judges to avoid the necessity of child maltreatment trials. As part of such negotiations, hopefully there will still be a case plan that addresses the real maltreatment that took place. For example, if a child is a victim of excessive corporal punishment, a government attorney may agree to a finding of “child neglect” to avoid a trial. However, the case plan may require the parent to learn and practice other forms of discipline.

A further factor encouraging parents and their attorneys to engage in such plea bargains is the sense that there is more blame or stigma attached to “abuse” compared to “neglect” and more stigma attached to “neglect” compared to “dependency”. This makes such plea bargains feel similar to plea bargains in criminal proceedings.

The problem with such plea bargains (and it is a big one) is that they fail to provide a court record of what actually was done to the child. If the parent fails to comply with the case plan, it is more difficult to refuse to return the child home. It is even more difficult to terminate parental rights based on a failure to comply with a case plan when there were no original findings to support the need for the plan.

Of course, even without separate categories of abuse, neglect, and dependency, attorneys and parties may still negotiate findings of maltreatment. Eliminating the separate categories would reduce, but not eliminate, such negotiations and the resulting distortions in court findings.

A more profound reason to avoid separate categories of maltreatment such as abuse, neglect, and dependency is that the concepts themselves are not helpful. The degree of parental fault generally should not define or shape the nature of state intervention because, unlike criminal proceedings, the purpose of intervention is not punishment. Rather, how the state intervenes should be based on the exact danger to the child and what protection is needed. Further, the boundaries between abuse, neglect, and dependency are often not clear. For these reasons, most states have enacted a single category of child maltreatment.

- - - - - - - -

An argument for defining child maltreatment in terms of parental behavior (misbehavior) is that it is often easier to recognize and prove parental behavior as opposed to harm to a child. Proving harm, especially emotional harm, more frequently requires expert testimony. Further, expert testimony, particularly regarding emotional harm, may be indecisive.

- - - - - - -

Marina
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Postby Marina » Wed Jul 05, 2006 11:43 am

Child Protective Proceedings BenchbookA Guide to Abuse and Neglect CasesREVISED EDITION

Michigan Judicial InstituteBy Tobin L. Miller, J.D.Child Protective Proceedings BenchbookA Guide to Abuse and Neglect CasesREVISED EDITION


http://66.218.69.11/search/cache?p=culp ... 1&.intl=us

4.5Parental Culpability Is Not Required for Court to Take Jurisdiction of a
Child Because of an Unfit Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93

Marina
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Postby Marina » Wed Jul 05, 2006 11:47 am

OTHER COMMITTEE REPORTS AND STATEMENTS



Cultural Competence

New Jersey



http://66.218.69.11/search/cache?p=culp ... 1&.intl=us

When child protective services initiates an investigation in response to allegations of child abuse or neglect, the culpability of both the mother and father may become the focus of the investigation, even though only the father is the active abuser. Moreover, because of societal expectations that a mother should protect her child(ren) from abuse, she may be seen as equally or more culpable that the perpetrator if she did not prevent the abuse. This societal expectation is further embodied in the "failure to protect" doctrine. Pursuant to this doctrine, legal responsibility may be assigned to the non-abusive parent, who may then suffer significant negative legal consequences, including the loss of custody and criminal prosecution. Failure to protect assumes that a non-abusive parent has a realistic capacity to offer such protection. When a non-abusive parent is also a victim of domestic violence, she often does not have (nor can she take advantage of) the resources or the full support of the system to move forward safely. Expectations that "truly" protective parents would leave violent situations to remove their children from harms way may ignore the increase in danger that often occurs when victims and children leave. In fact, it is after separation that victims in particular are at greatest risk.

Marina
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Postby Marina » Wed Jul 05, 2006 11:54 am

Healthy children, investing in the future

Chapter 8 Prevention of Child Maltreatment


http://216.109.125.130/search/cache?p=c ... 1&.intl=us

Physical Neglect

Although professionals and lay persons differin their definition of optimal child rearing, theygenerally agree when defining inadequate care(499). In some cases–for example, in homeless
families—a child may lack some fundamental ne-
cessities despite the efforts of the child’s parents.
Cases such as this, in which it is difficult to as-
sign culpability to individuals, are typically not
construed as abuse or neglect.

Marina
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Postby Marina » Wed Jul 05, 2006 11:58 am

SAN JOSE MERCURY NEWS
NON-ABUSING PARENT, CHILDREN NEED HELP FROM COURT SYSTEM
Thursday, February 15, 2001
Page: 9B LEONARD P. EDWARDS AND WILLIAM G. JONES

http://216.109.125.130/search/cache?p=c ... 1&.intl=us

Domestic-violence advocates have argued that taking away the battered women's children victimizes the woman a second time. And child-abuse workers have argued that their one and only job is to make sure the children are safe from any more harm.

Ken Borelli, program manager for Santa Clara's Department of Emergency Response and Court Services, said he clearly understands the trauma of battered women who are evaluated for their ability to protect the child, but such complex decisions need to be made, and made quickly.

''It's not so simple. All petitions put a certain amount of culpability on both the parents. But there are a lot of nuances: if the woman was abusing drugs or alcohol, if the home is filthy, the children malnourished. Sometimes it's not clear who is abusing the children.''


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