In my colleague’s post, What Does Justice Mean For a 14 Year Old Girl Who Kills Her New Born Son? (07/02/08) he references the surprisingly common case of a woman who was unaware of her pregnancy until going to an ER in pain.  It was her second child.  The Baytown girl charged with capital murder also claims that she was unaware of her pregnancy.  The veracity of her claim may prove crucial to her case and is quite plausible. 

One can safely assume the sex health education taught in Goose Creek (Baytown) ISD meets the state’s abstinence-only-until-marriage guidelines.  If the 14 year old’s knowledge of pregnancy and childbirth was limited to the information Texas teachers are allowed to provide adolescents, she knew little if anything at all.

An irony in this case is the fact that the class was being taught the week the girl gave birth.  Another is that three weeks later (4/23/08) the program is being questioned by the House Committee on Oversight and Government Reform.   Centers for Disease Control and Prevention (CDC) data are staggering:

About 1/3 of girls in the United States get pregnant before age 20.  In 2006, a total of 435,427 infants were born to mothers aged 15–19 years, a birth rate of 41.9 live births per 1,000 women in this age group.  More than 80% of these births were unintended…  Although pregnancy and birth rates among girls aged 15–19 years have declined 34% since 1991, birth rates increased for the first time in 2006 (from 40.5 per 1,000 women in this age group in 2005 to 41.9 in 2006).  

Although this article will not discuss at length concerns regarding sexually transmitted disease (STD), keep in mind that unprotected sex presents the potential for unwanted pregnancy and potentially life-threatening illness.  According to the CDC 2006 National Surveillance Data for Chlamydia, Gonorrhea, and Syphilis girls age 15-19 have the overwhelmingly highest rates of Chlamydia.  Less notorious than the other two STD studied or HIV, Chlamydia is extremely transmissible, often undiagnosed or misdiagnosed as a more benign yeast infection and causes painful Pelvic Inflammatory Disease which if untreated can lead to sterility or even death.

Yet school age children in Texas and 27 other states are essentially taught to just-say-no. Their state’s acceptance of federal funding for abstinence-only education disallows teachers and school administrators from offering any additional prevention information.  Seventeen states have said, “no thanks.” 

Abstinence-only education has a lengthy and complicated history.  Emphasis on abstinence-only education began during the Reagan era.  After a brief period of openness during the early 1990’s, the policy was signed into law as an attachment to the 1996 Personal Responsibility and Work Opportunities Act. The statute allocates funding only to states that promise their schools will teach students –including sexually inquisitive and active teens– to simply pledge abstinence.  Specifically, Title V, Section 510 states that “abstinence education” means an educational or motivational program which: 

1. has as its exclusive purpose teaching the social, psychological, and health gains to be realized by abstaining from sexual activity
2. teaches abstinence from sexual activity outside marriage as the expected standard for all school-age children
3. teaches that abstinence from sexual activity is the only certain way to avoid out-of wedlock pregnancy, sexually transmitted diseases, and other associated health problems
4. teaches that a mutually faithful monogamous relationship in the context of marriage is the expected standard of sexual activity
5. teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects
6. teaches that bearing children out-of wedlock is likely to have harmful consequences for the child, the child’s parents, and society
7. teaches young people how to reject sexual advances and how alcohol and drug use increase vulnerability to sexual advances
8. teaches the importance of attaining self-sufficiency before engaging in sexual activity.

Educators, youth advocates, and family planning, public health, and HIV experts initially objected with no luck and no data at the time to convince the conservative Congress otherwise.  Despite independent studies suggesting oherwise, the Bush administration bolstered funding for the policy.  Furthermore, it has ignored data showing no significant behavioral changes with abstinence-only educated children versus those receiving comprehensive sex education.  A study commissioned by the government was quietly released over a year ago with little more than a press release.   

Comprehensive sex education incorporates abstinence into a more complete discussion of family planning and safer sex; and also can be tailored for age appropriate information.  Astinence only advocates often suggest that sex education should be provided by parents in the home.  If that is the case, why have you and I spent over a billion dollars telling school children to just say no?

Key critiques of abstinence-only-until-marriage programs include: 

> Abstinence only as a program goal is out of touch with current trends.  In fact, 95% of Americans have intercourse before marriage.

> Many abstinence-only programs withheld vital information such as accurate condom efficacy or dispensed blatant misinformation such as claims that 50% of gay youth have HIV and 10% of women commit suicide post-abortion.  Although many have corrected their curriculum, some persist in promoting false information. 

> Abstinence-only programs have failed to demonstrate behavioral changes based on extensive evaluation.

> Conversely, evaluation of comprehensive sexuality education programs (virtually all include abstinence education) show that many help youth delay sex and learn how to use condoms if/when they decide to have sex.

> Declines in adolescent sexual activity (often touted as proof that the abstinence-only program works) preceded widespread federal funding of abstinence-only education and are attributed to better use of contraceptives.  Sadly, data also show that those numbers are again on the rise.  

For those eager to suggest only certain liberal organizations intent on encouraging underage sex oppose the policy, think again.  The list of organizations publically opposed to the failed policy includes: the American Medical Association, Office of National AIDS Policy, Institute of Medicine, CDC, National Institutes of Health (NIH) and the American Academy of Pediatrics. 

It is time for policy makers to just say no to a failed policy that serves ideology, not youth or public health. The situation of an unwanted pregnancy in which school girls across America find themselves, IS shameful.  However, the shame is not on them for becoming pregnant.  The shame is on policy makers who have failed to speak truth to the complex topic of sex.  The shame is that ineffective abstinence only programs have received $1.5 billion tax dollars.  Conversely, zero tax dollars are spent on comprehensive curriculum which has been proven more effective by states that refused federal funds.  

For more information — including tips for discussing sex with your own children — check out the following websites:

 

Centers for Disease Control — http://cdc.gov

Advocates for Youth — http://www.advocatesforyouth.org

National Campaign to Prevent Teen Pregnancy — http://www.thenationalcampaign.org

The Healthy Teen Network — http://www.healthyteennetwork.org

 

 

 

 

 

The nuances of the Supreme Court decision in Kennedy v Louisiana are perhaps more telling than the strict constitutionality of the ruling.  The decision written by Justice Kennedy incorporates input from an amicus brief from the National Association of Social Workers (NASW), the Louisiana chapter of NASW, the National Alliance to End Sexual Violence  and other state organizations working to end sexual assault. 

Acknowledging that the rape of a child is a most heinous crime, Justice Kennedy notes early that punishment is primarily about retribution and what this application of the death penalty says about our culture. (Please note that all quotes are pulled from the court decision.)

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint… We cannot dismiss the years of long anguish that must be endured by the victim of child rape… It does not follow, though, that capital punishment is a proportionate penalty for the crime.“ 

The decision also addresses claims by the law’s proponents that the death penalty somehow helps the victim’s healing process whereas NASW insists the process could increase the psychological distress experienced by victims. 

“It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution… Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. “

The NASW statement also references the well-established fact that the majority of childhood sexual assault is perpetrated by relatives or close family friends, making it far less likely that a child or her guardian will report the assault.  Hence, the abuse continues if not with the original victim, with other children.  Longterm abuse is documented as traumatizing to children and the adults they become; increasing the likelihood of teen pregnancy, drug abuse, mental health problems and other malidies.  The court agreed with the social workers, stating…

“With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse….one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member.”

Last but certainly not the least concern of advocates for children, is the fear that laws such as the one in Louisiana — and Texas — will remove a major deterrant against killing young victims of sexual assault.  To this Justice Kennedy states,

“Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.”

 In closing, Kennedy adds…

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.”

Two additional considerations are mentioned by the social workers but not the justices.  How the victim personally receives the message sent by capital punishment and the lost opportunity for resolution can both significantly hinder recovery.

The negative psychological impact of a law that tells a survivor that her experience is equal to that of a murder victim can in itself be disabling.  The underlying message that the child survivor receives is that she – as if murdered – is irreperable and might as well be dead. 

NASW also references the healing potential of future discussions between assailant and survivor.  A potential that might be lost if the assailant is put to death. 

I know the pain of realizing that the man who molested a naive teenager promising to never do it again, in fact did.  I also know the power, years later, in telling him of the anger and anguish; and hearing the reply “I’m so sorry.”   I thank the court for preserving this healing opportunity for other survivors and for seeing beyond conservative rhetoric toward a decision that is truly in the best interest of children.  

The American Civil Liberties Union (ACLU) ACLU of Louisiana and NAACP Legal Defense and Educational Fund also submitted an amicus brief regarding the disproportionate number of African American men who receive a death penalty sentence under existing laws. Worth reading and a mention here, the court however made no reference to these concerns in its decision. What impact the Kennedy v Louisiana decision might have on the Texas law — which has some restrictions not in the Louisiana version — is yet to be seen.

The potential for positive impact of grandparents on their children’s children is well established in literature regarding early childhood development. They are a bridge between the generations providing knowledge of the past and continuity within the family and community. Grandparents often act as rescuers of families in trouble, providing emotional and financial support.

In traditional extended families in which adults are at least amicable, the relationship between children and their grandparents develops with parental support. Where disputes arise over access and visitation rights, the benefits to a child of grandparents in her life must be balanced against the financial and emotional costs of a potentially lengthy court battle.

The demographics of grandparenthood are changing. The percentage of the population who are grandparents is growing. People are becoming grandparents at younger ages and living longer. As a result, more children are growing up with at least two living grandparents and those relationships last longer.

A growing number of grandparents find themselves completely responsible for their grandchildren often because a court determined it was in the children’s best interest to be removed from parental custody. Data from the 2000 census indicate that 4.5 million American children live in homes with grandparents as head-of-household. Almost 10% of those grandparent-dependent children reside in Texas and 244,000 of those have no parent living with them. Of the approximately 250,000 Texas grandparents who report being primary caregivers, 21% do so in poverty.

The potential also exists for grandparents to have a negative impact on the parent/child relationship or the wellbeing of the child. Abuse is one obvious situation. Another might arise when there is such contempt between parent and grandparent that an ongoing relationship would be in conflict with the child’s general welfare and relationship with her parent.

State courts have been examining the question of grandparent visitation for decades. In the early part of the 20th century there were no statutes permitting grandparents to petition for visitation. Courts took four different approaches when deciding questions of grandparent visitation over parental objections.

1. If there was a pending action involving the child, the court may have allowed the grandparents standing to pursue visitation, and in the course of evaluating the particular facts, ordered such visitation.
2. In limited circumstances, courts granted standing and visitation to grandparents even when there was no other matter before the court.
3. Some courts granted standing to grandparents to seek visitation with their grandchildren and then conducted a best interest analysis.
4. Lastly, some courts denied grandparents standing to request visitation outright and never addressed whether or not the visitation was in the child’s best interests.

As state legislatures developed laws to govern these custody decisions, Washington created the most liberal and far-reaching legislation allowing virtually anyone to sue for visitation if they could present evidence of a meaningful relationship with the child. This is the statute under which the Troxels sued to increase visitation with their grandchildren.

When the Troxels’ son divorced, he usually brought the children to the grandparents’ home during his visitations.  Therefore, the children had a preexisting relationship with their paternal grandparents.  When the son died, the grandparent/child relationship continued as before. 

However when the children’s mother remarried, she reduced the visits hoping to encourage blending of the new family.  Although their daughter-in-law never denied them visitation, they feared that this reduction would eventually lead to elimination of visits altogether.

So the Troxels sued and won, Mrs. Granville appealed, and the appeals continued to the Supreme Court which decided for Mrs. Granville. 

The 2007-2008 Texas family code (FAM 153.433-434) allows that the court should order possession or access of a grandparent to a biological or adopted grandchild if at least one of the parents still have legal parenting rights, if the grandparent can prove by a preponderance of evidence that denial would “significantly impair the child’s physical health or emotional well-being.”

Further that the grandparent(s) requesting access is parent of an adult child who is either deceased, declared incompetent, incarcerated within the previous three months, or doesn’t have legal access to the child.

If both parents are deceased or have had their parental rights terminated and the child is subsequently being adopted by someone other than the child’s step-parent, grandparents aren’t granted the right to sue for access.

At least one other state has addressed the issue of grandchild visitation rights since Troxel v Granville. California law provides that a court may grant visitation if it finds that the bond between grandparent and child is such that visitation is in the child’s best interest.

Grandparents have standing to petition for visitation in California if the child’s parents are separated, one parent’s whereabouts are unknown for more than a month, or the child isn’t living with either parent. The refutable presumption is that if the parents (whether natural or adopted) or single parent oppose visitation then it probably isn’t in the child’s best interest.

A big difference between the California and Texas statutes is the extension of mandatory mediation to visitation disputes involving grandparents. Only if mediation is unsuccessful, does the mediator inform the court and a hearing is scheduled.

The first cultural system a child learns to function within is the family – first immediate then extended. They learn that each member plays a role in the family system and certain rules must be followed. The often unspoken rules of families vary greatly depending on ethnicity and culture, size and parenting style, income, class and education status, even geographic location.

The family is a basic building block of society yet also quite complicated and not easily defined by laws or courts. The generational bonds that connect a child to place and culture should not be severed easily.

Grandparents are vital to their grandchildren and the state when stepping in as substitute parents. They are just as important when simply playing the role of grandparents.

Constitutionality of more inclusive legislation will be preserved if resources such as family counseling and mediation are mandated in disputes prior to and hopefully instead of going to court. Doing so should save money for petitioners, parents, and the state.

In cases where mediation fails, parental rights will usually prevail. However, the need for visitation hearings will be reduced if the grownups try to work out among themselves what is in the child’s best interest before filing suit.

 

References

American Association of Retired Persons (AARP), Texas State Fact Sheet for Grandparents and Other Relatives Raising Children.

Ellen Marrus, Over the Hills and Through the Woods to Grandparents’ House We Go: Or do we, Post-Troxel?, 43 Ariz. L. Rev. 751 (2001). (.pdf)

Senate Jurisprudence Committee Testimony on Current Charges involving Grandparent Visitation Rights, May 23, 2008, (Interim, Charges, Audio of Testimony [requires RealPlayer])

Casper, Lynne M. (2002) Continuity and Continuity in the American Family. Sage Publications, Inc. Thousand Oaks, CA

Family Law Code, Selected States and Ali Principles with Commentary (2008) Wolters Kluwer, Austin, TX

O’Connor’s Family Code Plus (2007-08). Jones McClure Publishing, Houston, Texas