(PART ONE OF THREE)
Here is more information for you about the recent Congressional hearings
into repeal or reform of CAPTA, The Mondale Act, which caused the states
to totally immunize social workers from liability in cases of false
accusations of abuse. Since the enactment of this immunity, false
accusations of abuse have flourished.
 
Following is the written testimony of Dr. Richard Gardner, noted expert in
the field of child abuse, during hearings on H.R. 3588, which would repeal
the Mondale Act. It comes via F.R.E.E. member Ferrel, who got it from
Dr. Gardner's office. My thanks to him for his efforts.
 
Brent Wellman
Director for Legislative Affairs, F.R.E.E.[tm]
 
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TO:        THE SUBCOMMITTEE ON EARLY CHILDHOOD, YOUTH AND FAMILIES:
FROM: Richard A. Gardner, M.D.
RE: HR3588 - Proposed Revision of the Child Abuse Prevention and Treatment
Act (CAPTA) (Public Law 93-247 [referred to as "The Mondale Act"])
 
     It is my understanding that the Committee on Economic and Educational
Opportunities will be considering either repeal or modification of CAPTA.
Full repeal of CAPTA would be a terrible mistake: it would deprive truly
abused children of the protection they sorely need, resulting in massive
political upheaval as the mental health and legal communities, the public,
and the media struggle with the fallout from this decision. Equally
important, it would deprive protection of those who might be falsely accused
of such abuses, already a media highlighted public concern. I recognize fully 
that financial considerations are an important factor in the Committee's 
decision. I believe that the implementation of the modifications described 
below--modifications I will be presenting in my forthcoming testimony before 
the Committee--will not only save the federal government significant money 
but also preserve the important functions of CAPTA:
 
1. The federal absolute immunity proviso must be significantly modified.
Absolute immunity, like absolute power, corrupts and fosters irresponsible
exploitation. In the U.S. immunity from prosecution has traditionally been
available only to specific groups essential to the functioning of the legal
system, e.g., judges and prosecutors. Total immunity encourages frivolous,
fabricated, and even malicious accusations. Qualified immunity, such as that
enjoyed by police officers, is a reasonable replacement. States that maintain 
the absolute immunity provision should not be entitled to federal funding. 
This change alone would reduce significantly the flood of false referrals 
being generated at this time, resulting in a formidable savings of federal 
monies.
 
However, simply modifying the immunity proviso is not enough.  There must be
potential consequences for a false accusation whether it be deliberately
made, the result of negligence, the product of delusion, or alleged for any
other reason.  Promulgating a false abuse accusation should be considered a
criminal act, ranging in severity from a misdemeanor to a felony, depending
upon the decision of the court. Malice should not be the sole standard of
culpability for this crime because proving malice is extremely difficult.
Rather, reporters should be held to an objective, reasonable person standard, 
i.e., whether an objective, reasonable person, in the same situation, would 
consider abuse to have taken place. Each state must have in effect a state 
law providing for the prosecution of any person who makes a false accusation 
in accordance with the objective, reasonable person standard.  A false 
accuser (whether it be an individual or a governmental agency) should be 
required to pay for all legal costs of an accused party who is proven 
innocent in a court of law. Persistent failure to prosecute false accusers 
should deprive the state of federal funding.
(CONTINUED IN PART 2 OF 3)
--- DB 1.58/004910
1:114/74)
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