Hospital staffers report seeing a grandfather sexually fondle his mentally disabled granddaughter, who was being treated for burns.
A 14-month-old boy is dipped in scalding water, requiring two surgeries and six weeks of hospitalization.
A father admits having sexual intercourse with his 7-year-old daughter, beginning when she was 3.
Each of these cases ended up in Cook County Juvenile Court. Although child welfare workers acted to protect the children, none of the cases was prosecuted criminally.
The fact that suspected perpetrators of child abuse elude prosecution frustrates veterans of the Juvenile Court system, particularly when the cases are seemingly egregious.
Critics are even more outraged when, in the face of those decisions, authorities aggressively pursue cases such as that against the parents of an 8-year-old girl who was slapped by her Chinese immigrant parents for losing a ring and then lying about it.
More than 16,000 children have been removed from their homes by the Illinois Department of Children and Family Services in the last four years–3,353 in the 12 months ending last June 30–following allegations of abuse that were serious enough that state child-welfare officials believed the children’s safety would have been jeopardized had they been left in their homes. The total does not include children later removed by court order in cases where children were not immediately taken away.
Though the Cook County state’s attorney’s office does not keep statistics on how many of those cases eventually resulted in the filing of criminal charges, experts concede that the number of prosecutions is far fewer.
The decision not to file charges in cases such as these creates friction between the state’s attorney’s office–which decides when to prosecute–and some child-protection workers, who point to cases in which physicians, social workers or even judges find evidence of abuse.
Prosecutors concede that some cases–a minority, they say– have fallen through the cracks, but they also contend that most of the cases not prosecuted are too weak. The reasons usually involve the lack of physical evidence and witnesses, as well as the greater burden of proof required in a criminal case.
Prompted by concern about overlooked cases, however, the state’s attorney’s office last fall tracked every case coming into Juvenile Court for two months. One of their findings: Prosecutors may miss cases because they are discovered by a wide variety of sources other than police and physicians–from psychologists and teachers to social workers.
As a result, the office earlier this year instituted new procedures in the Juvenile Court to more closely examine cases of child abuse and identify for further review cases that might previously have been missed.
Welfare officials and prosecutors agree that filing criminal charges is not always the best solution in most cases of child abuse. The ultimate goal is to fix the problem–either through counseling of parents or removal of a neglectful parent–and ensure the child is protected.
“Ninety-nine percent of the cases that come through aren’t prosecuted, but that’s not the issue,” said Cook County Public Guardian Patrick Murphy, whose office represents children removed from abusive homes. “In most cases, you don’t want them to get charged, to get into the system.
“You want to work out the problems and get the kids back with the parents. You don’t want the parents in the joint. Most of the cases are. . . . correctable without prosecution.”
Still, there are exceptions. Murphy cited a number of cases culled from Juvenile Court files during the last 10 years to buttress his contention that prosecutors should have filed charges but did not. For instance:
– A mother allegedly fondled the genitals of her four sons, bit one hard enough to break the skin and left hair relaxer on her daughter’s head so long the child’s scalp was burned.
– An 11-year-old girl alleged that her grandfather molested her.
– A 5-year-old girl reported that her mother’s boyfriend molested her; she later was diagnosed with herpes of the throat.
Child-protection workers said they become even more frustrated when they see prosecutors zealously pursue cases such as that against the Chinese immigrant parents.
DCFS investigated that case last year, and the girl was allowed to remain with her parents under a protective order. The parents successfully completed classes in parenting skills and anger management, and went through family counseling.
Even though the case was closed by agreement of DCFS, the public guardian and the family, the state’s attorney’s office brought charges of domestic battery to a child against the parents. The charge could have resulted in the deportation of the parents and the girl–the state sought to protect–to China if the parents were convicted.
After the Tribune reported the parents’ plight, Cook County State’s Atty. Dick Devine dropped charges against the girl’s mother and allowed the father to plead guilty to a charge of simple battery, with an agreement to seek further counseling. Federal immigration officials then announced they would not seek to deport the family.
Murphy estimates that nine out of 10 cases that come through Juvenile Court are resolved without criminal prosecution. Of those cases, he believes a small number–maybe 5 percent–should be prosecuted. “A lot of them aren’t, and I don’t know why,” he said.
There are many reasons they aren’t, according to Assistant State’s Atty. Kevin Sheehan, supervisor of the felony review unit.
“Somebody’s name has to go on an indictment. Often it is clear that a child was abused–dropped into scalding water or beaten– and it occurred in the home,” he said. “Determining if you have the evidence to prove beyond a reasonable doubt is difficult.
“Relying on a process of elimination–who was in the house at the time–is not enough. We need a witness to say that person did that or a victim to say that person did that to me.”
David Erickson, first assistant Cook County state’s attorney, and Catherine Ryan, chief of the state’s attorney’s Juvenile Court division, said that their concerns about cases being overlooked prompted them to assign prosecutors to monitor every case that came into the Juvenile Court for two months last September and October.
The inquiry disclosed that cases come into the system in a variety of ways–not just because police were called–and therefore were not picked up on the prosecutorial radar.
“We have no legal requirement to investigate every case, but morally and ethically, where kids are victims, we have decided to take looks at the cases,” Erickson said. “We don’t want to stop the Juvenile Court process–which is concerned with resolving issues of child custody, for example–to make a criminal case.”
But “we will do what we can. These cases are a little more sophisticated than the usual case that comes through the office.”
Murphy, to support his position that cases deserving of prosecution have been overlooked, identified 20 cases of child abuse that occurred over the last 10 years, covering the administrations of Cook County State’s Attys. Richard M. Daley, Cecil Partee, Jack O’Malley and Devine.
When shown the list, Ryan and Erickson said 11 of those cases now are under review by prosecutors and investigators for possible prosecution.
Some cases, however, could not be prosecuted because evidence was lacking, Erickson said.
For example, he said, in the case where a father admitted having sex with a daughter beginning at age 3, the child would not talk about the abuse and therefore was not available as a witness. In addition, the father’s admission in Juvenile Court would not have been admissible in a criminal trial.
In the case involving the girl later diagnosed with herpes of the throat, the initial allegation was made in 1995, but no medical evidence of abuse was found. The onset of herpes did not occur until two years later.
“It’s like chasing a ghost in some of these cases,” Erickson said.
In the case involving the man accused of molesting his 11-year-old granddaughter, investigators could find no corroborating medical evidence or eyewitnesses. And the victim gave conflicting statements.
In two of the other cases– where the grandfather allegedly fondled his 5-year-old mentally disabled granddaughter and the mother who allegedly fondled her four sons–prosecutors are reviewing whether to file charges.
In yet another case, where a 14-month-old boy suffered severe burns to his back, buttocks, genitals, legs and feet, no charges were filed even after Dr. Richard Gamelli, chief of the Loyola University Hospital burn unit, testified that the injuries were consistent with being immersed in scalding water.
That case is now under review, Erickson said.
To the unsophisticated, it would seem logical that any case where DCFS or its experts find evidence of abuse would result in a prosecution.
That is not so, according to Erickson and Ryan.
“Our burden of proof is different in civil proceedings,” Ryan said, explaining that removing a child from a home requires proving that abuse occurred by a “preponderance of the evidence.” Translating that legal phrase to a percentage, a judge can find the evidence favors authorities by a minimum of 51 percent to 49 percent.
In a criminal case, the burden of proof is “beyond a reasonable doubt,” a legal threshold that does not translate to a numerical percentage, but is, experts agree, far higher than the “preponderance” standard.
“Our thing is child protection,” Ryan said. “We see a case and we know it’s not an accidental injury, so we can take action. As an investigation continues, there may be an allegation of a criminal act by an adult.”
That, Ryan and Sheehan say, is not enough to trigger filing of a criminal charge.
“We have an ethical obligation not to bring cases that do not have sufficient proof,” Sheehan said. “There is a big jump in a finding (in Juvenile Court) of abuse or neglect and a criminal charge.”
For example, in 1995 a man accused of raping his 14-year-old stepdaughter did not contest the evidence against him in Juvenile Court, but no charges were brought. The Juvenile Court findings, prosecutors noted, were based in part on hearsay testimony, which is not allowed in a criminal trial.
Without direct testimony, no prosecution could be brought.
Sheehan concedes that officials in the Juvenile Court find the process difficult.
“It is frustrating, not only for prosecutors, but for all citizens,” he said. “Of all the potential victims, children are the most innocent.
“But you can’t put cases into the system just because you think somebody did it. You’ve got to be able to prove it.”
