The Monster under the Bed: The Imaginary Circuit Split and the Nightmares Created in the Special Needs Doctrine's Application to Child Abuse
2012; Cambridge University Press; Volume: 65; Issue: 2 Linguagem: Inglês
ISSN
0042-2533
Autores Tópico(s)Law, Rights, and Freedoms
ResumoI. INTRODUCTION 564 II. SPECIAL NEEDS AND THE CHILD ABUSE PROBLEM 567 A. The Foundation of Special Needs: Finding Functionality in the Fourth Amendment 568 B. T.L.O.: Turning Administrative Searches into Special Needs 571 C. Special Needs: The Development of an Exception and the Confusion It Caused 573 D. Child Abuse in the United States 577 III. THE NIGHTMARE SPLIT 580 A. The Special Needs Circuits: The Fourth, Seventh, and Tenth Circuit Approach 581 1. The Seventh Circuit 581 2. The Fourth Circuit 584 3. The Tenth Circuit 585 B. The Rejecting Circuits: The Second, Third, Fifth, and Ninth Circuit Approach 587 1. The Third Circuit 587 2. The Ninth Circuit 588 3. The Second Circuit 590 4. The Fifth Circuit 591 C. The Seventh Circuit's Jurisdictional Analysis ........ 593 IV. FINDING COMMON GROUND AND RECONCILABLE DIFFERENCES 594 A. Who Is Investigating and How? 595 B. Circuit Agreement over Individual Interest 598 1. The Child 598 2. The Parents 600 C. How the Location of the Search Explains the Split 601 V. CREATING A UNIFIED APPROACH 605 A. Location 605 B. Intrusiveness of the Investigation 607 C. The Role of Law Enforcement 610 D. CPS Regulations 612 VI. CONCLUSION 613 I. INTRODUCTION Kessler Wilkerson was only two years old on the morning of October 16, 1976.1 At approximately 10:30 a.m., neighbors heard loud noises emanating from inside the Wilkerson trailer, alongside the sound of Kessler's crying and his father's screams.2 Two hours later, the now-quiet father delivered his two-year-old son to the emergency medical technicians. Despite their attempts to resuscitate the boy en route to the hospital, Kessler was pronounced dead on arrival.3 Discoveries in the hours and days that followed made Kessler's death even worse. Kessler's autopsy revealed multiple bruises all over the child's body and . . . significant bleeding and a deep laceration of the liver, which resulted in his death.4 Testimony after the fact revealed that Kessler's father Kenneth Wilkerson repeatedly kicked him, whipped him with a belt, and tied up Kessler in order to bring him up to be a man.5 What makes Kessler's death so tragic was that it came at the hands of his father's repeated beatings witnessed by others who did not know abuse when they saw it, and who never bothered to report the abuse.6 By the time anyone paid attention, it was too late. Kessler was too young to call out for help, leaving the state unaware of the abuse and unable to intervene. Unfortunately, tragic results can also ensue from an investigation of a child abuse allegation. …
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