Subject: Child Abuse Complaints DATE: Wednesday, June 12, 1991 Health (ASH), Washington, D
Subject: Child Abuse Complaints
DATE: Wednesday, June 12, 1991
FROM: John Banzhaf, Exec. Dir of Action on Smoking and
Health (ASH), Washington, D.C., (202) 659-4310
A MAJOR NATIONAL NEWS PROGRAM IS VERY INTERESTED IN
IMMEDIATELY LOCATING A PHYSICIAN, SOCIAL WORKER, TEACHER,
OR OTHER SIMILAR PERSON WHO MAY HAVE FILED -- OR IS
CONSIDERING FILING -- A COMPLAINT OF "CHILD ABUSE,"
"CHILD NEGLECT," ETC. BASED UPON EXPOSING A SUSCEPTIBLE
CHILD TO PARENTAL SMOKING (ENVIROMENTAL TOBACCO SMOKE).
IF ANYONE KNOWS OF A PERSON WHO HAS FILED -- OR IS
EVEN CONSIDERING FILING -- SUCH A COMPLAINT, PLEASE CALL
JOHN BANZHAF AT (202) 659-4310.
THE CONCEPT IS MORE FULLY DESCRIBED BELOW IN AN
ARTICLE BEING PREPARED FOR THE ASH SMOKING AND HEALTH
REVIEW. ITS SETS FORTH THE LAW IN TWO TYPICAL STATES,
AND ADDRESSES SOME OF THE MAJOR CONCERNS PEOPLE MAY HAVE.
Child Abuse Complaints: A New Weapon to Protect Nonsmokers?
As a new weapon to protect innocent nonsmokers, and
to be sure parents are aware of the deadly dangers their
smoking poses for their children, ASH Executive Director
John Banzhaf recently suggested in a major medical
address that physicians are legally as well as morally
justified in filing complaints of "child abuse" or "child
neglect" in situations where parental smoking creates
serious risks for minors. Here's what he said.
Parents may be investigated as child abusers if they
smoke in the presence of their infants or young children,
especially if the minors have asthma, hay fever,
allergies, or other conditions making them especially
sensitive to secondhand tobacco smoke, suggested ASH
Executive Director John Banzhaf.
Presenting the prestigious Maurice Segal Memorial
Lecture at Tufts University, Banzhaf told leaders of the
medical profession in Boston that new scientific evidence
and recent court decisions impose a legal duty upon
physicians to report to authorities if parental smoking
places children at serious risk, or causes or aggravates
significant medical problems.
Calling smoking in the presence of infants and
children "the most prevalent yet least reported form of
child abuse," Banzhaf said that deliberately exposing
minors to a substance which doubles their risk of
contracting lung cancer -- and may cause them to go into
respiratory distress -- is inexcusable, and that doctors
can no longer stand idly by while their young patients
are "literally being poisoned by their parents."
WHAT COURTS HAVE DONE
Courts have now recognized that parental smoking may
be a deciding factor in custody disputes, and have issued
orders prohibiting parental smoking in the presence of
In one case a judge even ordered a child
removed from a home where parental smoking threatened the
child's health, and both mother and father refused to
modify their smoking behavior.
Another indication of how far courts may be willing
to go to protect children from harmful parental habits
is the growing number of situations in which they have
ordered the incarceration of pregnant women who use
illicit drugs, or permitted the women to be prosecuted
Asking courts to deal with parents who smoke in the
presence of their children should be far less contro-
versial, suggests Banzhaf, for at least three reasons.
First, he says, court-imposed restrictions on
smoking in the pres- ence of a child apply equally to
both sexes, unlike the incarcerations or prosecutions
which only impact women.
Second, a child is a "person" who is clearly
entitled to the full protection of the laws, whereas the
legal interests of a fetus -- which in many cases may
lawfully be aborted -- are generally less than those of
Third, and most importantly Banzhaf claims, is that
a court can simply order a parent to smoke in a garage
or porch, or even in another room, whereas forcing a
female addict to cease using illicit drugs is far more
difficult and more intrusive.
Indeed, says Banzhaf, in the overwhelming majority
of cases in which parents are told that smoking in the
presence of a child may have to be reported as child
abuse, they are likely to take the simple step of simply
agreeing to do it elsewhere.
Otherwise, they would risk having the doctor learn
from a spouse, older sibling, or even the child himself
that smoking was continuing to aggravate the child's
medical condition, or from a routine blood test which
detected elevated levels of carbon monoxide or nicotine's
In cases where parental smoking in the presence of
a child with serious asthma or other breathing problems
can literally endanger the minor's life by triggering
respiratory distress, a doctor has a clear obligation to
his young patient to report the situation to the
authorities, says Banzhaf.
"Where a child has had to be rushed by ambulance
repeatedly when parental smoking triggered an asthmatic
attack and prevented him from breathing, and the parents
refuse to heed the doctor's warnings and continue smoking
next to the child, a physician's moral, professional, and
legal obligations are clear," he says.
Even in situations where immediate physical harm
cannot yet be detected, physicians may nevertheless be
justified in reporting their suspicions for evaluation
by the authorities, says Banzhaf.
Noting a recent study in the New England Journal of
Medicine proving that parental smoking can literally
double a child's risk of eventually contracting lung
cancer, he suggests that forcing a child to bear those
risks constitutes "maltreatment."
After all, he says, if a doctor found out that a
child was being needlessly exposed to significant levels
of asbestos, benzene, radioactive particles or other
proven carcinogens at home, he would certainly be
justified in taking action before a malignancy was
detected, and tobacco smoke contains all of those
substances as well as thirty other chemicals known to
SOME CONCERNS ANSWERED
As with any other new concept, there are some
questions or concerns. Here are some of the major ones.
First, some have argued that it may be unfair to
even suggest (which is all the initial report does) that
a person may be a "child abuser" if he or she does not
realize or appreciate the danger ETS can pose for
children. The answer is that such a report should be
made only after a physician has fully advised the parents
of the dangers their tobacco smoke poses for the child,
and they continue to subject the child to these dangers.
This approach is consistent with the language found
in child abuse and child neglect statutes in various
states. [SEE STATUTE BOX]
Second, some -- knowing of the difficulties and
uncertainties which are often involved in determining
whether more traditional types of child abuse (such as
beatings and sexual contacts) have occurred -- may be
concerned that it will be equally difficult to determine
if a young child has or is being exposed to tobacco smoke
in the privacy of the home, and that permitting child
abuse complaints to be based on ETS may lead us into a
quagmire of proof.
However, in many cases where a parent continues
smoking in the presence of a young child, there will be
another spouse, or unrelated adult, or an older child
living in the home, and therefore in a position to report
and document the action. Where there is not, a simple
blood, urine, or saliva test for the breakdown product
of nicotine would provide conclusive proof that the child
was being exposed to high levels of tobacco smoke.
Third, some may wonder if exposing a child to tobac-
co smoke can be considered as serious as the more
traditional sorts of child abuse (like beatings and
sexual contact), and whether treating ETS exposure as
"child abuse" or "child neglect" will require substantial
resources to investigate, resolve, and provide continuing
monitoring of such situations which could be better used
dealing with more traditional abuse situations.
However, since children with asthma, bronchitis, and
other medical conditions can experience life-threatening
respiratory failure from exposure to ETS, it can in some
cases be as serious as the more traditional forms of
In addition, because of the millions of young
children who are exposed to tobacco smoke in the home,
the cumulative effects of this form of child abuse may
be many times more serious (in terms of lives affected,
dollar costs, etc.) than the much smaller number who are
victims of more traditional forms of child abuse.
Fortunately, however, the problem would seem to be
one which can be remedied far more easily than tradi-
tional cases. In those latter situations, the beatings
or sexual contacts usually arise from deep-seated mental
or behavioral disorders which cannot easily be modified
by those afflicted despite protective orders, the fear
of sanctions, etc. Therefore, enormous resources may
often be necessary to protect one child.
In sharp contrast, the overwhelming percentage of
parents who smoke have no such mental problems, and may
reasonably be expected to cease smoking in the presence
of their children once they are warned that it may
constitute child abuse. Indeed, the remedy sought when
such complaints are filed -- that the parent stop smoking
in the presence of the child, and confine smoking to
other portions of the home -- requires only a very minor
behavioral modification, even if the parent might find
it difficult if not impossible to cease smoking entirely.
Finally, although we tend to read reports only about
the most egregious examples of child abuse, many are far
For example, a D.C. area couple were recently found
guilty of child neglect, and had their 10 year old child
removed to a foster home, because they left him along for
a few hours in the afternoon!
Fourth, some may suggest that many things and ac-
tivities create a risk for children, and that it would
be unreasonable to complain about suspected "child abuse"
or "child neglect" simply because a parent permits a
child to ride a bicycle, eat a hamburger or some ice
cream, or breath the air pollution found in most cities.
But children engage in activities like riding a
bicycle, hiking, playing football, etc. primarily for
their own enjoyment and pleasure, and because it helps
them to develop physically and mentally. In virtually
all such cases the risk is small compared with the
expected benefits. However, in the case of being forced
to breath a parent's tobacco smoke, the activity of
smoking is carried out entirely for the parent's
gratification, and the child clearly derives no benefits
Similarly, although eating too much beef or ice
cream can lead to medical problems, the children achieve
both pleasure and nutrition from eating such foods, and
the danger lies only in excessive consumption. In the
case of tobacco smoke, the child derives no benefit
Moreover, since tobacco smoke does cause serious
health problems for children, there is no justification
for exposing them to it, even if there were some
incidental benefit. For example, if a child is known to
be so allergic to nuts that consumption can trigger
serious medical complications, a parent who feeds the
child products containing nuts is probably guilty of
"child abuse" or "child neglect," even if eating the food
products provides some nutritional benefit and pleasure
to the child.
Finally, there are some dangers -- such as that
caused by outdoor air pollution -- which are unavoidable,
and thus the failure to protect the child cannot be
regarded as "child abuse" or "child neglect" since both
concepts require that there be some viable alternative.
[SEE STATUTE BOX]
STATUTE BOX: THE LAWS OF MICHICAN AND MASSACHUSETTE
The Child Protection Law of Michigan, 722.622 defines two
The first, "child abuse," means"
harm or threatened harm by a person to a
child's health or welfare which occurs through
nonaccidental physical . . injury . . or
The second, "child neglect" means:
harm to a child's health or welfare by a
parent, legal guardian, or person who has
custodial care of the child which occurs by:
. . (ii) Placing a child at an unreasonable
risk to the child's health or welfare by
failure of the parent, legal guardian, or
person who has custodial care of the child to
intervene to eliminate that risk when that
person is able to do so and has knowledge of
Moreover, 722.623 provides that any "physician" who has
"reasonable cause to suspect child abuse or
neglect shall make immediately, by telephone
or otherwise, an oral report, or cause an oral
report to be made, of the suspected child
abuse or neglect to the department."
Section 722.625 provides that:
"a person acting in good faith who makes a
report, cooperates in an investigation, or
assists in any other requirement of the act
shall be immune from civil or criminal
liability which might otherwise be incurred
thereby.". . . "a person making a report or
assisting in any other requirement of this act
shall be presumed to have acted in good faith.
However, in sharp and direct contrast, Section 722.633
(1) A person, required to report an instance
of suspected child abuse or neglect, who is
required to report under this act and who
fails to do so, is civilly liable for the
damages proximately caused by the failure.
(2) A person, required to report an instance
of suspected child abuse or neglect, who is
required to report under this act who
knowingly fails to do so, is guilty of a
Massachusetts C. 119, `15 51A provides that a
physician must report to the authorities for
investigation and possible intervention if he or she has
"reasonable cause to believe" that a child under 18 is
suffering from "serious physical injury" or
Moreover, these terms have been defined by an
official opinion of the Attorney General. In it he
ruled that "reasonable cause to believe" means a
"relatively low degree of accuracy," suspicion,
He has also determined that ""serious physical
injury" includes "all but the most negligible or de
minimis injuries to children." In one case mere bruises
satisfied this minimal requirement.
This expansive interpretation is not surprising in
view of the very strong legislative intent expressed in
C. 119, `15 1:
"to insure that the children of the
commonwealth are protected against the harmful
effects resulting from the absence, inability,
inadequacy or destructive behavior of parents
or parent substitutes."
WHAT YOU CAN DO
1. Bring copies of this article to the attention of
physicians, teachers, social workers, etc.
2. Help educate parents about the dangers tobacco
smoke causes for young children and even teenagers.
3. Write letters to the editor and call local talk
shows about this new approach to protecting nonsmokers.
E-Mail Fredric L. Rice / The Skeptic Tank