Child Protection History — ABA
John E.B. Myers*
The history of child protection in America is divisible into three eras. The first era extends from colonial times to 1875 and may be referred to as the era before organized child protection. The second era spans 1875 to 1962 and witnessed the creation and growth of organized child protection through nongovernmental child protection societies. The year 1962 marks the beginning of the third or modern era: the era of government-sponsored child protective services.
II. Child Protection Prior to 1875
It was not until 1875 that the world’s first organization devoted entirely to child protection came into existence-the New York Society for the Prevention of Cruelty to Children. Prior to 1875, many children went without protection, although there has never been a time when children were completely bereft of assistance. Criminal prosecution has long been used to punish egregious abuse. In 1809, for example, a New York shopkeeper was convicted of sadistically assaulting his slave and her three year-old daughter.
In 1810, a woman was prosecuted in Schenectady for murdering her newborn child.3 Although the woman admitted to several
people that she killed the baby, the jury found her not guilty, probably because she was insane. In 1869, an Illinois father was prosecuted for confining his blind son in a cold cellar in the middle of winter. Defense counsel argued that parents have the right to raise their children as they see fit, but the Illinois Supreme Court disagreed, writing that parental “authority must be exercised within the bounds of reason and humanity. If the parent commits wanton and needless cruelty upon his child, either by imprisonment of this character or by inhuman beating, the law will punish him.” In 1856, the first rape conviction in California history reached the state supreme court. The victim was thirteen years old. From 1856 to 1940, the majority of rape appeals in California involved child victims.
Prosecution was not the only remedy before 1875. As early as 1642, Massachusetts had a law that gave magistrates the authority to remove children from parents who did not “train up” their children properly. In 1735, an orphan girl in Georgia was rescued from a home where she was sexually abused. In 1866, Massachusetts passed a law authorizing judges to intervene in the family when “by reason of orphanage or of the neglect, crime, drunkenness or other vice of parents,” a child was “growing up
without education or salutary control, and in circumstances exposing said child to an idle and dissolute life.” Whether or not a statute authorized intervention, judges had inherent authority to stop abuse. Justice Joseph Story wrote in 1886:
For although in general parents are intrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of …. But whenever this presumption is removed, whenever (for example) it is found that a father is guilty of gross ill treatment or cruelty towards his infant children …. in every such case the Court of Chancery will interfere and deprive him of the custody of his children….
Before the spread of nongovernmental child-protection societies beginning in 1875, intervention to protect children was sporadic, but intervention occurred. Children were not protected on the scale they are today, but adults were aware of maltreatment and tried to help.