Legal Commentary

First, I want to thank Dan Markel and everyone at Prawfsblawg for the opportunity to blog about family law and Indian law issues. Second, I want to jump right in with a case I have been thinking about.  A few days ago, a student came  to  speak with me about supervising an independent research paper on the issue of childhood obesity and child abuse.  Earlier this summer, a South Carolina mother was charged with criminal neglect for permitting her 14 year old son to reach more than 555 pounds.  The state then removed the child and he is now living in foster care.  The question the student and I were discussing was is this child abuse?  South Carolina is not the first state to grapple with this question, but since these cases started appearing more than a decade ago, few satisfactory answers have emerged.

The federal Child abuse and Prevention Act provides a baseline definition for child abuse and neglect defining it as ?any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.?  Similarly, most state laws also require an imminent threat of harm.  However, while there is little question that obesity may cause severe health problems, do these future harms  meet the definition of imminent harm?  In addition, how comfortable are we  classifying childhood obesity as stemming solely from parental action?   The connection between poverty and obesity makes me wary of this conclusion.  If this is a problem affected by poverty, then how can we place the blame entirely on the parents? Further, as children get older and are less under their parents control, how effectively can a parent monitor their child?s food consumption?  Lastly, how much should intentions factor into findings of child abuse?  Is a parent who overfeeds their child as morally blameworthy as a parent who beats their child?  Should such intentions matter or is it simply the result, the child?s morbid obesity, that is significant?

                Such prosecutions also raise slippery slope type questions.  If parents can be blamed for their child's  obesity can we also hold them responsible for other eating disorders?  Can we charge parents with abuse if their child develops anorexia? Bulimia?  Could we charge a parent with neglect if the child?s candy consumption results in cavities and a lifetime of painful dental work?  If the answer to these questions is no, is there something different about obesity? As other have noted, http://www.msnbc.msn.com/id/16755130, the obese are increasingly discriminated against (for example they typically make 1-6% less than slimmer colleagues) yet they have little legal recourse.  When examining these childhood obesity cases I began to wonder how much they are influenced by these societal feelings about obesity and obese people.  In the majority of cases obese children have at least one obese parent, is this another example of discrimination against the overweight? Clearly childhood obesity is a serious problem, but is the best solution to lock up the parent and take away the child?