What is Therapeutic Jurisprudence (TJ)?

I founded the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) in August, 2000, with Therapeutic Jurisprudence (TJ) as one of its two underlying theoretical constructs. Indeed, TJ informs and frames all of CFCC’s work. Many academics have heard of TJ, and the legal and judicial communities are becoming increasingly familiar with its meaning and implications for the practice of law. Nonetheless, there are some misconceptions surrounding TJ and its application. For example, one popular misconception is that TJ calls for judges and lawyers to be experts in psychology or social work.

Professor David Wexler, one of the two co-founders of TJ, and I recently published an article in the Encyclopedia of Criminology and Criminal Justice that helps to explain the evolution of TJ, its meaning, and its impact on the law across a wide range of practice areas.

Therapeutic jurisprudence is a field of inquiry that “focuses on the law's impact on an individual's emotional and psychological well-being.” Professor Wexler and I explain:

“TJ looks at the law as a social force that can produce therapeutic (helpful) or antitherapeutic (harmful) consequences. These consequences flow from substantive law, legal rules, and legal procedures (the "legal landscape") and from the behavior (the "practices and techniques") of legal actors, including lawyers, judges, court personnel, and others working within a legal context… Therapeutic jurisprudence aims to produce tangible, positive change: to promote the well-being of all legal actors and to improve the justice system so that it is more relevant and helpful for participants and their communities.” 

As we point out, TJ is a lens or framework through which to examine the legal and judicial systems. TJ asks us to think about the law in a very different way—to view the law as a helping profession rather than as an adversarial process in which there are always winners and losers. TJ urges judges and lawyers, for example, to consider the impact of their decisions and actions on the well-being of the parties who come before them. It asks all legal actors to think beyond the immediate facts of a case and to take into account the potential consequences, both intended and unintended, of their actions and decisions.

Addressing issues of marriage, divorce, custody, child support, adoption, property, and protection, among other issues, family law has a profound impact on people’s lives and well-being. Family law and the family justice system also include the child welfare system, or child abuse and neglect cases, and the juvenile justice system, or juvenile delinquency cases, both of which regularly define and/or change the trajectory of a child’s life.

Although TJ does not demand that judges and lawyers become social workers or psychologists, it does call for an interdisciplinary approach to judicial and legal decision-making. The social sciences offer important and helpful perspectives.

I believe that lawyers and judges in the family justice system should be trained to identify and address the legal and non-legal reasons underlying a family's problems. They also should be taught to examine the connections and interactions among family members, as well as the relationship of the family to community institutions. Judges and lawyers who use a holistic approach to strengthen these connections and who can find creative solutions to a family’s legal and non-legal issues are the true problem-solvers that these families and children need and deserve.

A Different Approach to Addressing Truancy

The Truancy Court Program run by the Center for Families, Children, and the Courts uses therapeutic jurisprudence and preventive law to address the issue of truancy. Through this approach, teachers (and/or other school officials), judges, volunteers, mentors, and parents work together to help students overcome obstacles that lead to excessive absences.  When we punish students, we don’t eradicate the reason behind their truancy, thus setting them up for an endless cycle of absences and punishments.

            Truancy programs are in effect in other states. However, the programs are run differently within each state to address the underlying problems that are unique to every school, district, or county. For example, Kanawha County, West Virginia has taken a very different approach, where a student who refuses to attend school can be removed from his or her home and put in a shelter. Placement in a shelter is a last resort, only used when a student refuses to attend school. Prior to that step, the circuit court system, school officials, social agencies, and parents work together to help students overcome attendance issues. In Kanawha County, after a student has had five unexcused absences, parents receive a legal notice from the school system, and a meeting is scheduled with the student, parents, and the County Magistrate. Then, the student has a court hearing and is put on probation. The student is only put in a shelter after all these steps are taken and the student has still refused to attend school.

            Not all students will benefit from the Truancy Court Program. Many might disregard the effort that others, such as parents, teachers, judges, etc., are putting in for them. Kanawha County’s answer to these students is taking them from their homes and putting them wherever space is available. Many problems can arise out of this situation: children who are in more need of shelters can be left out because truants are taking over the shelters’ resources, which is an issue within itself. Other problems occur when the truants are taken away from their families, communities, and schools and put in an unfamiliar environment. They may also fall behind in schools because of different curriculums – which may lead to more absences, placing the student in a never-ending cycle of truancy.

            Students who have excessive absences may fall behind in school or drop out altogether. Those who drop out of school can end up becoming involved in illegal activities or in jail.  Therefore, truancy programs are important and helpful to students in most situations. Unfortunately, there are students, such as the ones being addressed in Kanawha County, West Virginia, who will not want to or be able to benefit from truancy programs. Placing them in shelters may scare them into changing their habits, but doing so may also harm other children (who are in need of shelter services), as well as put more obstacles in the truants’ paths, preventing them from attending classes and undermining the objectives of the truancy program.

West Virginia has implemented a statewide effort to battle truancy. A 2012 survey report from the state (link below) shows that the truancy initiatives have resulted in a reduction in the number of absences from school and an improvement in school achievements, among other successes.

Read about West Virginia’s Truancy Program & the survey report:

http://www.courtswv.gov/court-administration/truancy/truancy.html

Read about Kanawha County’s truancy initiative:

http://wvgazette.com/News/201210060093?page=1

Reporting Child Abuse and Neglect: What Does the “Penn State Scandal” Tell Us About Our Laws and Values?

CFCC’s Director is a graduate of the Pennsylvania State University. Joe Paterno was her graduation speaker. That said, like the rest of the country, all of us at CFCC are horrified as we watch more and more shocking details come out in charges of sexual abuse committed by former Penn State assistant football coach Jerry Sandusky. It is perhaps just as disturbing that, if the allegations are true, there were many people who could have, and should have, put a stop to it.

One of the most troubling aspects of this story is the fact that so many people believed that abuse was occurring and did not intervene and report it to the authorities. Unfortunately, the truth is that while progress is being made, we still live in a culture where child abuse is “taboo.” Even trained professionals – teachers, school social workers, doctors – sometimes face internal resistance when reporting what they believe is abuse, especially if the alleged abuser is someone with power over them. Without solid evidence (or even when it happens in front of our eyes), Americans do not want to pry into the private lives of our neighbors, co-workers, students, or clients, and we tend to downplay what we know – especially if we could lose a job over reporting the behavior.

It is critically important that we as a nation and within our communities re-evaluate our attitudes toward the issues of child abuse, child neglect, domestic violence, rape, and more. We should take the time to learn the law and to consider our responsibility to protect innocent victims of the “private” but devastating crimes that occur all too often.

Under Pennsylvania law (23 Pa.C.S. § 6311), anyone who works in a public agency or works with children and has “reasonable cause to suspect” that child abuse or neglect has occurred in relation to their employment must report it to their organization head or his designee. The head of the organization then is required to report to authorities, but only one report needs to be made from each institution.

In the Penn State case, Mike McQueary (the graduate student witness) and Joe Paterno (the coaching legend to whom McQueary went with the information) seemingly both fulfilled their legal obligations by informing the athletic director and University Vice President Gary Schultz. Mr. Schultz violated the law when he decided not to investigate the allegations or report them to child protective services. Was he more concerned with prestige than the fates of countless young boys? As Joe Paterno said, with the benefit of hindsight and knowing the consequences, he believes he should have done more. Most of us feel passionately that he and Mr. McQueary should have protected those boys. In the moment, however, how many of us might have acted the same way– saved our job and our legacy by reporting it, as required by law, to our superior, trusting the “system,” and washing our hands of the disturbing situation? As a community and a nation, we should aspire to be better than that.

Pennsylvania Governor Tom Corbett has argued that Pennsylvania law needs to be changed to require anyone within an organization to report abuse to the police or the child protective agency when they see it, instead of requiring only the head of the organization to make the report. He believes that the benefits of efficiency are outweighed by the risk that the organization head will drop the ball and that others who could have prevented abuse will not do so. At a minimum, state law must protect those employees who do report suspected abuse. If such policies had been in place in Pennsylvania – or even within the Pennsylvania State University – any of the several employees who allegedly witnessed or heard accounts of child abuse might have come forward and thereby have prevented years of abuse by Sandusky.

We at CFCC agree that changing laws to ensure that more effective reporting measures are in place would be a major step in the right direction. Under Maryland law, anyone who has reason to believe a child has been abused must notify the local Department of Social Services or law enforcement agency and professionals working with children must also report to their organization head (Md. Fam. Law § 5-704 and § 5-705). The state of Maryland also has begun reviewing its child abuse reporting laws to make sure they are designed to best protect abuse victims. Criminalizing a failure to report in clear cases of abuse could be a valuable protection, although, as a recent Baltimore Sun article has pointed out, such a change may lead to unintended consequences. We at CFCC believe that this kind of evaluation and discussion are critical to protect our children. We hope to be part of an ongoing discussion long after the media ceases to cover the Penn State tragedy.

Along with changes in the law, we need to organize as communities to educate the public about our legal and moral duties to protect abuse victims. Policymakers must take a firm stance that abuse is not a “private” problem but a community crisis that must be addressed at every instance and at every level. How often do horrific incidents of child abuse occur yet not receive national news coverage? Let us make children’s health and safety a national priority. Let us ensure that we always act with the courage, the wisdom, and the “hindsight” that Joe Paterno wishes he had.