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Parental liability laws misguided and simplistic, legal scholar says


Mark Reutter, Business & Law Editor
217-333-0568; mreutter@illinois.edu

12/12/2005

CHAMPAIGN, Ill. — Durwood Pickle was shocked to find that the Recording Industry Association of America had sued him because his grandchildren had used his computer to illegally download music during visits to his Texas home.

Increasingly, parents – or in Pickle’s case, a grandparent – are being held responsible for the misdeeds of their offspring. While much of the new legislation has been driven by high-profile violent crimes, such as the 1999 shootings at Columbine High School in Colorado by two teenagers, the parents of shoplifters or Internet music downloaders can find themselves sued for damages.

Advocates say that holding mom and dad responsible for the crimes of their children is good public policy. Such laws reduce juvenile crime and motivate adults to become “better parents” on pain of suffering serious penalties, even jail terms.

In an article in the University of Illinois Law Review, Amy L. Tomaszewski questions these assumptions and asserts that parental liability laws are a misguided and simplistic solution to the problem of youth crime.

“Parents may be held liable for the violent crimes of their children under a theory of strict vicarious liability; however, the applicability of this theory is called into question when technology and business enter the picture,” Tomaszewski wrote. She is a former editor at the journal.

“Add the demarcation of ages, and it becomes very hard for legislators to draw a fair line. While a parent might have legitimate responsibility to oversee the behavior of a small child, a teenager, who is more likely to engage in inappropriate behavior, is more independent. Therefore, the relationship between poor parenting and the teen’s actions is more attenuated.”

The concept of parental liability is not new. Parents have long been subject to penalties for contributing to the delinquency of a minor, such as failing to get their child to attend school. Common law likewise held parents responsible for property loss or damage caused by their children, such as paying for a neighbor’s broken window.

What has changed over the last 18 years is the wider range of criminal and civil penalties against parents who fail to control so-called “malfeasant children.”

California was the leader in this movement. The Street Terrorism Enforcement and Prevention Act, passed by the state legislature in 1988, holds parents or legal guardians criminally liable when they do not exercise “reasonable care, supervision, protection and control over the minor child.” Punishments range from fines to imprisonment for up to one year.

Other states, including Illinois, have given broader authority to local authorities to hold parents responsible for acts committed by their children. These laws proliferated after the 1999 Columbine shootings.

A major motivation for expanding parental liability laws was the prevention of juvenile crime, according to Tomaszewski. But statistics show that juvenile crime actually started declining before the enactment of most of the laws.

Between 1994 and 2001, the arrest rate for juvenile murder, rape, robbery and aggravated assault dropped 44 percent. “The focus on juvenile crime seems to be based on politics and social responses to perceived threats, not to statistics,” she wrote.

In any event, establishing a link between juvenile delinquency and poor parenting has proven elusive. “Rarely is the link between the parent’s action or inaction and the child’s misaction unambiguous and transparent,” she concluded.

While research has shown a relationship between lax parenting and juvenile crime, punishing parents has not proved to be very effective, the article noted. In many cases, the parents require support and assistance – rather than punishment – in handling their children’s behavior problems.

Many parents of misbehaving children, for example, may not know how to discipline effectively. Research has shown that excessively strict parenting styles are as ineffective – and sometimes counterproductive – as overly permissive styles. “There is no exact science to parenting and no exact way of anticipating how the child will react in every situation,” the U. of I. scholar added.

When the focus shifts from criminal trials to civil cases, which emphasize recovery of damages, the question of how far parents can or should monitor their children’s behavior becomes relevant.

In other words, should Durwood Pickle and other adults be held responsible for the downloading of pirated music through file-sharing networks that they never knew existed?

“As far as deterrence is concerned, given the inability to effectively monitor another’s usage of the Internet, the only effective deterrent may be forbidding the use of the computer at all,” Tomaszewski wrote.

“While it is unlikely that a court would find the regulation of a minor’s Internet use violates her constitutional rights, the courts have acknowledged the difficulty in forming statutes regulating the Internet that do not fail First Amendment requirements.”

Her article is titled, “From Columbine to Kazaa: Parental Liability in a New World.”