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Parental liability laws misguided and simplistic, legal scholar says
Mark Reutter, Business & Law Editor
217-333-0568; mreutter@illinois.edu
12/12/05
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.”
