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Wednesday, September 21, 2011
The American with Disabilities Act was signed into law in May 1990. It sought to guarantee equal opportunity for people with disabilities in public accommodations, commercial facilities, employment, transportation, state and local government services and telecommunications. It also sought to prohibit private employers from discriminating against qualified individuals with disabilities in applications for jobs. Employers cannot likewise use as basis a person’s disabilities in making decisions such as firing, compensation, promotion, job training and other privileges of employment.
The ADA defines a person with disability as a person who has a physical or mental impairment that substantially limits his major activities or has a record of impairment or is regarded as having impairment.
The situation of applicant C in Company X falls is similar to the case of Jose Zamora who was denied employment by Wal-Mart. Jose Zamora is a wheelchair bound paraplegic who applied for a job with Wal-Mart for six (6) times between 1991 and 1993. The store manager, however, informed Jose Zamora every time he applied for work that there was no job openings in any of Wal-Mart’s stores. Based on the findings of the Equal Employment Opportunity Commission (EEOC), the reality was that there was that there was 133 job openings at the time of Jose Zamora’s applications. He was qualified for 83 of these job openings. For this reason, the federal jury required Wal-Mart to pay Jose Zamora with US$ 3.6 million.
I agree with this decision. The American with Disabilities Act prohibits an employer from discriminating against persons with disabilities. They are prohibited from firing them or from refusing to hire them on account of their disabilities, especially when their disabilities have not relation to the nature of the job being performed. Thus, an offer cannot ask whether an applicant for a job can perform certain functions when these functions are not related to the nature of the job being performed. In this case, while Jose Zamora, or in your situation applicant C may have difficult in walking around the company premises, the same should not be a hindrance since there are other functions which do not require employees to go around the company premises.
Because of the protection given by the American with Disabilities Act, business organizations have started to train their recruitment officers on the proper manner of handling job interviews. According to Richard Stein (1993), “Clearly, the ADA legislation imposes an affirmative obligation upon employers to assist a disabled job applicant in achieving an employment opportunity. The breadth and expense of the obligation to provide a ‘reasonable accommodation’ must be carefully reviewed by employer.” To ensure compliance with this law, employers must act only questions which are relevant to the job and must refrain from asking questions such as whether a person has disabilities or impairment. At present, business organizations have also adapted a more accommodating recruitment procedure, and the entire job application, interview and hiring are now protected against violations of the ADA.
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There was a time when older workers were placed at a disadvantage as they were discriminated by their potential employers on account of their age. The Age Discrimination and Employment Act was eventually passed to protect the rights of older workers against discrimination Passed in 1968, the ADEA seeks to “promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment, to help employers and workers find ways of meeting problems arising from the image of age on employment” (David Neumark, 1997).
Under the ADEA, discrimination against a person because of his or her age with respect to any term, condition, or privilege of employment which includes hiring, firing, promotion, layoff, compensation, benefits, job assignments and training is unlawful. This law also includes protection of employees who shall oppose employment practices that discriminate based on age or who shall file an age discrimination charge or who shall participate in any investigation, proceeding or litigation under the ADEA.
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Based on the situation in this case, the following can be inferred: 1) employee B who received an ‘above average’ rating was denied promotion on account of age; and 2) his co-worker was given a promotion despite his rating which is “adequate” because the management considered age as a basis for promotion. This falls squarely on the prohibitions of the ADEA.
The case of Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536 stresses the importance of compliance with the ADEA. In this case, the city, in an attempt to bring the salaries of their younger police officers up to the regional average, adopted a policy that would give proportionately higher raises to officers having less than five years experience. Their intention is that they want the salaries of younger police officers to be competitive with the regional average. The older police officers however complained with the court. According to the older police officers, this policy discriminated against them since they are virtually disqualified from the salary increases in view of the fact that majority of them have been in the service for at least five (5) years. Consequently, they will receive lesser wages compared to the younger police officers who have served only for less than five (5) years. Though the pay raise discrepancy is based on the yeas of experience, common sense however dictates that older officers will be prejudiced by the simple fact that they are the ones who are more likely to have served for at least five years. The Supreme Court also made a ruling in this case that it is not necessary to violate the ADEA that there is intent to discriminate against the older workers. In this case, the city did not have an intention of discriminating against the older police officers. It was however clear that by implementing the policy the older police officers were subjected to discrimination. Thus, the Supreme Court said that the plaintiff may file a claim based on age discrimination simply by negative impact on their part even when there is no direct evidence of discriminatory intent.
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The Family and Medical Leave Act (FMLA) is a law that took effect on 1993. It protects the right of eligible employees to be entitled to leave when necessary to take care of a newly born child; when necessary to take care of a son or daughter placed with the employee for adoption or foster care; or when necessary to take care of a spouse, son, daughter, or parent who is suffering from a serious health condition; or when necessary to receive treatment for a serious medical condition that prevents the employee from performing his job.
Pursuant to the FMLA, an employee who takes his leave is protected from being terminated, demoted or punished for his leave provided that the requirements of the law is complied by the employee concerned. It shall be unlawful under the FMLA for an employer to deny an entitled employee an FMLA leave or to discriminate against or discharge an employee for exercising his rights under the FMLA.
In the same situation below, the manager is right in denying the request to be paid for the 11 weeks of withheld salary. The following can be concluded based on the situation: 1) the employer is covered employer for having more than fifty (50) employees; 2) the employee is likewise a covered employee since he has worked for more than twelve months with the company and has applied for leave to care for his spouse. The FMLA, however, only protects the right of the employees to be able to return to work after the leave. It does not require employers to pay the employee while they are on leave, unless the employee has extra leave credits which he can use with pay from the company.
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The actual case of Hanger v. Lake County highlights the importance of complying with the FMLA leave. In this case, Susan Hanger was connected with the Lake County Board of Commissioners as head of the human resources and safety department. She took a FMLA leave in May 1999 to give birth. Meanwhile, her employer temporarily hired Pamela Parkinson to replace Hanger. Subsequently, the commissioners became impressed with the performance of Parkinson that they decided to place her in charge of the human resources department. Upon her return to work, Hanger continued to receive the same pay and benefits even though another person was already performing her job. She eventually resigned in August 1999. She was reinstated afterwards but resigned again and moved out of the country. In August of 2001, more than two years after her first resignation she filed a suit for violation of FMLA.
It is apparent in this case that the employer virtually terminated the employee who was on leave under the FMLA. While the employer is allowed to hire temporary employees to perform the functions of the employee who is on leave, the same lasts only until the return of the employee who is on leave. Thus, the Court of Appeals ruled in this case that the employer of Hanger violated the provisions of the FMLA when they virtually demoted her upon her return. The law protects the right of the employees to take their leave when necessary to care for a newly born child. Such was the situation in the case of Susan Hanger who needed to take care of her child. Thus the employer violated the FMLA when then replaced Susan Hanger despite the fact that she has returned to work upon the end of her leave.
However, the Court of Appeals also declared that the protection given under the FMLA is subject to certain limitations. One of which is that the rights under the FMLA must be exercised with the time limit.
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It is estimated that more than 30 million youths will never come into contract with juvenile justice system in the United States. (Laura Nissen1) They are lucky because they will never be labeled as juvenile delinquents. Yet, more than a million youth below the age of 18 will come into contact with the juvenile justice system. (Laura Nissen 1) These are the ones who will be labeled as juvenile delinquents. They will be placed inside institutions for rehabilitation.
The youth today is facing much more difficult challenges and obstacles to their lives. The world that they know now is very much different from that of their parents and their ancestors. They are now more exposed to family problems, vices, antisocial behaviors and criminal acts. Children are much more vulnerable to peer pressures and influences. Statistics shows that “between 1979 and 1989 our youth population declined by 11% and the high school age population declined by 2.8 million.” (George Hart 1995). This is followed by a steady increase in the number of youths placed in confinements. Research shows that “our confined juvenile populations rose steadily and expenditures for juvenile correctional facilities grew from $1.3 billion to more than $2.8 billion dollars.” (George Hart 1995) The present trend of jurisdictional transfers of juvenile delinquents from juvenile courts to adult courts is making the problem of juvenile delinquency a lot worse. It must be stressed that when juveniles are placed under the jurisdiction of adult courts they can be confined in prisons together with adults.
The reality is that we live in a world where the minors are capable of committing a crime as heinous that which an adult offender can commit. The state therefore as the “parens patriae” or the parent or the guardian of its people is responsible for the welfare of its people, especially the minors. It has the duty to pass laws designed to protect and care for the minors within its jurisdiction. The objective is to prevent these minors from further committing delinquent acts, to rehabilitate them and to restore them to mainstream society. It must continue to develop policies and programs to address the needs of the youth and protect them from the risks that they are exposed to. It is because of this reason that the juvenile justice system was created.
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Several studies have been made so that the root cause of juvenile delinquency may be addressed. It is worth noting that majority of the cases of juvenile delinquents have problems with school. They are either not studying or they have dropped out of school. Thus, it was suggested that juvenile delinquency has direct relationship with a child’s problems at school. Perhaps, juvenile delinquency is a direct result of a child’s learning disabilities.
According to studies, children with disabilities represent 26% up to 73% of juvenile delinquents. (Katherine A. Larson 358) Accordingly, three theories have been suggested to explain the possible correlation between learning disability and juvenile delinquency. The first is the School Failure Hypothesis. Essentially, this hypothesis states that a child who suffers from learning disability is more likely to fail in school. The failure in school has a negative impact on a child’s self image. To explain further, it is possible that children who suffer from learning disabilities are labeled by their teachers and peers in school as different. Being labeled as different in schools negatively affects a child’s perception of himself which may cause him to alienate himself from his peers and his teachers. Being labeled as different may also cause the child to reject his peers and his teachers and even the institution that they belong which is the school. As these children rebels from social institutions, they are more likely to find acceptance from gangs and engage in delinquent activities. Negative self-image further affects a child’s self image leading to dropping out of school which further leads to delinquency.
Research affirms that children with learning disabilities have significantly higher rates of dropout from schools than children who do not have learning disabilities. (Katherine A. Larson 358). Research also affirms that there is a strong link between difficulty in school and juvenile delinquency (Katherine A. Larson 358). Some research, however states that appropriate intervention at school may decrease the chances of juvenile delinquency of individuals with learning disability.
Another theory which attempts to explain the relationship between learning disability and juvenile delinquency is the Susceptibility Theory. The Susceptibility Theory explains that certain types of personality characteristics result in increased susceptibility to delinquent activity or in the probability of being adjudicated as delinquent. Under this theory, it is not school failure that is the cause of delinquent behavior but rather the personality traits of a child with learning disabilities that makes him susceptible of delinquent behavior. For instance, children with learning disabilities also lack impulse control, unable to anticipate the consequences of their actions and have poor social perceptions. (Shelly Wilson Hook citing Waldie & Spreen 1993) These personality traits make them unable to recognize or interpret people leading to their delinquent behavior.
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The criminal justice system is an arm of the government that ensures that offenders who have committed crime are arrested and brought to justice. Under the criminal justice system, the police officers arrest the offender and temporarily place him behind bars. The prosecutors file a case against him so that he may be punished to the full extent of the law. At the other side of the spectrum are the criminal offenders. Though they may have committed a crime there are still entitled to present any kind of defense available so that their guilt may be established. Since they deal with the state all offenders are granted constitutional rights at the time of the arrest so that they may be able to properly defend themselves against the immense and broad power of the state.
Under this process, adults and offenders have similar constitutional rights at the time of the arrest. This is in view of the landmark decision in the case of In re Gault where the Supreme Court declared that the application of constitutional rights is not limited to adult offenders (Susan Mezey, 1996, p.2). Police officers need to obtain an arrest warrant. An arrest warrant may be dispensed with only when the offender is arrested at the time when he has just committed, is in the process of committing or is running away from the scene of the crime. At the time of the arrest, offenders may be handcuffed, photographed and fingerprinted. The police officer needs to recite to him his Miranda rights. The offender has to be informed that he has the right to be silent and that anything he says can be said against him in court. The offender needs to be informed that he has the right to an attorney and that if he cannot afford an attorney he will be provided a public attorney by the state. The reason for the Miranda warning is that regardless of age an offender has the right to be informed of the reason why he is being arrested.
The essential difference is that if the crime is a misdemeanor the police officer may arrest the minor even on the basis of a reasonable cause (“Juvenile Law”, p.1). The situation is different in the case of an adult where the police officer needs probable cause before he can take him into custody. This is in view of the constitutional protection granted under the right against unreasonable searches and seizures.
A juvenile offender who is arrested for a crime is given the opportunity to make two completed phone calls to his parent or any guardian and to his attorney. This is a juvenile right. The reason for the phone call is to afford the juvenile an opportunity to seek advice or assistance from any person who has responsibility over him. It must be stressed that minors are presumed to be incapable of making important decisions for themselves. As such, they need the guidance and advice of their parents or guardians. In addition, the police officers are also procedurally required to notify the minor’s parents or guardians of the arrest. If the minor refuses to call his parents or guardian out of fear it is the police officer’s responsibility to notify the minor’s parents or guardian.
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From the moment of the arrest, the police officer needs to make a choice whether he will detain the minor or release him from his custody. If the police officer decides to detain the minor the police officer is required to place the minor in a separate holding facility. The minor may not be placed in the same holding facility as the adults. If the police officer decides to release the minor from his custody then the police officer may simply issue a warning to him. If the police officer decides to take the minor before a Probation Officer he must do so within 24 hours from the time of his arrest (“What is Juvenile Arrest”, p.1). The Probation Officer will be responsible to make the decision whether he will release the minor, order informal counseling, informal probation or order a petition to be filed against him. The reason why the minor needs to be presented before a probation officer as soon as possible is for another individual to determine whether there is a legitimate and valid reason for his arrest and to release him if there is no reason for him to be detained.
It is also essential for the police officer to explain to the juvenile his rights in a language that is intelligible to him. Thus, it is insufficient that the police officer recites to him his right. During the trial the juvenile may question his arrest on the ground that the reason for his right was not explained to him in a language that is intelligible to him.
The additional protection given to the minors is pursuant to the social justice principle. It is due primarily to the fact that the juvenile offender’s age makes him incapable of protecting and defending himself against the police officers. It must be stressed that if the adults are powerless against the mighty police officers who deal with hardened criminals as part of their job then the minors are all the more powerless against them. Their young age and immaturity also makes them more susceptible to abuse at the hands of police officers. Since they do not know the law and their rights the police officers may take advantage of them. Moreover, while it is also the policy in the adult criminal justice system to rehabilitate and reform criminal offenders, minors are given special treatment in accordance with the duty of the state as the parens patriae of the people.
However, there are social reform movements that argue against the expansion of government protection afforded to minors. They believe that it would be more in keeping with the purpose behind the creation of the juvenile justice system for the juvenile justice system to be given more autonomy.
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The US Juvenile Justice System
Prior to the creation of the juvenile courts, minors aged seven (7) and above who were found to have committed misdemeanor were imprisoned together with the adults. Whatever law is imposed for the punishment of adult offenders was applied to minors. Minors were treated as harshly as adult offenders. In fact, in 1648, there was a law in Massachusetts which imposed death penalty for any child over 16 who shall commit the offense of cursing their natural father or mother.
However, later studies and research showed that the incarceration of juvenile offenders together with adult offenders does more harm than good not just to the juvenile offenders but to the society as well. This happened during the early years of the 19th Century where political and social reformers successfully pushed for reforms and instituted several changes in the society such as right of suffrage among women, protection of children against labor, and the institution of eight-hour work day. With the help of social and political reformers, several changes were introduced in the criminal justice system and reformers started to rehabilitate rather than punish minors. Society began to have a paradigm shift insofar as their treatment of juvenile delinquents is concerned. Thus, the Juvenile Justice System was created to reform US policies regarding juvenile offenders. Thus, the New York Society for the Reformation of Juvenile Delinquents led the opening of the House of Refuge which was the country’s first reformatory.
The First Juvenile Court
In 1899, the first juvenile court was established by Jane Adams in Chicago, Illinois. Its establishment was an affirmation of the fundamental principle that children are developmentally different from adults (Shay Bilchik, 1999, p.1). Minors are also considered to be more amenable to treatment and rehabilitation (Shay Bilchik, 1999, p.1). Considering these fundamental behavioral differences between an adult and a minor, placing juvenile offenders in the same confinements and treating them in the same manner as adults shall not be good for their rehabilitation and transformation. Thus, the juvenile justice system was created to utilize personal, individualized and treatment-focused approach as a long term solution to the problem of juvenile offenders (Patricia Allard and Malcolm Young, 2002, p.4).
Barriers to the Effective Implementation of Juvenile Justice System
Research shows, however, that there are certain barriers to making the juvenile justice system an effective tool for rehabilitation and treatment. One of the reasons are the incidences of judges who abuse their discretion in incarcerating children for petty offenses without requiring the same standards of proof which the adult defendants are entitled. Consider the case of In Re Gault where the United States Supreme Court reversed the lower court ruling of conviction of a minor who allegedly made an obscene telephone call. The Supreme Court ruled that minors who are charged with offenses in juvenile court were also entitled to basic due process: notice of the charge, a right to counsel, and elements of the right to trial including confronting witnesses as opposed to trial by hearsay (In Re Gault).
In addition, denial of due process against juvenile offenders is a common occurrence. In a 1993 survey conducted by the American Bar Association Juvenile Justice Center, they found that there are frequent incidents of questionable "waiver" of counsel; crushingly high defender caseloads; missed opportunities to interview, investigate and intervene when services might have helped a child (Patricia Allard and Malcolm Young, 2002, p4)
The lack of funding and adequate number of personnel add burden to the effective implementation of the principle and policy behind the juvenile justice system. These are serious obstacles that affect the efficiency of the programs for rehabilitation and treatment of juvenile offenders.
In addition, the main principles behind the juvenile justice system are being questioned. The opponents of the juvenile justice system argue that they are not effective in controlling crime. This is manifested by the fact that research has shown that murder by juveniles remained at a relatively constant level for the decade before 1985, but it underwent a large and disturbing annual increase. In view of the failure of the juvenile justice system to control criminal behavior among juveniles, there are proposals coming from other sectors of the society to shift the legislative policy from rehabilitation of juvenile offender to punishment.
Facing a dilemma - should the state concentrate its efforts on preventing crime or should it focus on rehabilitating offenders - the state has to choose between two options: Should the state use its resources to build more juvenile penitentiaries and incarcerate youthful offenders every time they violate the law as a means of punishment or should the state use its fund to help in parenting, recreational and mentoring programs that are geared towards the rehabilitation of the youth that are geared towards the rehabilitation of the youth.
Case of In re Gault, 387 US 1 (1967)
One of the main issues surrounding the juvenile justice system is that it is gradually integrating itself with the criminal justice system for the adults. In principle, the juvenile justice system is supposed to be procedurally different from the criminal justice system for adults. The intention was that the juvenile justice system was supposed to be akin to a civil proceeding as distinguished from criminal trials. Since it is a civil proceeding the juvenile offenders were not afforded due process rights, a right which is guaranteed and protected for adults facing criminal trials. Juvenile offenders were also not entitled to the right to trial by jury and the freedom against self-incrimination.
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In view, however, of the decision in the case of In Re Gault substantial change in the procedural principle in the juvenile justice system took effect. In the 1967 case of Gerald Francis Gault, he was placed in detention after he made an obscene call to a neighbor while under probation. The Supreme Court made a ruling that minors could not be incarcerated for committing petty offenses without requiring the same standards of proof which the defendants are entitled. Thus, the Supreme Court declared that juvenile offenders are likewise entitled to due process of law and directed the juvenile courts to grant the juvenile offenders the following rights: a) the right to receive notice of charges; b) the right to obtain legal counsel; c) the right to confrontation and cross-examination; d) the privilege against self-incrimination; e) the right to receive a transcript of the proceedings, and f) the right to appellate review. In this case however, Justice Potter Steward wrote his dissenting opinion against the imposition of formal trials in juvenile courts. He expressed concern that the juvenile court proceeding is being converted into an adult criminal court. He emphasized that the purpose of juvenile justice system is to rehabilitate not to punish these youthful offenders thus the grant of the said rights does not serve the purpose and intent of the juvenile justice system.
Juvenile Transfer to Adult Courts
In addition to the decision in the case of In Re Gault, several legislative measures have been passed which required the transfer of jurisdiction of juveniles to adult courts. The most serious repercussions of these laws are that slowly the society is trying to once again make the juvenile offenders under the jurisdiction of the criminal justice system. It is as if the courts and the legislators are trying to slowly trying to reduce the powers of juvenile courts so that the juvenile offender and the adult offenders will once again be governed by the same principles. These laws are a) prosecutorial discretion; b) statutory exclusion; c) lowered age limits; d) “once an adult always an adult” policy; e) judicial waiver.
Prosecutorial discretion is otherwise known as the direct file transfer since the prosecutors are given the complete authority to determine whether to file a case against a juvenile offender in juvenile courts or directly in criminal courts. One of the criteria used in filing cases in criminal courts is the gravity of the crime. This means that for a crime of murder committed by a minor it is possible that a prosecutor may choose to file a case in criminal courts. Another measure used to transfer jurisdiction is statutory exclusion. Some states automatically grant jurisdiction to criminal courts on offenses committed by juvenile offenders depending on either the age or the nature of the offense charged. In some states, the age limits are lowered so that regardless of the nature of the crime committed, the offender is tried as an adult. Thus, the adult courts are automatically granted the authority to hear cases involving juvenile offenders if they have reached a certain age limit. Thee are some states which adopt the “once an adult, always an adult” policy which treats a juvenile offender who has previously prosecuted as an adult in criminal courts as an adult for all subsequent cases. In judicial waiver, the state or the prosecution files a motion before the juvenile court to transfer jurisdiction from juvenile courts to criminal court. It is the judge who determines whether the transfer should be effected based on the judge’s sole discretion, or because certain well-defined criteria has been met or upon a probable cause determination for an offense for which the state has deemed that the waiver is appropriate.
There are many apprehensions about the increasing number of juvenile offenders being prosecuted as an adult in criminal courts and being placed in the same confinement as adults Among the arguments raised are that it fails to address the special needs of the minors who at that tender age needs the protection and help of the society. Also, it argued that transferring jurisdiction to criminal courts does not equip the minors of any learning necessary to reenter the communities. Another argument is that the transfer fails to take into account the notion that violence is a learned behavior. It must be stressed that most of the time these juvenile offenders were also victims of abuse or neglect.
The creation of the juvenile justice system in the 19th Century was a significant move towards social reform. The reformers in the past have learned from the mistakes of the law makers and the judges before them. It was indeed a sound judgment to create a separate court for juvenile offenders. Yet, several centuries after the juvenile justice system was created it would seem that the courts and legislators are once again committing the mistake of the people before the 19th Century. The laws providing for juvenile transfers to adult courts and the decision of the Supreme Court in In re Gault attest that society no longer believes in juvenile courts and would rather let adult courts handle juvenile offenders. I disagree with this. Juvenile offenders should be governed by a different justice system. The criminal courts already have their hands full in handling adult offenders. If jurisdiction over the juvenile offenders will be transferred to them a significant burden will be imposed upon criminal courts. Under criminal courts, the principle behind the creation of juvenile justice system will be put to waste.
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There is a common understanding that children are incapable of lying. Instinctively, they will tell the truth. For this reason, it is natural for a person to consider and think that a child can be a good witness to a crime. Most especially when the child himself or herself is a victim of the crime, for instance child abuse cases, there is greater reason to get the child to testify in court against the perpetrator of the crime.
The Federal Rules of Evidence does not require that a witness to a crime must be of a specific age or must have reached a particular level of mental discretion. Rule 601 of the Federal Rules of Evidence is clear on this: “Rule 601 every person is competent to be a witness except as otherwise provided in these rules.” The minimum requirement for the testimony of a witness to be admitted in court is that the witness must be capable of perceiving and capable of making known his perceptions to others. So long as the child can perceive by means of all his senses that facts to which he is testifying and so long as he can relate to others what he has perceived, then he is qualified to become a witness. It is because of these reasons that a child may be qualified to become a witness. It is also the same reasons why children can be credible witnesses as well. (“Just How Credible Is a Child Eyewitness,” 1)
In reality, however, getting a child to serve as a witness in any crime poses certain difficulties for an investigator. The situation even becomes more difficult if it is the child-witness who was the victim of a sexual abuse and that he is being asked about the crime committed against him. Thus, while the testimony itself may be credible but the source of the testimony may be not.
There are certain issues that may affect the child’s testimony. These issues may pertain either to a) the time when the child perceives the event to which he testifies to and b) the time when the child relates what he has perceived at the court. Each of these issues present difficulties for an investigator that may derail him from arriving at the truth.
One of the issues is perception. In view of the child’s limited knowledge and understanding of the severity of the situation, it is possible that the child may make the decision to purposely omit certain details about the incident or even deny that such an incident did in fact happen. It is also possible that because the child lacks awareness of what acts are considered social taboos or what acts are considered social unacceptable and appalling. It is possible that the child may not even remember what happened because he does not find anything extraordinary about the sexual abuse. (Leander et al 6) According to Goodman-Brown et al, young children do not necessarily experience the same level of shame as do other children because they do not have the same awareness of the taboo surrounding sexual abuse or of society’s opinion that child sexual abuse is unacceptable.
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Moreover, even if it happens that the child is of sufficient age and discretion to be able to know what sexual abuse is and that sexual abuse need to be reported to the law enforcement officers, the investigator may still have difficulty extracting the details of the alleged sexual abuse from the child. While the child may want to tell the truth about the incident that happened to him, it is possible that because of the difficulty in relating the event to the police investigator. One of the difficulties is in the aspect of influence. When there is a considerable lapse of time since the occurrence of the sexual abuse, the parents, guardians or other persons of authority ma have exerted undue influence upon the child so that when the child relates the event it may no longer accurate. This concern is supported by psychological research. Psychologists say that the younger the child is the more he is susceptible to the suggestive statements of the people around him. (Debra Ann Poole and D. Stephen Lindsay, 2001, p. 24) The influence is so powerful that the child can no longer distinguish in his memory what he ha actually seen and what his parents have suggested to him.
Another difficulty in investigating child abuse cases is that the possibility of the child’s memory being altered need not necessarily come from third persons. It is most likely that the child himself may have contributed to the alteration or distortion of his original memory. Research shows that getting a verbal description from the child of the perpetrator of the crime interferes with his recollection of the actual perpetrator of the crime. Psychologists call the phenomenon where the verbal memory overshadows the visual memory verbal overshadowing. (Amina Memon and Rachel Rose p. 1) Psychologists say that when the child attempts to make a verbal description of the perpetrator of the crime, this act itself may distort his original memory. When the child has described the criminal in a particular way most of the time he is unwilling to reconsider the possibility that he may have given a wrong identification of the perpetrator. Thus, the act of telling a story adds to the distortion, which in turn affects the underlying memory of the event.
The situation is also difficult even if the person responsible for the child abuse is someone whom the child is familiar with. While it is a proven fact that children remember stressful events well, it is still possible that the child may purposely omit materials facts about the child abuse when the child has been abused by a family member or a family friend. (Leander et al 6) According to researchers, loyalty to a family member may be a motivating factor when a child purposely fails to report a sexual abuse or when a child omits material facts about the sexual abuse committed against him. Fear of negative consequences may also be considered another reason that may present difficulty on the part of the investigator. For instance, the perpetrator may threaten the child that should he report the incident to the police, he or any member of his family may be harmed.
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The Bureau of Labor Studies stated that the final count on fatal work injuries in the United States was 5,214 (“Revisions to the 2008 Census of Fatal Occupational Injuries (CFOI) counts”, p.1). This represents the lowest annual total of work injuries since 1992. The significant reduction on fatal work injuries is the result of the efforts on the part of the various government agencies and even the companies themselves to reduce workplace injuries or accidents. It must be stressed that the companies themselves do not want any work-related injuries or accidents to take place. Some of the reasons for the same is that it affects the productivity of the employees, delays the completion of the project or the activity, exposes the company to suits and affects the reputation of the company.
In addition, the reduction in the work-related accidents and injuries is the result of the strict laws that require the employers to ensure that the general welfare of the employees is protected and that every man and woman enjoys a safety and healthful working condition in the workplace.
The Occupational Safety and Health Act of 1970 is one of the laws that helped reduce the work-related injuries and accidents in the workplace. The law requires the employees to ensure that the employers maintain a safety and health work environment for the employees. It also empowers the Secretary of Labor to conduct an investigation to determine whether the condition in the workplace exposes the workers and the employees to possible injuries and accidents. The Secretary, after the investigation, may issue a citation to the employer if it believes that the employer violated a standard or rule under the Occupational Safety and Health Act of 1970. The citation shall be in writing and shall describe the nature of the violation of the employer to afford the employer the opportunity to dispute the findings of the investigator.
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Upon investigation, the Secretary of Labor is empowered to issue such orders as may be necessary to avoid, correct or remove the cause of the imminent danger to the employees. The Secretary is empowered to notify the employer of his failure to ensure a safe working environment. If the employer fails or refuses to correct the assessment, the Secretary is empowered to impose penalty against the employer.
The Secretary is empowered to assess civil penalty against the employer who is found to have violated the requirements of the Occupational Safety and Health Act of 1970. The Secretary may assess a civil penalty of not more than $70,000 for each violation but less than $5,000 for each willful violation.
It may also file an action in the court to ensure that the proper steps are taken for the protection of the employees. If the court finds that the workplace exposes the employees to accidents and injuries it may issue a temporary restraining order or an injunction so that the employers may be prevented from continuing the conduct of the work unless the employees are fully protected.
Should the employees perceive that the Secretary of Labor is remiss in its obligation in filing a suit in the appropriate court so that a mandamus may be issued and the Secretary may be required to file an action in the appropriate court for the protection of the rights of the employees.
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Community Policing is a law enforcement philosophy which serves as an effective solution to the rising crime rate. It is often considered as a deviation from the traditional methods of crime fighting where the law enforcement officers take the initiative to get down from their pedestal and become an important member of the community. It is defined by the US Justice Department's Community Oriented Policing Services (COPS) as “any policing aimed more at crime prevention than on chasing and catching bad guys; those tactics can include working with the community, decentralizing command, or simply increasing the number of beat police officers in a community.” (Policing)
Strategies to Implemented the Community Oriented Policing
Implementing Community-Oriented Policing, however, is not an easy task. It requires several different factors to be in place first before the Community-Oriented Policing may be implemented as a part of the strategic goals of the police department. Since it changes the overall-philosophy and even the organizational structure of the police department it is essential that the every member of the police department from the patrol officer to the chief of police should be sold to the idea of a change in the police department. It must be stressed that change is not easy to deal with especially on the part of the police officers who may have been performing the same kind of tasks for decades.
Resistance to change is something that the consultant will have to incorporate in his strategy. However, the only way to fight the resistance among members of the police department is to display the right leadership. Change will not start from the bottom of the organizational structure. Change will start from the local chief executive who should be able to convince every member of the police department that the Community-Oriented Policing will work for the best of every member of the organization and even the public that they are serving.
Moreover, resistance may also come from the local communities whom the police are serving. Lack of trust, indifference and apathy had always been used to describe the relationship between the people and the police (“Community Oriented Policing: Jersey Village Police”, p.1). This is mainly because of the failure of the police organization to put a stop to crime or to involvement of some erring police officers in crime. It will take some time before the police organization may be able to re-establish trust and create a meaningful relationship with the public. However, once this trust is re-established, it will create a strong foundation that will help make the community-oriented policing more effective.
The Pontiac Police Department has started to realize the benefits of active community involvement in the Community Oriented Policing in terms of modifying the conditions within the community that encourages criminal behavior. It enhances the opportunity by which the community is able to fight crime or reduce the opportunity for crime to take place.
The consultant will also have to find a way so that every member of the police department will be committed to the new approach. It must be stressed that community-oriented policing is not just one program of the police department. Rather, the community-oriented policing requires a change in the attitude and mind-set among the police officers.
It is also a reality that some of the local police force does not have the sufficient number of personnel, equipment and fund necessary to effectively implement the community-oriented policing. Porterville Police Department is one such police department which has one of the smallest units in Tulare County, California. For this reason, it is essential for the local chief of police to be able to sell the community-oriented policing to the mayor and the legislative representatives. It is therefore very essential that the local chief of police to be able to seek assistance from individuals who have the power to grant them the needed funding. When the local chief of police has convinced these individuals then mobilization of resources will be a lot easier for the members of the police force. For instance, mobilization of resource is essential also for training the members of the local police, the acquisition of technologies that can be use for crime prevention, and the establishment of programs to improve relationship between the community and the police (“Community Oriented Policing Services: Background, Legislation and Issues”, 2008, p.2).
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Non-government agencies and organizations can also serve as a vital component in the Community-Oriented Policing. These agencies and organizations do not only have the manpower but they also have an existing organization that can help the police department to disseminate various information. Moreover, since the members of the police force are more focused on problem solving the public start to call the police even for non-police related events (“Community-Oriented Policing,” p.1). For instance, fire emergencies are better handled by the members of the fire personnel.
The first step in the implementation of a Community-Oriented Policing is to make a plan of how the Community-Oriented Policing will be implemented. One of the components of the Planning is the identification of tasks and the timelines which the members of the police department will need to meet. Planning also involves making an analysis of the Porterville Police Department to determine the extent of change that will have to be made. Current operational procedures and management practices of the chief of police will have to be studied to determine whether the police department already embraces the concept of community-oriented policing. It must be stressed that if the organization is ripe for change then introducing the Community Oriented Policing will be a lot easier. If, however, the organization is still not ripe for change then the members of the local police force may have difficult time adjusting to the new concept.
Currently, though the concept of Community-Oriented Policing is new among the members of the Porterville Police Department, partnerships with the community in crime solving is already common. In fact, the police department has already enlisted the participation of several individuals in the community to help them address the problem of crime.
The second step is to ensure that the communication lines are open from top to bottom. The chief of police should ensure that he is able to effectively communicate to all the police officers what the community-oriented policing is all bout. It must be stressed that until now many think that community policing is about police officers engaged on foot patrol most of the time. Until now they do not appreciate that community policing is much more than going on foot patrol. Rather, the local chief of police must be able to explain what it is about and what their new role would be under this system. Communication is an important part of the implementation since it is only through regular communication that the members of the police department are able to fully understand and appreciate the concept. It is also one strategy to decrease resistance and opposition from those who are not convinced about its benefits.
The third step is the constant monitoring of the manner the community-oriented policing is being implemented. Feedback gathering from both inside and outside the police department is indispensable. Adjustments will have to be made along the way to make sure that the changes being implemented by the local chief of police is taking place. If the members of the police department feels that it is not being properly implemented that the whole system should be reviewed. The same is true for the community which the police department is serving. If the community feels that the new system is not working then efforts should be made so that changes will be made.
The introduction of Community-Oriented Policing may not be easy. However, its benefits suffice to override the difficulties that the Porterville Police Department may encounter. It does not only help in the crime prevention efforts of the local police department but it also helps in bringing the police closer to the people whom it serves. It also maximizes the meager resources that are available to the police.
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