Showing posts with label Social Work. Show all posts
Showing posts with label Social Work. Show all posts

Friday 29 April 2011

Convention on the Rights of the Child

Convention on the Rights of the Child


Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989
Entry into force 2 September 1990, in accordance with article 49
Preamble

The States Parties to the present Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,

Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth",

Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration,

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries,

Have agreed as follows:
PART I
Article 1
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 4
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.
Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 13

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.
Article 17

States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(c) Encourage the production and dissemination of children's books;

(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.
Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.
Article 21

States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;

(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
Article 22

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.
Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development

4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
Article 25

States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.
Article 26

1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.
Article 27

1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.
Article 28

1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

(c) Make higher education accessible to all on the basis of capacity by every appropriate means;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.
Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
Article 31

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.
Article 32

1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
Article 33

States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials.
Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
Article 36

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.
Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
Article 38

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
Article 39

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Article 41

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.
PART II
Article 42

States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.
Article 43

1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.

2. The Committee shall consist of eighteen experts of high moral standing and recognized competence in the field covered by this Convention.1/ The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.

3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.

5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.

7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.

8. The Committee shall establish its own rules of procedure.

9. The Committee shall elect its officers for a period of two years.

10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.

11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.
Article 44

1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights

(a) Within two years of the entry into force of the Convention for the State Party concerned;

(b) Thereafter every five years.

2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.

3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.

4. The Committee may request from States Parties further information relevant to the implementation of the Convention.

5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.

6. States Parties shall make their reports widely available to the public in their own countries.
Article 45

In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;

(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;

(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.
PART III
Article 46

The present Convention shall be open for signature by all States.
Article 47

The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 48

The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 49

1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.
Article 50

1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval.

2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties.

3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.
Article 51

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General
Article 52

A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.
Article 53

The Secretary-General of the United Nations is designated as the depositary of the present Convention.
Article 54

The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.

_________

1/ The General Assembly, in its resolution 50/155 of 21 December 1995 , approved the amendment to article 43, paragraph 2, of the Convention on the Rights of the Child, replacing the word “ten” with the word “eighteen”. The amendment entered into force on 18 November 2002 when it had been accepted by a two-thirds majority of the States parties (128 out of 191).

Saturday 12 March 2011

Book Review

Book Review


Reamer, Frederic G. (2006). Ethical Standards in Social Work: A Review of the NASW Code of Ethics, 2nd Edition. Washington, DC: NASW $40.95


Reviewed by Stephen M. Marson, Ph.D.





Within the context of social work values and ethics, Frederic Reamer has become a household word. For example, during six years of committee meetings, we often discussed ethical dilemmas. Often a committee member began the discussion by saying, “Well, Reamer’s says….” With that in mind, I wanted to quantify Reamer’s influence on the study of social work values and ethic. Since its inception, The Journal of Social Work Values and Ethics has published 24 refereed articles (this count excludes books reviews, forum articles, editorials, and letters to the editor). Of these, Reamer is cited within 13 articles and not cited within 7. Of the articles that do mention him, Reamer is cited 77 times. He is cited more times than any other single author. Thus, we can conclude that Frederic Reamer is the ideal person for the National Association of Social Workers (NASW) to select as the author of Ethical Standards in Social Work: A Review of the NASW Code of Ethics.

Ethical Standards in Social Work: A Review of the NASW Code of Ethics reviewed herein is the second edition. The first edition was published in 1998. After the NASW Delegate Assembly approved major changes within the Code, NASW asked Reamer to compose a volume that would address the major revisions. It was apparent that the 1996 revisions of the standards were more complex than the previous standards. In addition, practice in the social work environment was becoming more and more litigious. What is the need for a second edition?
There are three primary reasons for the second edition. First, in 1999, the NASW Delegate Assembly made a modest but critical revision. Standard 1.07c was changed. The following phrase was deleted: “when laws or regulations require disclosure without a client’s consent.” According to Reamer, this change has brought forth a great deal of confusion regarding disclosure of information affecting undocumented workers. The second edition addresses the concerns of practicing social workers regarding Standard 1.07c.



Second, litigiousness has increased since the first edition. I doubt that the increase in lawsuits is a reflection of increasingly bad social work practice, but rather a change within our social structure.

Third, in Reamer’s own words (page x):
This edition updates the literature and examines a number of emerging issues in more depth (for example, boundary issues, social workers’ use of computer technology, and involvement in end-of-life decisions). It also includes a new appendix that provides readers with an opportunity to apply the Code of Ethics to case scenarios.



The second edition includes most of the passages found in the first edition. One way to assess changes in the second edition is to scrutinize the citations. The first edition includes 280 citations, while the second edition cites 286. Reamer deleted 23 citations and added 29 in the second edition. A few of the citations were meant to update information from the first edition, but most of them include new information that was not addressed or unavailable for the first edition.
The book is like a roadmap for clarifying the standards so often misinterpreted. For example, I heard a social worker note that the Code states that practitioners should never accept gifts from clients. This is not what the Code says, but a cursory reading of the Code could easily be interpreted in this manner. Reamer’s major contribution is his clarity. He demonstrates that professionals need to understand the Code for the betterment of their clients and as a standard to avoid a malpractice suit.


I can identify only two ethical issues that lack clarity within this book. The first is Reamer’s discussion of Tarasoff v. Board of Regents of the University of California. Simply stated, this California decision mandates that a clinician must breech confidentiality if a client threatens to kill another person. In particular, the California court demanded that the clinician must warn the potential victim – not merely the police. Some social work textbooks treat Tarasoff as universal. It is not. Some state supreme courts and state legislators actually prohibit the clinician from warning the potential victim. Reamer’s explanation of this is weak. All social workers must check their local jurisdiction for determining their legal responsibility. As a side issue, research demonstrates that warning the potential victim does not have the intended effect. [1] My second concern relates to the ethics of computers and electronic media utilization. Most of the issues addressed within this volume are well cited, but not computers and electronic media. Even though a number of publications address the ethics of technology and social work practice, Reamer did not cite as he does in other ethical issues in this volume. With the rapid growth of clinical practice on the Internet, one would expect more. For example, the simple art of password selection and password change has ethical implications for social work practice. These issues are absent.


Even with the two weaknesses, I strongly recommend the second edition of Ethical Standards in Social Work: A Review of the NASW Code of Ethics be adopted at every academic library that has holdings for accredited BSW and MSW/Ph.D. programs. Faculty members need to read this volume and to require their students to do the same. Every social work practitioner should read it and have it available on the shelf in times of ethical conflicts.



[1]See: Furlong, A. (2003). The why of sharing and not the what: Confidentiality and analytic purpose. In C. Levin, A Furlong and M. K. O’Neil (Eds.), Confidentiality: Ethical Perspectives and Clinical Dilemmas. (pp. 40-49). Hillsdale, NJ: Analytic Press.

Sexual Harassment or Consensual Sexual Relations? Implications for Social Work Education

Sexual Harassment or Consensual Sexual Relations? Implications for Social Work Education
Jill S. Levenson, Ph.D., LCSW
Lynn University

Journal of Social Work Values and Ethics, Volume 3, Number 2 (2006)

Copyright © 2006, White Hat Communications
This text may be freely shared among individuals, but it may not be republished in any medium without express written consent from the authors and advance notification of White Hat Communications.

Key words: Sexual harassment, boundaries, social work educator, teacher, consensual sexual relations, higher education

Abstract

Although there is consensus regarding the most egregious forms of sexual harassment in academia, the acceptability of consensual relationships between professors and students remains a subject of some debate. The issue may have special significance for social work educators, who are charged with modeling and inspiring awareness of oppression and exploitation. It is argued here that sexual relationships between students and professors represent a dual relationship, and cannot be truly consensual because of the inherent power disparities that exist. Implications for schools of social work are offered.

1. Introduction

Sexual harassment emerged as a social issue during the 1970s as the women’s movement and the sexual revolution gradually altered society’s perception of the genders (Dziech & Hawkins, 1998). Evolving in the U.S. employment arena under Title VII of the 1964 Civil Rights Act, definitions of sexual harassment in the workplace have been clarified and refined over the past quarter century, as courts across the nation have ruled on the issue. Sexual harassment gained worldwide media attention in 1992 when, during Clarence Thomas' U.S. Supreme Court confirmation hearings, Anita Hill accused him of sexual harassment.

Sexual harassment is defined by the United States Equal Employment Opportunity Commission (EEOC) as unwelcome sexual advances, requests for sexual favors, and/or other verbal or physical conduct of a sexual nature. These behaviors usually fall into one of two categories that are recognized as a result of landmark legal decisions. Quid pro quo harassment is described as sexual behavior that is exchanged for a promised benefit or avoidance of punishment (Landis-Schiff, 1996). Hostile environment harassment refers to sexual conduct that creates an intimidating or uncomfortable atmosphere (Landis-Schiff, 1996).


The publication of The Lecherous Professor: Sexual Harassment on Campus (Dziech & Weiner, 1984) provoked heightened awareness of sexual harassment in academia when the authors reported that 30 percent of undergraduate women revealed they had experienced sexual harassment from at least one of their instructors during four years of college. Feminist author Michele Paludi’s book Ivory Power (Paludi, 1990) drew further attention to the problem of sexual harassment in academic settings as she explored the dynamics of power in relationships between students and professors. Studies have revealed that 60% of female graduate students reported at least one incident of sexual harassment (Schneider, 1987), and that most perpetrators are male and most victims are female (Singer, 1994; Strauss, 1992).


These statistics may underrepresent the scope of the problem. Less than five percent of academic sexual harassment incidents are estimated to be formally reported (Fitzgerald, Shullman, Bailey, Richards, Swecker, Gold, Ormerod, & Weitzman, 1988). The reasons for this lack of reporting are varied and include fear of not being believed, fear of retaliation, lack of knowledge of reporting procedures, and feelings of embarrassment or shame (Rubin, Borgers, & Tollefson, 1996). Women are more likely to report harassment than men, and the likelihood of reporting decreases with the lesser severity of the incident (Rubin et al., 1996).

In the 21st century, most academicians acknowledge the existence of sexual harassment, and increasing numbers of reported incidents have led to University policies and procedures to address the pervasiveness of the problem and its effects (Dziech & Hawkins, 1998). While there is agreement on the most egregious cases, definitional ambiguity continues to exist. For example, quid pro quo sexual harassment -- threatening or bribing a student in exchange for sexual favors – is widely accepted as improper (Dziech & Hawkins, 1998). Hostile environment(Sandler & Shoop, 1997). Even less clear is whether “consensual” relationships between students and teachers constitute harassment.

Some guidance is offered in various ethical standards and guidelines although complete clarity on the issue remains elusive. The National Association of Social Workers (NASW) Code of Ethics (NASW, 1996) specifically includes a provision that social work educators should not engage in dual relationships with students that create a risk of exploitation or potential harm. Furthermore, Section 2.08 of the Code states: “social workers should not sexually harass supervisees, students, trainees, or colleagues. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The NASW Code of Ethics does not state that the sexual behavior must be non-consensual or uninvited, and in fact seems to imply by that omission that any and all sexual behavior between supervisees, students, trainees, or colleagues is unethical. However, it will be assumed, for the purpose of this paper, that the Code intended to include those unwelcome or exploitative sexual behaviors consistent with the EEOC description of sexual harassment, and to exclude consensual sexual relationships between colleagues of equal status. The Council on Social Work Education (CSWE) more explicitly describes sexual harassment as any sexual conduct between students and teachers that involves a power differential, including either consensual or forced sexual contact (Schank, 1994).

Other mental health professions also publish professional ethical standards offering guidelines about maintaining appropriate boundaries and the mixing of multiple relationships (American Association for Marriage and Family Therapy, 1998; American Counseling Association, 1996; American Psychological Association, 1995). Evans and Hearn (1997) constructed a matrix of dual relationships assessing the ethics of a wide range of potential additional relationships (e.g., social, sexual, business) that could affect the primary professional roles of therapist, instructor, supervisor, and researcher. They suggested that a sexual liaison with a student while in the primary professional role of instructor was indeed a dual relationship, though they did not explicitly label this type of behavior as harassment (Evans & Hearn, 1997).

Little has been written about sexual harassment in social work education, but the problem has been identified as one worthy of consideration (Congress, 1996;2001). Social workers strive to empower others, to promote social justice, and to protect vulnerable individuals from discrimination and oppression (National Association of Social Workers, 1996). Although the NASW code of ethics refers primarily to work with clients, it also describes more broadly our ethical responsibilities as professionals, and, specifically, as social work educators.

It is perhaps the issue of consent that is the salient feature in this debate. It will be suggested here that sexual relationships between students and professors cannot be truly consensual because of the dual relationship that exists and its inherent power imbalance. The debate may have special significance for social work educators, who are charged with modeling and inspiring awareness of oppression and exploitation.

2. Social, Cultural, and Political Context
Feminist scholars (Brownmiller, 1975; Dworkin, 1974; Russell, 1984) have long theorized that various types of sexual aggression exist in the context of a patriarchal society in which male domination and female submission are continuously reinforced. Socially, economically, and politically, it is argued, females lack power relative to males. This power disparity creates a vicious cycle in which males continue to be socialized in gender-specific traits such as strength, aggressiveness and independence, and females are taught passivity, patience, and dependence (Lips, 1981). Likewise, organizational models suggest that women, in general, have less status, power, and income than men (LeMoncheck, 1997). Indeed, although 79 percent of the social work profession is made up of females (National Association of Social Workers, 2002), male social workers hold a disproportionate number of managerial and administrative positions and earn more money than female social workers (Gibelman & Schervish, 1993). As well, in academic settings, a larger percentage of males hold higher rank positions than do females (Council on Social Work Education, 2000).



Some feminist theorists argue that economic forces make heterosexual relationships compulsory for women, because women have less earning power than men and therefore depend on men for financial support (LeMoncheck, 1997). From prostitution to marriage, consent to sex is not truly given freely by women, some feminists maintain, but as payment in exchange for their survival. These radical feminists suggest that sexual relationships that begin in the workplace are inherently involuntary and unequal because men have more power, income, and status (LeMoncheck, 1997). Students cannot consent to sex with professors for these same reasons, it has been argued, and student-teacher sex is another example of sexual exploitation.

An opposing feminist viewpoint contends that women should be able to enjoy sexual freedom as do men, and that restrictions on sexual expression are another form of oppressive and discriminatory practices (Chancer, 1998). Gallop (1999) asserted that to deny a female student the right to consent to sex is harassment in and of itself. She analogized sexual harassment to policies prohibiting consensual sexual relations: “Common to both,” Gallop wrote, “is the assumption that women do not know what we want, that someone else, in a position of greater knowledge and power, knows better” (p. 392).

Some feminist scholars theorize that sexual harassment in academia is part of a larger and more general misogyny (Paludi & Barickman, 1998). Sexual harassment of male students by female teachers appears to be relatively rare (Sandler & Shoop, 1997), although Gallop (1999) wrote vociferously about her numerous seductions of male students. Research studying the impact of sexual harassment on students has seemed to focus on females (Paludi & Barickman, 1998). Whereas 15% of men have been found to have experienced harassment in the workplace, that figure cannot be generalized to academic settings because there is limited research on male students and faculty (Dziech & Hawkins, 1998). The consequences of sexual harassment for male victims are often overlooked, say Dziech and Hawkins (1998), because of the prevailing belief that men respond favorably to being propositioned by women. This thinking has also been common in society’s reaction to male victims of sexual abuse by women – young girls get abused, young boys get lucky. In reality, some researchers on child sexual abuse have suggested, boys are less likely to report molestation due to distorted perceptions of their role in their own victimization (Hunter, 1990). Perhaps the same is true when male students are harassed by teachers. The acknowledgement of harassment of males by females notwithstanding, the problem of sexual exploitation of women by men does seem to be more widespread, and represents a pervasive power disparity in our society. This vulnerability of female students may be especially important in social work programs, where 80% of MSW students are female (Congress, 1996).


As well, the U.S. Supreme Court has ruled that same-sex harassment is a form of discrimination that is protected under the Civil Rights Act ("Oncale v. Sundowner Offshore Services, Inc.," 1998). Students may be particularly reluctant to report same-sex harassment, however, because of fears of labeling or discrimination (Fineran, 2002).

From a macro point of view, sexual harassment affects not only individuals, but also the atmosphere and climate of an organization (Nicks, 1996). In a study of 56 faculty members at Oglethorpe University who were surveyed about their concerns about being accused of sexual harassment, 68% indicated some concern about being falsely accused, and 45% reported that they had changed their behavior because of that concern (Nicks, 1996). Male faculty members were more likely to be concerned and to have changed their behavior toward students.

Feminist theories describe how disparities in power between men and women have historically contributed to the sexual exploitation of women. Similarly, power differentials exist between social workers and clients, as well as between professors and students. It may be that this power disparity renders such sexual relationships intrinsically nonconsensual and potentially exploitative.


3. Consent


Unwanted or forced sexual activity clearly exemplifies a context in which consent is not given, and would presumably be agreed upon as unacceptable by virtually all educators. Unlike sexual assault, however, sexual harassment implies a lack of consent which is murkier and more insidious. In fact, sexual abuse does not always occur in the absence of verbal consent (Freeman-Longo & Blanchard, 1998), but rather often represents a much more subtle form of coercion. Freeman-Longo (1998) distinguished consent from compliance, suggesting that one may submit to sexual activity for a multitude of psychological reasons, including as a desire to please, or to feel attractive, special and important. Thus, it becomes crucial to explore the meaning of consent, the capacity to consent, and the effect of a power differential on the legitimacy of the consent.



3.1 The meaning of consent


According to Merriam-Webster’s dictionary, consent means “to give assent or approval; to agree.” While this definition seems unambiguous, it may be more complex than it seems at first glance. In the case of child sexual abuse, for instance, it is commonly agreed that children cannot consent to sex with an adult (even when they agree to have sex), because they do not fully understand what is it they are consenting to (Finkelhor, 1984). Similarly, Freeman-Longo and Blanchard (1998) suggested that consent to sex implies an understanding of intimate relationships and their emotional impact, as well as knowledge of the possible range of positive and negative consequences that might result from engaging in sexual behavior. To consent, one must have true freedom to agree or decline, and the consent must not have been manipulated (Finkelhor, 1984).


Informed consent is discussed in NASW’s Code of Ethics as including, among other things, a discussion of purposes, risks, limits, reasonable alternatives, the right to refuse or withdraw consent, the time frame covered by the consent, and an opportunity to ask questions (National Association of Social Workers, 1996). While this section of the Code refers to work with clients, informed consent can also apply to formal or informal contracts with students. The purpose of informed consent in any context is to allow an individual to make an intelligent, informed choice after considering possible outcomes and alternative options (Parsons, 2001).


Thus, informed consent to a sexual relationship between student and teacher implies that the professor (being the professional and the more powerful partner) has explicitly informed the student of the purpose of the sexual relationship, the possible negative and positive outcomes of such a relationship, the limits of the relationship, the student’s right to refuse or withdraw agreement, the alternatives that exist, and the potential effects of the relationship on the student and others (e.g. classmates). The informed student has been given ample opportunity to explore the possible ramifications of entering into this sexual relationship and to weigh the pros and cons of the decision.

3.2 Capacity to consent

The capacity to give informed consent requires competence (Lowenberg & Dolgoff, 1992). Competence refers to one’s ability to make informed decisions in one’s own best interest (Parsons, 2001). Age is one measure of competence, and in general, the law does not recognize minors as competent to give consent or enter into contracts. More specifically, all states have laws prohibiting sexual contact with minors. Although most college students and graduate students are chronologically and legally defined as adults, a student’s adulthood does not by definition imply capacity to consent because of the power disparity between student and teacher (Paludi & Barickman, 1998). Age can, however, be an additional source of power differential when seduction of a young adult by a much older professor occurs.

Competence can also be impaired by emotional factors (Parsons, 2001). Students experiencing sexual attention by professors are clearly faced with the stress of coping with the potential array of threats or gains they envision as a consequence to their positive or negative response to the faculty member’s affection. This stress may interfere with the ability to make a sensible decision. On the other hand, the euphoria created by infatuation may also interfere with a student’s ability to make a sound decision.

3.3 Legitimacy of the consent

Legitimate consent is given freely, without manipulation or pressure (Finkelhor, 1984), and may be compared to the social work value of self-determination (National Association of Social Workers, 1996).

Self-determination refers to autonomy and emphasizes the client’s right to actively participate in decision making (Parsons, 2001). Despite the appearance of a student’s self-determination in consensual sexual relationships, however, Congress (1996) states, “often a veiled element of coercion exists, and the presence of knowledge and volition can be questionable” (p. 333).

It has been argued that relationships between teachers and social work students are always ultimately coercive (Congress, 1996). Stamler and Stone (1998) concurred that because faculty-student relationships are not between equals, they cannot be consensual, although students may perceive relationships with professors to be mutual and consensual. Glasser and Thorpe (1986) found, in their survey of psychology graduate students, that 51% of those who had engaged in sexual relations with a faculty member reported, in retrospect, seeing some degree of coercion in the relationship.

Students are fundamentally vulnerable to coercion as a result of their dependency on professors for grades, evaluations, recommendations, and support (Congress, 1996). Furthermore, the classroom is a hierarchy in which the teacher holds the power and there exists a culture of deference (Stewart, Bridgeland, & Duane, 1998). Because the teaching relationship is a helping relationship, it is unbalanced in both power and dependency, creating the potential for exploitation.

Students may feel powerless to resist sexual advances and assert the right to say no. Because the professor’s intentions may initially be unclear, the student may passively resist by attempting to ignore the seduction or, in some cases, blame oneself for unintentionally inviting or encouraging the advances (Paludi, 1990). Students may fear retaliation and go along with the seduction, and it has been found that the potential for retaliatory harassment increases when the relationship ends (Paludi & Barickman, 1998). In the majority of cases, students avoid confronting the professor or reporting the incident (Paludi & Barickman, 1998; Sandler & Shoop, 1997).

In general, the dynamics of these relationships call into question the legitimacy of consent. Can an individual who is dependent on another truly and freely decline to participate in some aspect of the relationship? Or, does the dependency, by definition, negate the ability to equally participate in relationship decisions? Does what appears to be consent therefore more closely resemble, in many cases, acquiescence? Sexual harassment rarely involves violence or overt force and professors may need not threaten or bribe students to attain compliance. The dynamics of most sexually exploitative encounters are much more insidious, and, in the case of the professor and student, the relationship, ironically, may be meeting important student needs for attention, validation, and acceptance. This grooming of the student by giving special attention, confirmation, and affirmation can easily manipulate the student into compliance and may create only a false illusion of consent.

Furthermore, because these relationships are often kept secret, they isolate the student and limit social support when the relationship ends (Stamler & Stone, 1998). Often, other faculty or students are aware of the sexual relationship but look the other way because of their perceptions that both parties are consensual adults. These secretive sexual relationships are sometimes analogous to incestuous molestation in which family members know about child sexual abuse but ignore it or refuse to intervene (Congress, 1996). The notion that some young women feel powerful because they have seduced their teachers (Gallop, 1999)(Stewart et al., 1998).

4. The other side of the consensual-relations debate

The relatively recent movement to include consensual relationships as part of the definition of academic sexual harassment has been met with some resistance (Paludi & Barickman, 1998). For example, a survey of deans of U.S. schools of social work reported that most social work deans did not feel that CSWE should play a role in managing sexual relationships between students and faculty (Singer, 1994). Perhaps the most vocal advocate of consensual relations between students and educators has been Jane Gallop, a feminist researcher and professor who was herself accused of sexual harassment. While she conceded that students and teachers are unequal in their power in the educational relationship, Gallop questioned whether it necessarily follows that the student is unable to consent to a sexual relationship (Gallop, 1999).
It is true that in some cases, students do welcome sexual attention and perceive themselves as consenting to an amorous relationship with a professor. Contrary to the stereotypical “lecherous professor,” a recent study (Marchen & DeSouza, 2000) seemed to support Gallop’s assertion that students are often the initiators in sexual relationships with faculty members. In their survey of 54 faculty members, Marchen and DeSouza (2000) found that about 53% reported experiencing sexual advances by students. Although female faculty reported more unwanted sexual attention than males and seemed to find these experiences more threatening or uncomfortable, both genders reported sexual overtures with about the same frequency.
Reflecting on her seduction of two of her own graduate school professors, Gallop (1999) suggested that their power over her was not by virtue of their institutional position, but of their knowledge and intellectual passion. She maintained that she initiated the sexual affairs to see them "as other men" (p. 393), and that far from disempowering her, the seduction allowed her to feel the power of her own sexuality. Gallop proposed that these experiences offer students opportunities to neutralize power imbalances, to be "bold and forceful," to feel "desirable," and to view the world as a place of "diverse possibility" (P. 396). Desire can increase a student's drive and energy, Gallop wrote, and she added that being an "object of desire" can make one feel "wanted, worthy, and lovable" (p. 396).
Gallop (1999) agreed that true sexual harassment creates an environment that is hostile to a student’s education. She countered, however, that consensual sex between teachers and students can be conducive to one’s education and create an atmosphere in which intense personal contact can enhance the desire to learn and excel. Sharing the passion of mutual intellectual exploration, the couple develops a depth of intimacy that ultimately is expressed in sexuality. The student becomes even more driven to impress the professor, Gallop (1997) argued, perhaps providing additional motivation and inspiring creativity and, ultimately, success.

Other critics of sexual harassment policies argued that universities have begun to take sexual behavior more seriously than they do other forms of professional misconduct, distorting both the prevalence and importance of the problem (Dilger, 1998). Roger Howe, a Yale professor (quoted in Dilger, 1998), suggested that in most sexual harassment cases, professors cross a “gray line” without understanding the seriousness or the implications, and that once it is brought to their attention, most will not repeat the behavior. Many professors accused of sexual misconduct in academic settings believe that they were denied due process and viewed as guilty until proven innocent (Dilger, 1998). As with most sex crimes, an “acquittal” does not undo the presumption of guilt, and allegations may continue to affect an academic career long into the future, regardless of the circumstances of the alleged incident or the investigative findings. Criminalizing love affairs, some say, inadvertently results in the victimization of those identified as perpetrators (Dilger, 1998).

Journalist Jeffrey Toobin (1998) discussed the costs of policing consensual sex between teachers and students. Of utmost concern, he suggested, is the application of rules of misconduct to what he calls a victimless crime. Other considerations include the fiscal costs of litigating consensual sexual relations cases, both in administrative hearings pertaining to the disciplinary action against the professor as well as in lawsuits that professors may initiate against the university that sanctions them. Moreover, the potential losses incurred by the university that suspends or fires a productive research professor may outweigh the risks of recidivism. Finally, the identity of the “victim” may be exposed by universities that take action against faculty members, causing more emotional distress than was caused by the sexual behavior itself (Toobin, 1998).

Gallop further argued that prohibitions against consensual relations between students and instructors are based in the puritanical philosophy of sex as inherently bad. The ban on consensual sexual relations is dehumanizing, Gallop (1999) suggested, because it limits and restricts individuals' interactions. Others concur that regulation of consensual personal relationships threatens our right to privacy and "reflect[s] the childish belief that there is a political solution, and a public policy, for every interpersonal problem" (Kaminer, 1995, p. 141). Dilger (1998) reported that many agree that consensual relations restrictions are draconian, because they apply to graduate students who are old enough to consent. The interference between two adults who are attracted to each other is seen as moralization about sexual behavior rather than as a genuine attempt to protect vulnerable individuals from conflicts of interest.

These arguments might be seen as consistent with the social work value of self-determination. As social workers, it could be argued, we empower clients (and students) to make informed choices, and institutions that eliminate choice through oppressive or inflexible policies infringe on the right to self-determination. Sandler and Paludi (1993) argued, however, that whenever one person, by virtue of the nature of the relationship, exerts power over another, the potential for abuse and exploitation is high, and therefore protections must exist. The disparity of power is what renders the relationship, by definition, non-consensual (Sandler & Paludi, 1993).


5. Sexual Relations Between Faculty and Students: A Dual Relationship

Whether or not we believe that students have the capacity to consent to sex with a teacher, it seems clear that romantic relationships between faculty and students create a conflict of interest and constitute a dual relationship. Dual relationships are described as those in which the professional has two or more overlapping roles (Parsons, 2001). Dual relationships lead to boundary confusion because roles become unclear, and any departure from accepted professional roles can become problematic (Parsons, 2001). The inappropriate sexualization of an otherwise non-sexual relationship violates the safety of the relationship by altering the boundaries and creating ambiguous expectations (Peterson, 1992). Boundary violations undermine the primary relationship and permit an abuse of power (Kagle & Giebelhausen, 1994). Furthermore, boundary violations create a situation in which the professional’s needs are being met at the other’s expense (Peterson, 1992).

Perhaps nowhere in academia are the issues of dual relationships more salient than in social work education. Teachers influence students with their behaviors as well as their instruction (Congress, 1996) as they model empowerment, self-determination, advocacy, and other social work concepts referred to throughout the NASW Code of Ethics. The Code of Ethics (National Association of Social Workers, 1996) charges that professional social work educators should “…not engage in any dual or multiple relationships with students in which there is a risk of exploitation or potential harm to the student … [and] are responsible for setting clear, appropriate and culturally sensitive boundaries” (section 3.02). Congress (1996) noted that it is always the responsibility of the professional to critically assess the risk of harm in dual relationships.

Interestingly, Congress (2001) reported that although most social work educators (98.9%) reported that sexual relationships with current students are unethical, less than 30% believed that sexual relationships with former students was unacceptable. It may be that many respondents did not believe that the ethical standard prohibiting sexual relations with former clients applies to relations with students, who have completed their education and are therefore unlikely to return to seek further services from the faculty member (Congress, 2001).

Conflicts of interest are inherent in extracurricular teacher/student relationships. The issue of fair grading by the professor of the student is one potential problem, as is the perception of favoritism and nepotism (Paludi & Barickman, 1998). Although graduate education has become less formalized and more collegial, any dual relationship, particularly a sexual one, will likely hinder an educator’s ability to evaluate and grade impartially (Congress, 1996). This loss of objectivity may also create feelings of resentment among other students in the classroom.

Some students may enter into relationships with faculty because they are flattered by the attention from an older professor for whom they have high regard (Sandler & Shoop, 1997). Paludi and Barickman (1998) asserted, however, that a faculty member’s relationship with a student involves emotional complexities not unlike those that occur in a therapist/client relationship. Most powerful are the dynamics of student vulnerability that occur as a result of the professor’s capacity to enhance or diminish students’ self-esteem (Stamler & Stone, 1998). This analogy to the therapist/client relationship is especially meaningful to social work educators, because they strive to help students understand the importance of establishing and maintaining worker-client boundaries that promote healthy interpersonal patterns. Because helping relationships are client centered, and teaching relationships are student centered, the parallel process can be an important experiential learning tool and model for students.

The nature of the relationship between student and professor is that the student is dependent and therefore vulnerable. Students, like clients in helping relationships, look to the professional to establish the boundaries of the relationship in order to maintain trust (Stewart et al., 1998). Peterson’s (1992) definition of boundary violations in higher education is strikingly similar to our concept of such violations in the helping professions: they are acts that breach the core intent of the relationship. When professors or social workers use the professional relationship to meet personal needs rather than student or client needs, the integrity of the relationship is compromised. Although it could be argued that the student (or client) also has sexual needs to which he or she may be responding, Stamler and Stone (1998) maintain that any personal interactions that create ambiguity and confusion are considered boundary violations.
In the context of education, sexual relationships confuse roles and alter the instructional atmosphere (Stamler & Stone, 1998). Rupert & Holmes (1997) asserted that dual relationships occur whenever individuals try to simultaneously fill two or more different roles, including non-sexual roles. The demands of role multiplicity create conflicts of interest and potential exploitation of the nonprofessional member of the relationship (Rupert & Holmes, 1997). Interestingly, despite the seemingly obvious conflicts involved, Rupert and Holmes (1997) found that out of the 239 universities they surveyed, more than 55% reported that they encouraged friendships with students, compared to only 6.3% that reportedly encouraged business relationships with students.


6. Implications for Social Work Education
In general, it seems prudent for social work faculty members to resist the temptation of engaging in sexual relationships with students. Social work professors, perhaps more than in other disciplines, inspire and motivate students largely by example, and should be held to a standard that consistently demonstrates an appropriate degree of professionalism. In fact, an important skill for social work students to learn is the ability to convey genuineness, warmth, and compassion without inaccurately misrepresenting the relationship as something other than professional. Arguably, although the CSWE Curriculum Policy Statement (Council on Social Work Education, 2002) emphasizes the integration of social work values and ethics in the curriculum, the social work professor teaches these skills largely through interpersonal process rather than curriculum content.

While instructors are human, and learning is enhanced when students perceive teachers as genuine, students must be able to expect and trust that professors will set and maintain reasonable boundaries. At best, consensual sexual relationships create the appearance of impropriety, and at worst, they blatantly violate the professor’s duty to the student, the university, and the community.

Because professors praise, criticize, evaluate, and recommend students, an inherent power differential exists within the context of the relationship. This power differential transcends other apparent equalities such as age, gender, ethnicity, and socioeconomic status, but in some cases, power disparity may be further exacerbated by those same characteristics. The asymmetric nature of the teaching relationship renders a student vulnerable to exploitation, and thus, as with clients in helping relationships, a student’s voluntary consent to sex is intrinsically suspect.

Through the exploration and resolution of the ethical dilemmas that present themselves in professional practice, social work educators assist students to understand the importance of reaching solutions that recognize the needs of the client as paramount. A similar type of transference and counter-transference that occurs in social worker-client relationships may occur in interactions between professors and students. In other words, students may attribute to professors qualities that they admire in others or aspire to hold themselves. To use the student’s awe of the professor’s status or authority to suit the instructor’s own needs contradicts the notion that social workers help others to process feelings rather than act on them.

Of course, there may be cases in which mature graduate students and their professors truly fall in love. In such instances, perhaps the sensible solution is to remove the potential conflict by terminating the teaching or supervisory relationship prior to consummation. It would be advisable, for example, for the student to withdraw from the course, or for the professor to resign from the advising committee.

The issue of dual relationships between faculty and students is particularly salient for social work educators, although there is a lack of research specifically addressing sexual harassment in social work education (Risley-Curtiss & Hudson, 1998). Dual relationships, which are unethical for social workers in general, create conflicts of interest that limit the professor’s objectivity, confuse expectations for the student, and increase resentment for classmates. Because it is incumbent upon social work educators to help students understand the nature and conflicts of dual relationships, to engage in a dual relationship with a student would seemingly be contradictory. The ambiguity of the sexual relationship between teacher and student threatens the integrity of the educational process and diminishes the authority and accountability of the faculty member. Ultimately, these relationships undermine the spirit of mentorship and detract from the primary role of the educator, which is to facilitate the achievement of the students’ learning objectives.

Professional social workers should be especially sensitive to the implications of oppression, exploitation, and victimization. We are trained to recognize and respond to abuses of power and to advocate for and empower vulnerable individuals. Although we are not, of course, above reproach, we should model for our students the type of responsible and fair authority with which we expect them to serve their clients.


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