Does

Abstract

The political rhetoric surrounding children and homosexuals often overlooks the interests of children who are themselves homosexual. Yet under the political radar, legal scholars are becoming increasingly cognizant of the need to discuss the rights of sexual minority children vis-à-vis their parents. As one author notes, "Psychological abuse from family members affects queer youth more than any other group of adolescents," and sixty percent of gay-related violence suffered by these children takes place in the home. Queer youth who disclose their sexual identity to unaccepting parents may suffer emotional and physical abuse. Parents "may banish the child from the house and shirk their legal duty to provide financial support because they want to disown the sexuality of their child." Within this web of physical and emotional abuse lie parental efforts to change their child's sexual orientation, otherwise known as "reparative therapy." In 1999, Karolyn Ann Hicks proposed that subjecting one's child to reparative therapy can and should constitute child abuse. Using New York state child abuse law as a framework, Hicks claimed that abuse depends on the "reasonably prudent parent standard." A reasonably prudent parent researching reparative therapies would discover that they are potentially dangerous and not accepted in the mainstream medical community. Further, taking existing societal homophobia into account, a parent would not subject her child to such therapy. Therefore, a parent who subjects her child to reparative therapy should be guilty of child abuse. Hicks concluded with guarded optimism, however, by stating that since the Supreme Court's 1986 decision in Bowers v. Hardwick held that a belief in homosexuality's immorality was a valid public policy consideration, it would be difficult for states to prosecute parents under this theory. Hicks's theory has recently taken on new relevance. In 2004, what Hicks claimed as the primary obstacle to her theory's implementation was removed: Bowers was overruled by Lawrence v. Texas, which held that a belief in homosexuality's immorality could not serve as a rational basis for any state law." Regardless of whether Lawrence really means that Hicks's theory may now be implemented, In re E.L.M.C. demonstrates that such a prospect is not implausible. That 2004 case involved a child custody dispute between a same-sex couple, in which one parent began to believe homosexuality was immoral after the separation. The trial court below awarded the parties joint parental responsibility but required the parent who believed homosexuality was immoral to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." The appellate court remanded the case to determine whether homophobic teachings would "significantly impair her emotional development." Although this was a child custody case, the evidence used to determine custody is often equally applicable in child abuse cases. And although this case did not involve reparative therapy, the motivating factor behind the parent's potentially homophobic teachings and reparative therapy was the same: the belief, usually religious, that homosexuality is immoral. Therefore, this case shows that a court may not consider that belief to be sacrosanct territory immune from judicial intervention. This Note argues that, for evidentiary reasons, contrary to what Hicks may suggest, reparative therapy cannot be considered child abuse under current law. There is no reliable evidence that reparative therapy works, and there is also no empirical evidence that reparative therapy is harmful. Professional psychological associations' codes of ethics continue to remain silent on the practice, and the courts do not require psychological treatments to empirically demonstrate their effectiveness in order to justify their appropriateness. This Note discusses these evidentiary factors in detail.