Improving Res Ipsa Loquitur Doctrine in Child Abuse Cases: A Step Toward Racial Justice
25 J. Gender, Race & Just. 411 (2022)

Download PDF


The American child welfare system intrudes on, separates, and permanently severs Black and Indigenous families at significantly higher rates than white families. It is profoundly troubling that the well-established harms associated with taking children from their homes are inflicted disproportionately on families of color. In light of the long and shameful American history of separating non-white children from their families, child welfare professionals have begun addressing racial bias in decision-making. But implicit bias training (the favored response of child welfare agencies) and efforts to make policies colorblind are not enough. True redress of the longstanding racial harms of the child welfare system requires scrutinizing the legal rules that too often stack the deck against innocent parents. Often the legal rules that cause the most harm have no explicit markers of racism. Because one of the critical aspects of addressing structural racism is recognizing that it is embedded in ways that make racist outcomes appear to be the result of neutral processes, we must vigorously reassess existing legal doctrine that disproportionately harms non-white litigants.

Lawyers and judges can pursue racial justice within existing law by interrogating whether and how legal rules are implemented differently in arenas that impact more and less privileged litigants. Undertaking such a reassessment, this article identifies a significant step that could be taken to improve legal doctrine to promote racial justice in the child welfare system: reconfiguring how the res ipsa loquitur doctrine is implemented in child abuse cases.

Imported from tort law, res ipsa loquitur doctrine has come to play an important role in child protective proceedings, allowing courts to make findings of abuse without direct proof that a parent harmed a child. Although the doctrine as used in tort law has been the subject of extensive commentary, there has been little attention paid to its use in civil child abuse cases. This article fills that gap, arguing that family courts have wrongfully imposed liability on multiple caretakers under circumstances in which such an approach is not allowed in the tort context.

Analyzing court decisions in which parents and babysitters have been held jointly liable for incidents of child abuse, this article concludes that such decisions violate both common sense and accepted legal doctrine by allowing defendants to be held liable without a showing of fault by a preponderance of the evidence.

The article proposes a more principled approach to res ipsa loquitur child abuse doctrine that adopts the safeguards used in tort law to ensure courts require a showing of fault by a preponderance of evidence, prohibit shifting the burden of proof to defendants, and (following Prosser’s admonition regarding tort law) avoid surreptitiously imposing strict liability. The article also proposes ways to customize the doctrine to the child protective context to ensure it serves the broader goals of child welfare law.

Smuggling strict liability into a legal scheme that purports to be fault-based is particularly dangerous when the rule is disproportionately imposed on Black families. At a minimum, the doctrine used should be transparent so that litigants understand the standard being imposed. The approach recommended in this article would provide transparency and ensure that unnecessary family separations are not baked into the governing liability rule.

Wednesday, June 22, 2022