A few days ago, the New York Post published a picture of Anthony Weiner. The sexually suggestive image showed the disgraced former congressman's crotch. The photo also included Jordan, the young son of Weiner and Huma Abedin, a key aide to Hillary Clinton. The child was in the frame, though his face was blurred in the publication.
It was, of course, hardly the first time Weiner had been linked to a sexting scandal.
In the wake of the New York Post report, Abedin announced that the couple was separating.
The fallout continued Wednesday, as the Wall Street Journal, WABC, the New York Daily News and the New York Post reported that officials from the Administration for Children’s Services were investigating Weiner's treatment of his son, who is now 4.
That same day, Weiner told the New York Times in an email: "We haven’t been contacted by A.C.S."
But Thursday night, he confirmed to the Times that the child-welfare agency has opened an investigation.
"He said that the agency had left a bare-bones letter about the investigation at his mother’s house," the Times reported, adding:
It was unclear why the agency had sent a letter to his mother’s residence, rather than to him directly. He, too, seemed mystified: "Crazy if you ask me," he said, adding that he had called the agency to learn more.
"In order to protect children and their privacy, ACS does not comment on specific cases or allegations of child maltreatment, regardless of whether or not allegations have been reported, are being investigated, or have not resulted in an investigation," the agency told The Washington Post in an email.
When asked about reports of an investigation, a spokesperson said in an email that the agency couldn't expand upon its initial comment.
What is the process for an investigation, and if one did occur, what would it entail? Here's what we found out, after talking to a few experts.
To start with: Was the photo something that would be reported to a child welfare agency?
For this, I spoke with Seth Kalichman, a psychology professor at the University of Connecticut who wrote a book entitled "Mandated Reporting of Suspected Child Abuse: Ethics, Law and Policy." This area isn't Kalichman's focus anymore (he works in AIDS research), but he still gets calls on it from time to time, he said.
"If I was sort of looking through a Twitter feed," Kalichman said, "and saw sexting going on, with a young child in the picture, I believe that a citizen, a responsible citizen, should report that for investigation. And if a client in a clinical situation shared that image with a mental health professional, it would warrant suspicion to launch a child investigation."
That doesn't mean that Kalichman is drawing a conclusion here, saying, "Hey, that's an abusive situation." Those judgments don't come into play. And to clarify, Weiner's most recent picture wasn't posted to Twitter, as was the case previously. But Kalichman said that didn't really matter. "I think what matters is that there's this sexualized picture with a kid in it," he said. "That's what matters. That's sort of the bottom line. That there's a sexualized image with a child in it."
Okay, so . . . then what?
Here's how this process generally works, according to an ACS deputy press secretary: To report an allegation for investigation, someone with direct knowledge would have to contact the New York State Statewide Central Register. If state officials decide that the allegations meet a "standard of a reasonable suspicion" of maltreatment, then officials will assign the case out.
When the city's Administration for Children’s Service gets a report from the state officials, it assigns someone to conduct an investigation. The law requires that ACS investigate all the reports that they receive.
Martin Guggenheim, a professor at the NYU School of Law, told The Washington Post that if the process gets that far, he sees it going one of three ways: that Weiner did nothing that warrants further inquiry; that he did something that warrants further attention, but not something that would constitute falling below the minimal standard of care; or (a scenario that Guggenheim said was unlikely) it ends up in court.
"The agency might find — and now we're really talking hypothetical stuff — there is a reason to be concerned here, but that's still quite a ways from saying that he did something that a court would adjudicate him as unfit or neglectful for having done," he said. "Those are two different standards."
Does the picture represent any neglect or abuse?
"Assuming the photo depicted in media reports is accurate, the conduct depicted would not meet the statutory definition of child abuse or neglect," Michelle Dhunjishah, director of the Children's Law Center at the University of South Carolina, said in an email. "Additionally, it does not appear that the child is at substantial risk or in imminent danger of being abused or neglected. Statutory definitions of abuse and neglect vary from state to state. Neglect is generally defined as a failure to provide food, clothing, shelter, supervision, education or medical care."
However, Merril Sobie, a law professor at Pace University, said in a phone interview that a person could argue that the child was placed "in imminent risk of emotional harm."
"Well, the fact that he is sexting, he is in a compromising position," Sobie said. "His child is right there with him when he does that. Does that place the child in imminent risk of emotional harm? One could certainly make that argument. There's no case yet. We're, I guess, far from, assuming there is a case, a prosecutor gathering the forensic evidence that the child was placed in imminent risk. But I could see the possibility, certainly, of that argument."
In an email to The Post, Guggenheim described child welfare matters as "civil inquiries, permitting state officials to intervene even when no crime has been committed." Sometimes there is both a criminal investigation and a child welfare investigation. Other times, however, there are no allegations of a crime.
"The standard, which varies by jurisdiction, is whether the parent engaged in conduct that places a child at an unreasonable risk of harm," he wrote.
Child abuse is usually focused on physical harm, whereas neglect kind of covers everything else, he said in the email.
"In the Weiner case, no crime was committed. But, as I say, that doesn’t end the inquiry," he wrote. "But from what I know of this matter, neither is there any basis for child welfare intervention. From what we know, we have a father who was fantasizing about sex while his young child was asleep in the same bed. Millions of parents do every day. This additional twist here that he took some pictures doesn’t change anything."
When can child welfare officials intervene?
"Child welfare inquiries strive to find the line between what parents may not do and what, however much some would prefer they not do, is within their freedom of choice," Guggenheim said in his email. "Child welfare is not about preventing parents from doing things many people would not do or condone. It is about preventing parents from doing unacceptable things: things no one is allowed to do."
When the conduct of a parent has fallen "below the minimum standard of care," there is a basis for officials to intervene, he wrote.
"Moreover, this inquiry also includes a focus on the harm or potential harm to the child," Guggenheim wrote. "And on this ground, too, there would be no basis for intervention. We have no reason to believe the child suffered any kind of harm or was at risk of suffering harm."
Dhunjishah said that removing a boy or girl from a home is a step taken only when it is "absolutely necessary to protect the health and safety of a child."
"In my experience, this would not be a case that resulted in an intervention from Child Protective Services," she wrote. "While this does not rise to the level of abuse and neglect, any concerns about parenting or decision making for the child would be best addressed in a private custody agreement."
Do Weiner's previous sexting scandals matter here?
Guggenheim, the NYU professor, pointed out that people have been having affairs, or basically being lousy spouses, for . . . well, a long time.
"Some of them are wonderful parents. They're men and women," Guggenheim said. "We don't ever associate that with being unfit. So this guy doesn't exactly do that. He fantasizes in his home with people virtually, or whatever, I don't even know what it is.
"In other words, this is one step less than having an affair. Well, if you're a mother spending all day taking care of your kid, and all you're doing is fantasizing when you can get out and go to the bar and meet the guy you're hot to be with, that's life. That's who we are. We're people who live a life. We're parents and sometimes we are unfaithful to the child's other parent."
Since we've already mentioned custody, how does this photo impact that?
This is when the conversation shifts from the "minimum standard of care" to that of the "best interests" of the child.
" 'Best interests' is used when parents are fighting each other for custody," Guggenheim wrote in an email. "In that fight, courts are mediating a contest between two parties each of whom has a right to raise the child and the court must pick one over the other. The tie breaker used there is 'best interests.' So, in a fight between Abedin and Weiner for custody of the child, Abedin would be able to highlight Weiner's sexting behavior if she wanted to defeat him in court. And it is almost certain that she would prevail in that fight. But that would be up to Abedin — and to Weiner. In other words, if Abedin chooses to continue to let Weiner raise their son, that's their business. If she no longer wants that, all she would need to do is to tell Weiner she no longer wants him raising the boy.
"If Weiner went to a lawyer for advice, trying to figure out his odds of winning a contested custody battle against her, I expect the lawyer would educate Weiner that his chances of winning that fight are slim to none."
This post, originally published on Sept. 1, has been updated.