Child Sexual Abuse and the State: Applying Critical Outsider Methodologies to Legislative Policymaking

Abstract:     
Sexual assaults are punished as serious felonies, often resulting in the lengthiest terms of incarceration meted out by the state. When the perpetrator is an adult and the victim is a child, many states further enhance the penalty for sexual assault by increasing the minimum available sentence and creating more stringent conditions for release.

However, many states offer a discounted criminal charge to perpetrators of child sexual assault who are related to their victims. Loopholes written into state laws permit related perpetrators who have been convicted to escape penalties which would otherwise be mandatory for child sexual offenders, including imprisonment, mandatory sentence enhancements, and sexual offender registration. Prosecutors may offer probation-only sentences and forms of judicial diversion available only to related perpetrators. In some cases, the convicted perpetrator may return to live in the home of the child-victim.

The article employs a problem-solving methodology rooted in critical outsider theory to critique these loopholes in state child protective systems as dangerously unsound policy. Using California as a case study, the article details the laws that authorize a prosecutor to permit convicted child sexual offenders to sidestep the charges, penalties, and administrative safeguards required by state law, as long as they are related to their victims. It examines the legal history of state incest laws and the social and political responses during the last century to the problem of sexual abuse of children in their homes. Criminal and medical studies are adduced to demonstrate that related and non-related perpetrators cannot be differentiated, either in their criminal acts or their psychological makeup. The article concludes with model legislation drafted to correct the flaws identified in state penal code.

Keywords: criminal law, sentencing, penal code, One Strike, CAPTA, probation, prosecutor, discretion, sex offender, predatory pedophile, incest loophole, rape, sexual abuse, children, intrafamilial violence, law guardian, legal theory, statutory interpretation, problem solving, drafting, policy, legislation

JEL Classifications: D72, D73, D78, D81, I38, J18, J78, K14, K30, K42

Accepted Paper Series