74 Pages Posted: 9 Nov 2000
The continuing growth of nontraditional families in the United States presents unique problems for family law courts. Concerns regarding the welfare of children in nontraditional families loom larger in light of considerable evidence demonstrating that a female child, after her parents' divorce, faces a significantly elevated risk of being sexually abused by either a parent, a parent's partner, or a person outside of the home.
In this Article, Professor Robin Fretwell Wilson addresses whether the law can effectively mitigate the risk of child sexual abuse by considering it in custody determinations. After dispelling common misconceptions about the nature of sexual abuse, the Author marshals overwhelming empirical evidence-more than seventy social science studies-showing a connection between family disruption and child sexual abuse of girls. The Author argues that family law deals inadequately with this disturbing phenomenon because courts in custody proceedings generally neglect to address the increased statistical probability of sexual abuse after divorce.
While acknowledging the various reasons why courts may resist considering the increased risk of child sexual abuse in custody proceedings, the Author contends that proactively addressing the problem is the proper solution. A bedrock strategy for curbing threats to public health, such as child sexual abuse, is to identify "high risk" groups and tailor prevention efforts accordingly. Building on this public health model, she maps out three possible routes to prevention through increased parental awareness. These routes include considering the willingness of a custodial parent to shield a daughter from abuse, mobilizing the noncustodial parent as a monitor, and conditioning custody awards upon the completion of actions designed to mitigate the increased risk of abuse, such as a parent participating in parenting classes or enrolling the child in school-based prevention programs. The Author contends that, while these methods are arguably invasive, they are consistent with the essential character of custody determinations, which fundamentally are exercises in predicting the future. To further institutionalize consideration of a girl's sexual vulnerability after divorce, the Author recommends that legislatures require courts to consider it as a criterion in custody hearings.
The Author recognizes that acting in anticipation of risks-rather than after demonstrated conduct-is not without controversy. She examines, therefore, whether tailoring prevention efforts to children at divorce will stigmatize single parents, discourage remarriage or encourage non-custodial parents to later fabricate charges of abuse. She concludes that including consideration of the increased risk of child sexual abuse in custody proceedings is ultimately a common sense way to address a pervasive problem. More broadly, the Author contends that continuing to act as if nontraditional families function as nuclear families is unrealistic-especially in light of the overwhelming empirical evidence to the contrary. She concludes that judicial decisionmakers can intelligently address the challenges facing fractured families only if guided by substantial evidence of how these families function.
Suggested Citation: Suggested Citation
Wilson, Robin Fretwell, Children at Risk: The Sexual Exploitation of Female Children After Divorce. Cornell Law Review, Vol. 86, No. 2, 2000. Available at SSRN: https://ssrn.com/abstract=239434 or http://dx.doi.org/10.2139/ssrn.239434