Child Sexual Abuse and the State: Applying Critical Outsider Methodologies to Legislative Policymaking
Ruby P. Andrew
Southern University Law Center
UC Davis Law Review, Vol. 39, No. 5, 2006
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
Ruby P. Andrew (Contact Author) Southern University Law Center
P.O. Box 9294
Baton Rouge , LA 70813
United States
| UC Davis Law Review
|
| Contact: |
Editor in Chief |
| Postal: |
UC Davis Law Review
University of California School of Law
400 Mrak Hall Drive
Davis,
CA
95616-5201
USA
|
| Phone: |
530-754-7644 |
| Fax: |
530-754-5631 |
| |
|
| URL: |
http://www.law.ucdavis.edu/lawreview/ |
|