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Arkansas Overhauls Incest Law - Background InformationThe Incest ExceptionThe problem of state criminal codes providing lesser punishments for family members was first publicized in a 1998 Parade magazine article by children's attorney and author Andrew Vachss (pronounced Vax). Many states, he wrote, "provide special immunity to sex offenders who grow their own victims." "Which is more destructive to our species" asked Vachss (who is a PROTECT National Advisory Board member), "the random sexual assault of a child or the sexual assault of a child by the very individual whom all laws command to protect that child?" Vachss' article sparked federal legislation that would have forced states to equalize punishments for the rape of a child. That legislation died, but was later revived by PROTECT in North Carolina, Arkansas and Illinois. The Incest Exception in Other StatesNorth Carolina, where an uncle who raped his niece could be prosecuted for a misdemeanor, changed its laws last year, after state Senator Steve Metcalf (D-Asheville) and Rep. Martin Nesbitt (D-Asheville) introduced legislation to equalize punishments. PROTECT is also working in Illinois with state Representative Joe Dunn (R-Naperville). Dunn, a freshman legislator concerned about child abuse and domestic violence, introduced his "Protect All Children" bill (HB 3466) this spring. It passed the Illinois House last month. Senator Don Harmon (D-Oak Park) is the Senate sponsor. The legislation would remove a provision in the law that allows perpetrators of child rape to receive probation if they are related to their victim. PROTECT is also considering legislative campaigns to eliminate incest exceptions in California and New York. PROTECT will keep fighting this battle in the states until a national leader steps forward with the courage and skill to reintroduce and pass federal legislation. Loophole or Intentional Double Standard?Legal experts widely agree that the incest exception is often the unintended result of antiquated laws that were designed to prevent genetic inbreeding, not protect children. But contrary to popular stereotypes, incest is almost always a crime committed by adults against children. "Incest is not a 'lifestyle choice' between ignorant adults," says PROTECT executive director Grier Weeks. "And it's not some obscure, backwater problem. In a large percentage of cases, it is exactly what child sexual abuse looks like. These are horrendous crimes committed against children by the very people they should be able to trust the most." The double standards are not always unintended, however. Last year a California Supreme Court case (People v. Wutzke, SO92179) caused controversy over a 1981 law that expressly allows probation in child sexual abuse cases if the perpetrator is a family member. The Recorder, a California legal newspaper, editorialized during the trial that the law "should rank high in a legal Hall of Shame." ("Family Values," June 7, 2002 editorial) The California law reflects the belief—common in the early 80s—that preserving the family at almost any cost was in the best interests of child victims. "There are still some who argue that incest perpetrators can be 'cured' or that we should not jail 'breadwinners'," says Weeks, "We used to hear the same thing about domestic violence. These kids need us to be smarter than that." |
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