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The North Carolina Experienceby Grier Weeks
The politics of child protection are awfully strange. Try to get a law changed to punish a hated crime like incest, and you'll start to see why. Imagine a law that said an uncle who raped his niece was guilty of a misdemeanor, punishable by 45 days of community service. Or one that said a father who sexually assaulted his own child had committed a minor felony, punishable by probation. That was the law in North Carolina, before state senator Steve Metcalf proposed to reform the State's outrageous 1879 incest statutes. Change the laws, he said, and treat incest the same way we would child sexual abuse by strangers. It was a small act of decency—a promise to children living in terror that the law would value and protect them the same as it does other children. It was also an important example to states all over the nation of how they could move to criminalize all child sexual abuse. The legislation was originally proposed by children's attorney and author Andrew Vachss. Vachss, a formidable fighter for children with little tolerance for empty rhetoric, noted in a Parade magazine article that the law in most states gives "special immunity to sex offenders who grow their own victims." "Which is more destructive to our species?" Vachss asked. "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?" Metcalf agreed. With his House co-sponsor Martin Nesbitt he introduced House Bill 1276, a bill to "Close the Incest Loophole to Protect Children." The story of how that bill became law holds many lessons for everyone willing to fight for pro-child, anti-crime legislation to protect children. There are two entirely different versions of what happened to North Carolina House Bill 1276, because the bill made two different runs through the North Carolina legislature over the course of a two-year session. Had a small technical mistake not been made in legislative drafting, the lessons from the North Carolina experience might have been simple, short and happy. Rep. Nesbitt introduced it, and it proceeded to fly through both houses of the legislature, passing both unanimously. It certainly looked as if everyone were on the same side on this one. However, before the bill could be sent to the Governor's office to be signed, it was recalled and sent back to committee when one member noticed a technical flaw in the bill's language. Then began a longer, more complicated struggle. Upon learning of the problems in the bill's language, our goal was to get it quickly corrected and back on the committee's agenda, making as little of the setback as possible. What commenced instead was months of nitpicking and revision. At each turn, members of the committee raised new questions and objections. Some members said they wanted to fix the myriad other problems with the 1879 statutes before signing off on the Metcalf-Nesbitt bill—but never made time to do so. Others quibbled with how the legislation was drafted (and redrafted). Red herrings about criminal procedure and the definition of "aunt" and "uncle" were raised, sending the committee off on tangents as the clock—and the calendar—ran out. By the fourth draft, several members were openly irritated that the pesky bill hadn't just gone off somewhere and died. But Senator Metcalf, an influential member of the state senate, kept coming back, bill in hand. One Republican member, not known for his refinement, finally asked Metcalf in an open meeting, "Why don't you go back to the mountains where it's legal?" As the months passed, we were also gathering support and endorsement. The National Center for the Prosecution of Child Abuse offered the committee technical advice on the bill, saying, "we want to emphasize again the great importance of this legislation, both for North Carolina children and children across the nation." A few dedicated volunteers kept things going. Lisa Walls, a North Carolina graduate student, began gathering formal endorsements for the bill, including influential organizations like the Covenant with North Carolina's Children and Prevent Child Abuse North Carolina. Scott Morris, another student from Ohio, researched incest law and passed it along. Lou Bank, an activist for closing the incest exception at the national level, was there at every turn. And Andrew Vachss, the original father of the legislation, provided invaluable counsel and support to us. But as time wore on, the bill began to be criticized for reasons other than technical. A copy was sent to the North Carolina Conference of District Attorneys. The North Carolina Sentencing Commission was asked to study the bill during the legislature's recess. Although neither dared boldly attack the bill on principle, some DAs privately objected on the grounds of "prosecutorial discretion." The Sentencing Commission formally made their case for them. These cases are tough, their argument went, and prosecutors need all the tools possible at their discretion. There really wasn't any problem here, and well-meaning efforts to change the law might actually make things worse. I replied to these objections in a column in the Raleigh News and Observer. "You can bet your life… that not one [prosecutor] would dare stand up in public and call for a new misdemeanor child rape law for strangers who rape our children. Why should we demand any less justice for a child whose abuser happens to be related by blood?" I added that no one was questioning the integrity of prosecutors by insisting they have limits on their prosecutorial options. We were left at an impasse. It became clear that prosecutors would not do much else to openly oppose the bill, and we had now gathered a great deal of support for it. But the Senate committee continued to redraft and question the bill's language. At least two of the more liberal members of the committee expressed personal dislike for and irritation over the bill. One leveled the charge that it was symbolic and would "not do a thing," and grew increasingly angry at me personally. (I have that effect sometimes.) She demanded to see specific cases, as if they did not exist. They did, and they showed in disgusting detail that this issue was more than mere symbolism. Another member actually tried to add an amendment to the bill that would weaken North Carolina's sex offender registry law. Metcalf talked him out of it. At a high-powered political event in late August of 2002, passionate child advocate and philanthropist Adelaide Daniels Key pulled aside North Carolina Senate President Pro Tem Marc Basnight. In a distinct breach of cocktail party etiquette, she brought up the subject of incest, and made a strong case for getting the Metcalf-Nesbitt legislation out of committee and passed. Basnight, perhaps the most powerful man in North Carolina politics, is known for listening, remembering and keeping his promises. On August 28, House Bill 1276 passed the North Carolina Senate unanimously. On September 9th, it passed the House unanimously. On September 23rd, 2002 Governor Mike Easley, a former prosecutor and Attorney General, signed the bill into law. "This is a good law," he said, pen in hand. In the traditional political world, there is a disconnect between "pro-child" liberalism and "anti-crime" conservatism. Anti-crime politics is a bread and butter issue for most traditional conservatives. But when it comes to crimes against children, a strong "pro-family" lobby keeps many conservatives soft and confused about just exactly who the real victim is in child sexual abuse cases—the child or the parents who are besieged by DSS and law enforcement. And, of course, they're first to cut crucial programs for children. Traditional liberals, on the other hand, see themselves as "pro-child" and tend to think tough-on-crime politics is demagoguery. They may not be opposed in theory to getting tough on crimes, especially against children, but they simply don't have a lot of appetite for it. On the other hand, they love children—just ask them. They're natural allies when it comes to funding services that help children and families. But none of this goes very deep. This great political ambivalence, silliness and apathy in the face of rampant child abuse would dissolve overnight if an organized constituency demanded both a pro-child and anti-crime response. Senator Steve Metcalf's legislation to criminalize incest in North Carolina was a perfect prototype of smart, nonpartisan legislation to protect children. It languished for over a year because he had fewer than a dozen committed supporters behind him. It passed in two weeks because political will became focused on it overnight. "For every parent who violates the sacred trust every child represents," wrote Andrew Vachss, "there are thousands committed not only to protecting their children but also to protecting all children. That desire is our highest calling." In North Carolina, we couldn't agree more. And we've got one new law to prove it. Grier Weeks is a founder and board member of Protect and ProtectPAC. MISTAKE GENERAL ASSEMBLY OF NORTH CAROLINA HOUSE BILL 1276 Short Title: Close Incest Loophole to Protect Minors. (Public) April 12, 2001 A BILL TO BE ENTITLED AN ACT TO CLOSE THE LEGAL LOOPHOLE THAT EXISTS UNDER THE STATE'S INCEST LAWS AND TO EQUALIZE PUNISHMENTS FOR CRIMES COMMITTED AGAINST CHILDREN WITHOUT REGARD TO FAMILIAL STATUS. Whereas, despite the progress made in modernizing laws
to protect children in North Carolina, a little-known loophole
exists in the General Statutes of North Carolina that has very
troubling consequences for some abused children; and
Whereas, this loophole allows far lesser penalties for
perpetrators convicted of sexually assaulting their own children
than for those who rape or molest other children; and
Whereas, this unintended disparity is the result of archaic
incest laws that date to 1879, statutes that were originally
intended to limit intermarriage among family members but
now hamper modern efforts to fight sexual abuse of children;
and
Whereas, this double standard, that essentially rewards
perpetrators for the most unthinkable betrayal of a child's trust,
does not reflect the values and goals of the citizens of
North Carolina; and
Whereas, criminals who sexually assault children should
be prosecuted without regard to familial relationship; Now,
therefore,
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-178 reads as rewritten:
"§ 14-178. Incest between certain near relatives.
(a) The parties shall be guilty of a felony in
all cases of carnal intercourse between (i) grandparent and
grandchild, (ii) parent and child or stepchild or legally
adopted child, or (iii) brother and sister of the half or whole
blood.
(b)Every such offense is punishable as a Class F felony.
(c)This section applies only if the parties are
16 years old or older. This section does not apply
if one of the parties is a minor. Conduct covered under this
section, and committed against a minor under 16 years old, is
unlawful and shall be prosecuted as provided under other
provisions of applicable law."
SECTION 2. G.S. 14-179 reads as rewritten:
"§ 14-179. Incest between uncle and niece and nephew and
aunt.
(a) In all cases of carnal intercourse between
uncle and niece, and nephew and aunt, the parties shall be
guilty of a Class 1 misdemeanor.
(b)This section applies only if the parties are
16 years old or older. This section does not apply
if one of the parties is a minor. Conduct covered under this
section, and committed against a minor under 16 years old, is
unlawful and shall be prosecuted as provided under other
provisions of applicable law."
SECTION 3. This act becomes effective
December 1, 2001, and applies to offenses committed on or after
that date.
HERE IS AN EXPLANATION OF THE MISTAKE: Section 2(b) Third Sentence: "Conduct covered under this section, and committed against a minor is unlawful and shall be prosecuted as provided under other provisions of applicable law."PROBLEM:In situations where one party was just under 16 (e.g., age: 15) and the other party just over 16 (e.g., age 17) there IS NO OTHER law on the books making carnal intercourse a crime (between "consenting" parties). In N.C., there must be at least a four year difference in ages for statutory rape to apply. Therefore, by drafting the legislation to simply REDIRECT prosecution, we created a new "loophole" which effectively legalized incest between teenagers less than four years apart in age. This legislators were not willing to do. The solution was to refocus on on the actual crimes, and to draft punishments that paralleled, as closely as possible, other existing law. One notable outcome (that we did not emphasize along the way!) is that prosecutors now have a significant new tool. Whereas before the two incest statutes (which have now been collapsed into one) were virtually useless except as a throwaway plea bargain, the new incest law actually has some teeth. Even more significant, the Governor himself pointed out that prosecutors can charge rape AND felony incest, because the elements of each crime are different. So there is now the potential for much longer sentences for those who prey on their own family members. —Grier TEXT OF FINAL, SIGNED BILL [NOW LAW] GENERAL ASSEMBLY OF NORTH CAROLINA SESSION LAW 2002-119 AN ACT TO CLOSE THE LEGAL LOOPHOLE THAT EXISTS UNDER THE STATE'S INCEST LAWS BY EQUALIZING PUNISHMENTS FOR CRIMES COMMITTED AGAINST CHILDREN WITHOUT REGARD TO FAMILIAL STATUS. Whereas, despite the progress made in modernizing laws
to protect children in North Carolina, a little-known loophole
exists in the General Statutes of North Carolina that has very
troubling consequences for some abused children; and
Whereas, this loophole allows far lesser penalties for
perpetrators convicted of sexually assaulting their own children
than for those who rape or molest other children; and
Whereas, this unintended disparity is the result of
archaic incest laws that date to 1879; statutes that were
originally intended to limit intermarriage among family members
but now hamper modern efforts to fight sexual abuse of children;
and
Whereas, this double standard, that essentially rewards
perpetrators for the most unthinkable betrayal of a child's
trust, does not reflect the values and goals of the citizens of
North Carolina; and
Whereas, criminals who sexually assault children should
be prosecuted without regard to familial relationship; Now,
therefore,
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-178 reads as rewritten:
"§ 14-178.
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