Betrayal of Trust: Child Sexual Abuse Loopholes in American Law
July, 2006

"Many state codes create a foul distinction between child sexual assaults... These state laws consider incest to be a less serious form of sexual assault."
Gregory Weber, Assistant Attorney General, Wisconsin

Since our founding in 2002, PROTECT has fought for equal protection for all children. From Arkansas to Illinois and California to New York, we have worked to close outrageous legal loopholes that provide lighter penalties for criminals who sexually assault their own children. PROTECT members frequently ask which states have these child sexual abuse loopholes. Identifying them all--and keeping up to date with legislative changes--is a massive research undertaking. But thanks to volunteers across the U.S. and in London, we've made a start.

The information below is just a sampling of known loopholes. We hope that it will help you understand the various ways the law betrays young crime victims. Existing loopholes range from antiquated incest laws--which can be used to plea bargain (or charge bargain) child rape to minor penalties--to more intentional statutes, such as the Hawaii law that not only gives preferential treatment to incest perpetrators, it requires police to tell them they're special. PROTECT's Circle of Trust campaign will continue to fight on, demanding that every child be protected from betrayal at the hands of predators... and the law.


Incest Loopholes
The most common type of child sexual abuse loophole is the incest exception or incest loophole. Typically, these antiquated statutes were intended to prevent intermarriage among closely-related adults and were not designed to address child sexual abuse. However, the vast majority of incest crimes are crimes against children. Incest loopholes create two separate standards of justice, and allow child rape within the family to be prosecuted as a minor crime.

(See complete list of incest loopholes at bottom of this page)

Delaware
766 Incest; class A misdemeanor
(a) A person is guilty of incest if the person engages in sexual intercourse with another person with whom the person has one of the following relationships:
A male and his child...
A male and his grandchild.
[etc...]
(b) The relationships referred to herein include blood relationships without regard to legitimacy and relationships by adoption.
Incest is a class A misdemeanor and is an offense within the original jurisdiction of the Family Court.


Family Preservation Loopholes
A more modern type of differential treatment of child sexual abuse in the home is often not really a loophole at all. Some states have intentionally codified pervasive and deeply-entrenched attitudes that minimize child sexual abuse in families, leaving many young victims without equal protection under the law. California, prior to PROTECT's landmark 2005 Circle of Trust victory, was the most prominent such scheme. Criminals who raped children in their own home were eligible for probation instead of prison, but only if they entered a "recognized program of treatment." The only programs recognized by California were those treating the entire "family." Thus the laws fueled and worked in tandem with a massive sex offender treatment industry to reunify perpetrators with their victims. The sex offender treatment industry often plays a role in drafting these laws (see Utah, below), and defends them by claiming that keeping sexual predators in the home with children--after a period of treatment, of course--is in the child's "best interest." Here are some examples of family reunification loopholes:

Minnesota
609.342 Criminal sexual conduct in the first degree.
Subdivision 1. Crime defined. A person who engages in sexual penetration with another person, or in sexual contact with a person under 13 years of age as defined in section 609.341, subdivision 11, paragraph (c), is guilty of criminal sexual conduct in the first degree
[...]
Subd. 2. Penalty. (a) Except as otherwise provided in section 609.109 or 609.3455, a person convicted under subdivision 1 may be sentenced to imprisonment for not more than 30 years or to a payment of a fine of not more than $40,000, or both.
[...]
Subd. 3. Stay. Except when imprisonment is required under section 609.109 or 609.3455, if a person is convicted under subdivision 1, clause (g), the court may stay imposition or execution of the sentence if it finds that:
(a) a stay is in the best interest of the complainant or the family unit; and
(b) a professional assessment indicates that the offender has been accepted by and can respond to a treatment program.
If the court stays imposition or execution of sentence, it shall include the following as conditions of probation:
(1) incarceration in a local jail or workhouse;
(2) a requirement that the offender complete a treatment program; and
(3) a requirement that the offender have no unsupervised contact with the complainant until the offender has successfully completed the treatment program unless approved by the treatment program and the supervising correctional agent.

Utah
76-5-406.5. Circumstances required for probation or suspension of sentence for certain sex offenses against a child.
(1) In a case involving a conviction for a violation of Section 76-5-402.1, rape of a child; Section 76-5-402.3, object rape of a child; Section 76-5-403.1, sodomy on a child; or any attempt to commit a felony under those sections or a conviction for a violation of Subsections 76-5-404.1(4) and (5), aggravated sexual abuse of a child, the court may suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if all of the following circumstances are found by the court to be present and the court in its discretion, considering the circumstances of the offense, including the nature, frequency, and duration of the conduct, and considering the best interests of the public and the child victim, finds probation to a residential sexual abuse treatment center to be proper:
(a) the defendant did not use a weapon, force, violence, substantial duress or menace, or threat of harm, in committing the offense or before or after committing the offense, in an attempt to frighten the child victim or keep the child victim from reporting the offense;
(b) the defendant did not cause bodily injury to the child [...]
(c) the defendant, prior to the offense, had not been convicted of any public offense in Utah or elsewhere involving sexual misconduct in the commission of the offense;
(d) the defendant did not commit an offense described in this Part 4, Sexual Offenses, against more than one child victim or victim [...]
(e) the defendant did not use, show, or display pornography or create sexually-related photographs or tape recordings in the course of the offense;
(f) the defendant did not act in concert with another offender [...]
(g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or sexual act by the child victim with any other person or sexual performance by the child victim before any other person;
(h) the defendant admits the offense of which he has been convicted and has been accepted for mental health treatment in a residential sexual abuse treatment center that has been approved by the Department of Corrections under Subsection (3);
(i) rehabilitation of the defendant through treatment is probable, based upon evidence provided by a treatment professional who has been approved by the Department of Corrections under Subsection (3) and who has accepted the defendant for treatment;
(j) prior to being sentenced, the defendant has undergone a complete psychological evaluation conducted by a professional approved by the Department of Corrections and:
(i) the professional's opinion is that the defendant is not an exclusive pedophile and does not present an immediate and present danger to the community if released on probation and placed in a residential sexual abuse treatment center; and (ii) the court accepts the opinion of the professional;
(k) if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian of the child victim, the defendant shall, in addition to establishing all other conditions of this section, establish it is in the child victim's best interest that the defendant not be imprisoned, by presenting evidence provided by a treatment professional who:
(i) is treating the child victim and understands he will be treating the family as a whole; or
(ii) has assessed the child victim for purposes of treatment as ordered by the court based on a showing of good cause; and
(l) if probation is imposed, the defendant, as a condition of probation, may not reside in a home where children younger than 18 years of age reside for at least one year beginning with the commencement of treatment, and may not again take up residency in a home where children younger than 18 years of age reside during the period of probation until allowed to do so by order of the court.
(2) A term of incarceration of at least 90 days is to be served prior to treatment and continue until the time when bed space is available at a residential sexual abuse treatment center as provided under Subsection (3) and probation is to be imposed for up to a maximum of ten years.
(3) (a) The Department of Corrections shall develop qualification criteria for the approval of the sexual abuse treatment programs and professionals under this section. The criteria shall include the screening criteria employed by the department for sexual offenders.
[...]


Institutional Abuse Loopholes
Children who are taken into state custody are often very vulnerable to abuse, especially when confined to an institutional setting. Yet, rather than afford them extra protections from exploitation and abuse, many state laws reward sexual predators who are also state employees. Here are some examples of institutional abuse loopholes:

Maryland
3-314. Sexual conduct between correctional or Department of Juvenile Services employee and inmate or confined child.
[...]
(c) Same - Department of Juvenile Services employee with confined child.- An employee or licensee of the Department of Juvenile Services may not engage in vaginal intercourse or a sexual act with an individual confined in a child care institution licensed by the Department, a detention center for juveniles, or a facility for juveniles listed in Article 83C, 2-117(a)(2) of the Code.
(d) Penalty.- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $3,000 or both.
(e) Sentencing.- A sentence imposed for violation of this section may be separate from and consecutive to or concurrent with a sentence for another crime under 3-303 through 3-312 of this subtitle.

Virginia
18.2-64.1. Carnal knowledge of certain minors.

If any person providing services, paid or unpaid, to juveniles under the purview of the Juvenile and Domestic Relations District Court Law, or to juveniles who have been committed to the custody of the State Department of Juvenile Justice, carnally knows, without the use of force, any minor fifteen years of age or older, when such minor is confined or detained in jail, is detained in any facility mentioned in 16.1-249, or has been committed to the custody of the Department of Juvenile Justice pursuant to 16.1-278.8, knowing or having good reason to believe that (i) such minor is in such confinement or detention status, (ii) such minor is a ward of the Department of Juvenile Justice, or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such confinement, detention, or custody, he shall be guilty of a Class 6 felony.
For the purposes of this section, "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse, and animate and inanimate object sexual penetration.

[Note: In Virginia, a Class 6 felony is the lightest felony classification, equivalent to stealing a cable television signal.]


Sentencing Alternative Program Loopholes
In some states, preferential treatment for criminals who sexually assault children in their care is elaborate. These laws are often based on theories promoted by the sex offender treatment industry that criminals who sexually abuse their own children are not true "pedophiles," and are thus uniquely amenable to treatment. One of the most striking examples of these legal schemes today is Washington state, where the Special Sex Offender Sentencing Alternative (SSOSA) is well-entrenched. SSOSA is available to offenders who victimize children outside the family, but only when they have an "established relationship" with their victim. A 2001 report done for the state's Department of Corrections found that some in the criminal justice system there called SSOSA a "middle-aged white man's sentence" because of the type of offenders likely to get preferential treatment.

Washington RCW 9.94A.670 Special sex offender sentencing alternative.
[...]
(2) An offender is eligible for the special sex offender sentencing alternative if:
(a) The offender has been convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense. If the conviction results from a guilty plea, the offender must, as part of his or her plea of guilty, voluntarily and affirmatively admit he or she committed all of the elements of the crime to which the offender is pleading guilty [...]
(b) The offender has no prior convictions for a sex offense [...]
(c) The offender has no prior adult convictions for a violent offense that was committed within five years [...]
(d) The offense did not result in substantial bodily harm to the victim; [...]
(e) The offender had an established relationship with, or connection to, the victim such that the sole connection with the victim was not the commission of the crime; and
(f) The offender's standard sentence range for the offense includes the possibility of confinement for less than eleven years.
(3) If the court finds the offender is eligible for this alternative, the court, on its own motion or the motion of the state or the offender, may order an examination to determine whether the offender is amenable to treatment.
[...]
(b) The examiner shall assess and report regarding the offender's amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided [...]
(4)...(a) The court shall order the offender to serve a term of confinement of up to twelve months [...]
(b) The court shall place the offender on community custody for the length of the suspended sentence, the length of the maximum term imposed pursuant to RCW 9.94A.712, or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department under RCW 9.94A.720.[...]
(7)(a) The sex offender treatment provider shall submit quarterly reports on the offender's progress in treatment to the court and the parties. The report shall reference the treatment plan and include at a minimum the following: Dates of attendance, offender's compliance with requirements, treatment activities, the offender's relative progress in treatment, and any other material specified by the court at sentencing.
(b) The court shall conduct a hearing on the offender's progress in treatment at least once a year
[...]


Diversion Loopholes
Most child sexual abuse cases, especially those within the family, never make it to criminal courtrooms at all. Crimes against children are rejected for prosecution or adjudication behind the scenes every day across America. In many states, laws on the books spell out the process for diverting child sexual abuse cases... especially those within the family. Often, diversion programs end with all charges being dropped or a conviction expunged from the record. Perhaps no diversion law is more extreme and bizarre than Hawaii's expedited sentencing program (below), which requires police to read incest suspects their special rights:

Hawaii
706-606.3 Expedited sentencing program [...]
(1) A person who has committed intra-family sexual assault may be considered for the expedited sentencing program in accordance with this section. As used in this section, "intra-family" sexual assault means any criminal offense of felony sexual assault under section 707-730, 707-731, or 707-732, or incest, as defined in section 707-741, in which the victim of the offense is related to the defendant by consanguinity or marriage, or resides in the same dwelling unit as the defendant, and the victim was, at the time of the sexual assault, under the age of eighteen.
(2) The police department of the county in which the sexual assault took place or any other appropriate investigative law enforcement agency shall confer with the appropriate prosecuting authority. If the prosecuting authority determines that it is appropriate to provide notice of the expedited sentencing program to the defendant, the police department or other appropriate investigative law enforcement agency shall give the defendant written notice of the existence of the expedited sentencing program provided in this section. The notice provision shall not be a prerequisite to questioning the defendant. The notice provision shall not obligate the prosecuting authority to issue a statement of "no objection" when considering the defendant for the expedited sentencing program.
(3) The written notice shall state:
"YOU ARE ADVISED TO SEEK LEGAL COUNSEL IMMEDIATELY. IF YOU CANNOT AFFORD PRIVATE COUNSEL, CONTACT THE OFFICE OF THE PUBLIC DEFENDER. FAILURE TO CONTACT AN ATTORNEY MAY DISQUALIFY YOU FROM THIS PROGRAM. A copy of section 706-606.3, Hawaii Revised Statutes, is attached to this notice. You are under investigation for a felony sexual assault against a minor. Upon completion of this investigation, if there is sufficient basis to believe that you have committed a sexual assault, the case will be referred to the appropriate prosecuting authority for review and possible institution of criminal charges. Hawaii law provides for a range of ordinary prison sentences for felony sexual assault ranging from five years up to twenty years, or life imprisonment, depending upon the offense. However, section 706-606.3, Hawaii Revised Statutes, provides that a person who commits a sexual assault upon a minor but who admits guilt, cooperates with the prosecuting authority, and participates in appropriate assessment and treatment may be considered for the expedited sentencing program. A person who is sentenced in accordance with the expedited sentencing program may be sentenced to a term of probation. Probation may be revoked, however, for failure to comply with the terms of the probation pursuant to section 706-625. To qualify for consideration for the expedited sentencing program, your legal counsel first must request from the office of the prosecuting authority named in this notice a written statement as to whether that office has any objection to your being considered for the expedited sentencing program. THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS YOUR LEGAL COUNSEL HAS RECEIVED A WRITTEN STATEMENT THAT THE APPROPRIATE PROSECUTING AUTHORITY HAS NO OBJECTION TO YOUR BEING CONSIDERED FOR THE EXPEDITED SENTENCING PROGRAM AND THE REQUEST FOR THAT WRITTEN STATEMENT WAS MADE WITHIN FOURTEEN DAYS OF YOUR RECEIPT OF THIS NOTICE. FURTHER, THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS, ONCE YOUR LEGAL COUNSEL HAS RECEIVED THIS NOTICE, YOU HAVE MADE A GOOD FAITH EFFORT TO AVOID THE NECESSITY OF THE CHILD BEING REMOVED FROM THE FAMILY HOME, INCLUDING BUT NOT LIMITED TO MOVING AND REMAINING OUT OF THE FAMILY HOME UNTIL OTHERWISE ORDERED BY THE COURT."
The written notice also shall provide:
(a) Instructions on how to contact the appropriate prosecuting authority, including any necessary addresses and telephone numbers; and
(b) The name of the person delivering the notice and the date it was given to the alleged offender.
(4) A defendant shall not be considered by the court for the expedited sentencing program under this section unless the defendant's legal counsel requests within fourteen days of the defendant's receipt of the written notice, that the defendant be considered for the expedited sentencing program, and defendant's counsel subsequently receives a written statement from the appropriate prosecuting authority stating that it has no objection to the defendant being considered for the expedited sentencing program in accordance with this section. Additionally, each of the following criteria shall be met:
(a) After receiving the required written notice, the defendant made a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;
(b) The victim of the sexual assault was under the age of eighteen when the sexual assault was committed;
(c) The defendant was never previously sentenced under this section and has never been convicted of felony sexual assault under section 707-730, 707-731, or 707-732, or incest under section 707-741;
(d) A guardian ad litem appointed in a family court proceeding, or a person assigned by the Children's Advocacy Center to serve as guardian ad litem, agreed that it would be in the best interest of the child for the defendant to be considered for the expedited sentencing program. No prosecuting authority shall issue a statement of no objection without this prior agreement; and
(e) The defendant has complied with the requirements for consideration for the expedited sentencing program as established in subsection (6); provided that at sentencing the prosecuting authority may oppose the defendant's participation in the expedited sentencing program if the prosecuting authority determines that the defendant has failed to satisfy the criteria under subsection (6).
(5) The prosecuting authority and the child's guardian ad litem may consult with any other appropriate agency or individual to assist in a decision whether to provide a written statement of "no objection" prior to the defendant being considered for sentencing under the expedited sentencing program.
(6) Within seven business days of receipt of the written notice stating that the appropriate prosecuting authority has no objection to the defendant being considered for the expedited sentencing program in accordance with this section, unless the prosecuting authority waives compliance with the time limit, the defendant shall:
(a) Continue to make a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;
(b) Admit to commission of the sexual assault to the police department of the county in which the assault took place or other appropriate investigative law enforcement agency;
(c) Provide to the appropriate prosecuting authority a written waiver of indictment and preliminary hearing for any criminal charges arising from the sexual assault; and
(d) Enter a voluntary plea of guilty to the charge or charges alleged upon or following arraignment.
(7) Notwithstanding sections 706-606.5, 706-620, 706-659, 706-660, and 706-660.2, a defendant considered for the expedited sentencing program under this section when sentence is imposed may be sentenced to a term of probation pursuant to section 706-624; provided that if the defendant is sentenced to a term of imprisonment as a condition of probation, the term of imprisonment may allow for the defendant's retention of employment.
(8) The term of probation under this section shall be as follows:
(a) For an offense under section 707-730 or 707-731, twenty years; and
(b) For an offense under section 707-732 or 707-741, ten years.
(9) In addition to the conditions of probation provided under section 706-624, a sentence under this section shall include that the defendant shall:
(a) Participate in court approved, appropriate sex offender assessment and treatment that shall conform to the guidelines developed by the adult probation division of the appropriate circuit court, until clinically discharged; provided that:
(i) The prosecuting authority shall be provided notice and the opportunity for a hearing prior to any authorization for treatment discontinuance by the court or the adult probation division;
(ii) The defendant shall pay for the cost of the assessment and treatment to the extent that the defendant has the ability to do so; and
(iii) A lack of assessment and treatment resources shall result in the defendant not being considered for the expedited sentencing program;
(b) Provide a written waiver of confidentiality for any assessment, treatment, counseling, therapy, or other program ordered as a condition of probation;
(c) Comply with all orders entered in a proceeding pursuant to chapter 587; and
(d) Comply with other condition deemed by the court to be reasonably necessary for the protection of the victim of the sexual assault or the rehabilitation of the defendant.
(10) There shall be a rebuttable presumption in favor of the court imposing a sentence in accordance with this section when a defendant qualifies for the expedited sentencing program, and written notice of "no objection" is issued by the prosecuting authority. The court shall provide written findings of fact setting forth specific reasons justifying imposition of a sentence that is not in accordance with this section.


Incest Statutes Loopholes
Note: Penalties below are not necessarily the minimum penalties. Other provisions in the law might allow probation.

Alabama, Code of Ala. 13A-13-3
Class C felony. Compare to Rape in the first degree (13A-6-61)

Alaska, Alaska Stat. 11.41.50
Class C felony. Compare to Sexual abuse of a minor in the first degree

Delaware, 11 Del C 766
Class A misdemeanor. Compare to Rape (773)

District of Columbia, D.C. Code 22-1901
Imprisonment not more than 12 years. Compare to First degree child sexual abuse (22-3008)

Florida, Fla Stat 826.04
Felony in the third degree. Compare to Lewd and lascivious molestation (Life)

Hawaii, H.R.S. 707-741
Class C felony. Compare to Sexual assault in the first degree (707-730)

Idaho, Idaho Code 18-6602
Imprisonment up to 25 years. Compare to Rape or Lewd conduct with minor

Indiana, Burns Ind Code Ann 35-46-1-3
Class C felony. Compare to Child molesting (IC 35-42-3)

Iowa, Iowa Code 726.2
Class D felony. Compare to Sexual abuse in the second degree (709.3)

Kentucky, K.R.S. 530.020
Class C felony. Compare to Rape in the first degree (510.040)

Louisiana, La R.S. 14:78
Fine, up to 5 years, up to 15 years. Compare to Aggravated rape (RS 14 42)

Maine, 17-A M.R.S. 556
Class D crime. Compare to Gross sexual assault (253(1)(B)

Maryland, Md Criminal Law Code Ann 3-323
Imprisonment of 1-10 years. Compare to Rape.

Massachusetts, ALM GL ch. 272 17
Imprisonment up to 2 ? years. Up to 20 years. Compare to Rape and abuse of child (Chapter 265: Section 23)

Minnesota, Minn. Stat. 609.395 (365)
Imprisonment up to 10 years. Compare to Criminal sexual conduct (609.342)

Missouri, 568.020 R.S.Mo
Class D felony. Compare to Rape or Statutory rape (566.032.1)

Nebraska, R.R.S. Neb. 28-703
Class 3 felony. Compare to Sexual assault, first degree (28-319)

Nevada, NRS 201.180
Imprisonment 2-10 years. Compare to Sexual assault (NRS 200.366)

New Mexico, N.M. Stat. 30-10-3
Third degree felony. Compare to Criminal sexual penetration

North Dakota, N.D. Code 12.1-20-11
Class C felony. Compare to Gross sexual imposition (12.1-20-03)

Ohio, ORC 2907.03
Third degree felony. Compare to Rape (2907.02)

Oklahoma, 21 Okl. St. 885
Imprisonment up to 10 years. Compare to Rape in first degree.

Oregon, ORS 163.525
Class C felony. Compare to Rape in first degree.

Pennsylvania, 8 Pa.C.S. 4302
Second degree felony. Compare to Rape (3121)

South Carolina, S.C. Code 16-15-20
Fine or up to 1 year in jail. Compare to Lewd act upon a child (16-15-140).

South Dakota, S.D. Codified Laws 22-22-19.1
Class 5 felony. Compare to Sexual contact with child under 16 (22-22-7)

Tennessee, Tenn.Code 39-15-302
Class C felony. Compare to Rape of a child (39-13-522.

Texas, Tex. Penal Cod. 25.02
Third degree felony. Compare to Indecency with a child (21.11)

Vermont, 13 V.S.A. 205
Fine or up to 5 years in prison. Compare to Sexual assault (3252).

Virginia, Va. Code 18.2-366 Class 3 felony. Compare to Rape (18.2-61)

Washington, ARCW 9A.64.020
Class B felony. Compare to Rape of a child (RCW 9A.44.073)

West Virginia, W. Va.Code 61-8-12
Imprisonment for 5-15 years. Compare to Sexual abuse in the first degree (61-8B-7)

Wisconsin, Wis. Stat. 944.06
Class C felony. Compare to First degree sexual assault (948.02(1).

Wyoming, Wyo. Stat. 6-4-402
Fine or up to 5 years. Compare to Sexual assault in the second degree.