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incest loophole February 10, 2007 6:12 AM

Is your state here? Incest loopholes 5:44 AM
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 e  [ send green star]  [ accepted]
 
 February 10, 2007 10:34 AM

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 require  [ send green star]  [ accepted]
 
 February 10, 2007 10:37 AM

Who makes up these damn laws?

Some are so friggin ridiculous! Thanks for posting.

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 February 10, 2007 10:40 AM



Sentencing Alternative Program Loopholes

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 pe  [ send green star]  [ accepted]
 
crazy laws February 10, 2007 10:42 AM

I don't know who made them up but they need to be changed.

I got them from PROTECT organization  They have gotten a lots of them changed in a lot of states.  So often the public is unaware of such things

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PROTECT CHECK THEM OUT February 10, 2007 10:51 AM

There are no Amber Alerts for children who are held hostage in their own homes. Yet, an estimated 90% of all victims of child sexual abuse are victims of adults they know and trust. Most often, the predators are the very adults who should love and protect them: parents and other family members. Many times they are others in a child's circle of trust, such as coaches, teachers, counselors and clergy. And very often, our laws actually protect these predators with the lightest sentencing of all. Since 2002, PROTECT has fought legal loopholes protecting criminals who abuse positions of trust or authority. From Arkansas to Illinois and California to New York, we have reformed outrageous laws in six states… and we're just getting started.

 

PROTECT-New York
Wins Big for Children!
 
  
  
  In a powerful and exclusive new essay, PROTECT national advisory board member Andrew Vachss has written about PROTECT's latest victory, in his home state of New York. It was a victory close to the attorney and author's heart. Another PROTECT national advisory board member, Ruby Andrew, has written the most authoritative and comprehensive analysis ever of the history and legal underpinnings of the incest loophole laws that PROTECT has been fighting. On this page, we have also included a link to our partial roundup of American laws that reward the most unthinkable, and criminal, betrayal of children.
 
 
PROTECT  -  ProtectPAC
46 Haywood Street, Suite 315, Asheville, NC 28801
phone: (828) 350-9350  -  email: info@protect.org  
   
©2002-2006 The National Association to PROTECT Children.  All rights reserved.
PROTECT is a national membership association structured as an IRS social welfare organization, or 501(c)(4).  
 

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PROTECT February 12, 2007 12:55 PM

Excellent Posts, Defend C, feel free to post at IAHRA as well--as we cover this topic too.

As for PROTECT, I'm a member and I encourage everyone who can to join the only PAC for children: PROTECT 

PROTECT delivers results and is the ONLY organization that is effective in changing these abominable laws, whether antiquated or directly lobbied into law by the child-abuser/sex-offender/batterer lobby (and it IS a lobby).

I can't urge people enough to join PROTECT. Again, it is the ONLY organization that has brought about tangible change for abused children and the backbone to deliver results.

Despite these successes, PROTECT needs as many members and voices as possible as this is a brutal, uphill battle... but it's the most important battle there is: protecting children.

Feel free to contact me with any questions you may have and please do join PROTECT

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