Is your state here? Incest loopholes February 10, 2007 5:44 AM
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)
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.
(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:
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.
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 per
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PROTECT.ORG February 10, 2007 10:52 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.
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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.
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