Child sexual abuse laws in the United States

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Child sexual abuse laws in the United States have been enacted as part of the nation's child protection policies.

Contents

Child maltreatment

Child sexual abuse has been recognized specifically as a type of child maltreatment in U.S. federal law since the initial Congressional hearings on child abuse in 1973. [1] Child sexual abuse is illegal in every state, [2] as well as under federal law. [3] Among the states, the specifics of child sexual abuse laws vary, but certain features of these laws are common to all states. [4]

Kansas v. Hendricks

The U.S. Supreme Court ruled in Kansas v. Hendricks that a predatory sex offender can be civilly committed upon release from prison. [5] The Supreme Court ruled in Stogner v. California that California's ex post facto law, a retroactive extension of the statute of limitations for sexual offenses committed against minors, is unconstitutional. [6]

The case requires law enforcement to release information about sex offenders. It is a modification of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which specifies that information about both sexual offenders and individuals committing crimes against children must be released.

Between adults, most sexual activity does not constitute a criminal offense, unless one of the adults does not consent to the activity. In contrast, minors are unable to give consent under the law. Indeed, the term "minor" refers to a person who has not yet reached majority, the age at which one may give consent in any legal matter (for example, a minor cannot make a valid contract). [7] However, actual laws and the maximum ages that constitute breach of law vary by state. A person engaging in sexual activity with a minor below these proscribed ages (16–18), regardless of that minor's seeming "consent" or compliance, commits an offense (terminology varies). In most states, much more severe offenses and/or sentences exist for cases with young children, approximately under 12–13.

Many states [8] include in their penal codes a "Romeo and Juliet" exception for cases where sexual activity occurs between a young adult and a minor whose ages are within a few years of each other. [9] This exception typically bars charging the young adult with a sex offense, if the young adult did not use force or coercion on the minor and the minor is a teenager. [10]

Incest

Incest is a criminal offense in most states. [11] In the majority of states with incest laws, a perpetrator of intrafamilial child sexual abuse may be prosecuted for incest instead of child sexual abuse offenses. [12] Such crimes are most commonly addressed in family courts, as opposed to criminal courts, although no laws prohibit simultaneous proceedings in both forums. [13] A related perpetrator, if convicted under the state's incest law, will receive a significantly lower penalty for committing the same acts that constitute criminal child sexual abuse in that state. [14] Recognizing this loophole, some states have altered their penal codes to prohibit prosecution of intrafamilial child sexual abuse under the incest statutes. In these states, which include Arkansas, [15] California, [16] Illinois, [17] New York, [18] and North Carolina, [19] all perpetrators of sexual offenses against children are prosecuted under the same laws, without regard to whether they are related to their victims. These states retain their incest laws only for their original purpose: [20] to prohibit sexual activity between those too closely related by blood. [21]

Penalties for child sexual abuse

There are an estimated sixty million victims of child sexual abuse in America. [22] Penalties for child sexual abuse vary with the specific offenses for which the perpetrator has been convicted. Criminal penalties may include imprisonment, fines, registration as a sex offender, and restrictions on probation and parole. Civil penalties may include liability for damages, injunctions, involuntary commitment, and, for perpetrators related to their victims, loss of custody or parental rights.

During the last three decades many state legislatures [14] have increased prison terms and other penalties for child sex offenders. This trend toward more stringent sentences generally targets those perpetrators who are repeat offenders, [23] who victimize multiple children, [24] or who stood in a position of trust with respect to their victims, such as a guardian, parent, pastor, or teacher. [25] In Colorado, lawmakers proposed a new law allowing the death penalty for repeat offenders. However, the bill was rejected by the state senate. Social workers argued that in intra-familial abuse, the victims could be intimidated by their abuser into thinking their family member would be killed if they reported the abuse.

Kennedy v. Louisiana

The USA Supreme Court in a 5–4 judgment penned by Justice Anthony Kennedy on June 25, 2008, prohibited executions of individuals convicted of child rape: "the death penalty is not a proportional punishment for the rape of a child, despite the horrendous nature of the crime." Kennedy reserved capital punishment only "for crimes that involve a victim's death." In this Louisiana case, Patrick Kennedy raped his 8-year-old stepdaughter, resulting in serious injuries which required surgery. 44 states prohibit death penalty for any kind of rape, but Louisiana and 4 other states permit it for child rape — Montana, Oklahoma, South Carolina and Texas. There's disagreement over the status of a Georgia law permitting execution for child rape, but Justice Kennedy ruled it was still in force. The court, thus declared unconstitutional the Louisiana statute (La. Stat. Ann. §14:42, West 1997 and Supp. 1998): "the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death." [26] [27] [28]

Opponents have criticized the decision, noting an admission by the Justice Department that they had failed to note that the US Congress had made child rape a capital offense under military law as recently as 2006, which has been noted as contradicting the "evolving standards of decency" justification for the decision. [29]

Related Research Articles

<span class="mw-page-title-main">Age of consent</span> Minimum age for sexual activities

The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is considered the victim, and their sex partner the offender, although some jurisdictions provide exceptions through "Romeo and Juliet laws" if one or both participants are underage, and are close in age.

Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.

Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.

The crime against nature or unnatural act has historically been a legal term in English-speaking states identifying forms of sexual behavior not considered natural or decent and are legally punishable offenses. Sexual practices that have historically been considered to be "crimes against nature" include masturbation, sodomy and bestiality.

The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.

The ages of consent vary by jurisdiction across Europe. The ages of consent – hereby meaning the age from which one is deemed able to consent to having sex with anyone else of consenting age or above, provided that the encounter does not involve commercial sex or a person in a recognized position of authority – are between 14 and 18. Some countries have close-in-age exceptions allowing partners close in age to engage in sexual acts. The vast majority of countries set their ages in the range of 14 to 16; only four countries, Cyprus (17), the Republic of Ireland (17), Turkey (18), and the Vatican City (18), set an age of consent higher than 16. The laws can also stipulate which specific activities are permitted or specify the age at which one or other sex can legally participate. The highlighted age is that from which a young person can lawfully engage in a non-commercial sexual act with an older person, regardless of their age difference, provided the older one is not in a position of power, a relative, or is committing another form of exploitation. All jurisdictions in Europe have equal and gender-neutral age limits.

<span class="mw-page-title-main">Ages of consent in North America</span> Age of consent for sexual activity in countries in North America

In North America, the legal age of consent relating to sexual activity varies by jurisdiction.

<span class="mw-page-title-main">Ages of consent in Africa</span> Ages of consent for sexual activity in the countries of Africa

The age of consent in Africa for sexual activity varies by jurisdiction across the continent, codified in laws which may also stipulate the specific activities that are permitted or the gender of participants for different ages. Other variables may exist, such as close-in-age exemptions.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

<span class="mw-page-title-main">Ages of consent in South America</span> Ages of consent for sexual activity in jurisdictions of South America

The age of consent for sexual activity refers to an age at or above which an individual can engage in unfettered sexual relations with another who is of the same age or older. This age varies by jurisdiction across South America, codified in laws which may also stipulate the specific activities that are permitted or the gender of participants for different ages. Other variables may exist, such as close-in-age exemptions.

Laws regarding incest vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.

Laws against child sexual abuse vary by country based on the local definition of who a child is and what constitutes child sexual abuse. Most countries in the world employ some form of age of consent, with sexual contact with an underage person being criminally penalized. As the age of consent to sexual behaviour varies from country to country, so too do definitions of child sexual abuse. An adult's sexual intercourse with a minor below the legal age of consent may sometimes be referred to as statutory rape, based on the principle that any apparent consent by a minor could not be considered legal consent.

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act. It is also considered as statutory rape even if the victim is above age of consent, and if the perpetrator is in an authority position such as a teacher, a doctor or a parent.

<span class="mw-page-title-main">Ages of consent in the United States</span> U.S. law on age of consent to sexual activity

In the United States, each state and territory sets the age of consent either by statute or the common law applies, and there are several federal statutes related to protecting minors from sexual predators. Depending on the jurisdiction, the legal age of consent is between 16 and 18. In some places, civil and criminal laws within the same state conflict with each other.

In the United States, the law for murder varies by jurisdiction. In many US jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first-degree murder and felony murder are the most serious, followed by second-degree murder and, in a few states, third-degree murder, which in other states is divided into voluntary manslaughter, and involuntary manslaughter such as reckless homicide and negligent homicide, which are the least serious, and ending finally in justifiable homicide, which is not a crime. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

Marital rape is illegal in all 50 US states, though the details of the offence vary by state.

In the United States, the legality of incest varies widely between jurisdictions regarding both the definition of the offense and penalties for its commission.

The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts and is thus the minimum age of a person with whom another person is legally permitted to engage in sexual activity. The distinguishing aspect of the age of consent laws is that the person below the minimum age is regarded as the victim, and their sex partner is regarded as the offender, unless both are underage.

Rape laws vary across the United States jurisdictions. However, rape is federally defined for statistical purposes as:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

References

  1. ↑ Child Abuse Prevention and Treatment Act of 1974, (most recently reauthorized by Public Law No.108-36, (2003)).
  2. ↑ State Statutes – Child Abuse and Neglect, Archived 2007-06-02 at the Wayback Machine Children's Bureau, U.S. Department of Health and Human Services.
  3. ↑ Index of Child Welfare Laws, Children's Bureau, U.S. Department of Health and Human Services.
  4. ↑ Definitions of Child Abuse and Neglect, Summary of State Laws, Archived 2007-10-25 at the Wayback Machine National Clearinghouse on Child Abuse and Neglect Information, U.S. Department of Health and Human Services.
  5. ↑ "Kansas v. Hendricks 521 U.S. 346 (1997)". supreme.justia.com. Retrieved 2007-10-19.
  6. ↑ "Stogner v. California (2003)". oyez.org. Retrieved 2007-12-30.
  7. ↑ The Age of Majority, T.E. James, American Journal of Legal History, vol. 4 (1960).
  8. ↑ See, for example, Dixon v. State, 278 Ga. 4, (2004), stating that 38 states have such a law.
  9. ↑ A Step in the Right Direction, Sabrina A. Perelman, Georgetown Journal of Gender & Law, vol.7 (2006).
  10. ↑ Consensual Sex and Age of Sexual Consent, Archived April 24, 2009, at the Wayback Machine Colette S. Peters, Colorado Legislative Council Brief, 2002.
  11. ↑ List of Child Sexual Abuse Loopholes in State Law. Archived October 26, 2008, at the Wayback Machine
  12. ↑ The Incest Loophole, Andrew Vachss, New York Times, November 20, 2005.
  13. ↑ See, for example, In re S.A., 37 P.3d 1172 (Utah Ct. App., 2001)
  14. 1 2 Child Sexual Abuse and the State, Ruby Andrew, "UC Davis Law Review". Archived from the original on 2011-05-02. Retrieved 2011-03-20. UC Davis Law Review, vol. 39, 2006.
  15. ↑ Arkansas Act 1469 (2003).
  16. ↑ California Penal Code § 285.
  17. ↑ Illinois Public Act 93-0419 Archived August 3, 2009, at the Wayback Machine (2003).
  18. ↑ New York Penal Law Archived February 13, 2010, at the Wayback Machine § 255.27.
  19. ↑ North Carolina General Statute § 14-178.
  20. ↑ Incest: The Nature and Origin of the Taboo, by Emile Durkheim (tr.1963)
  21. ↑ Kinship, Incest, and the Dictates of Law, Henry A. Kelly, 14 American Journal of Jurisprudence, 1969.
  22. ↑ Hall, S.P. (2009). Anger, Rage and Relationship: An Empathic Approach to Anger Management. Taylor & Francis. p. 19. ISBN   978-1-135-27540-2 . Retrieved 2023-08-28.
  23. ↑ See, for example,People v. Murphy, 19 P.3d 1129 (2001).
  24. ↑ See, for example, People v. Hammer, 69 P.3d 436 (2003)
  25. ↑ See, for example, Washington v. Grewe, 813 P.2d 1238 (1991).
  26. ↑ "Unbowed, politicians vow to execute child rapists - NY Daily News". nydailynews.com. 26 June 2008. Retrieved 17 June 2018.
  27. ↑ online.wsj.com, Justices Overturn the Death Penalty
  28. ↑ KENNEDY v. LOUISIANA, No. 07–343, June 25, 2008
  29. ↑ Greenhouse, Linda (July 3, 2008). "Justice Dept. Admits Error in Not Briefing Court". The New York Times. Retrieved April 28, 2010.
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