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June 5, 2009

Noting differences in sentences for intra- and extra-family sex abuse

This local article from Minnesota, headlined "Justice is unequal in sex abuse: Those who molest family members get lighter sentences than outsiders, data show," documents a sentencing story that I suspect is not uncommon in most jurisdictions.  Here areis how the effective (and long) article starts:

A young woman in Hennepin County accuses her father of sexually abusing her since she was 12 and impregnating her at age 18. A 13-year-old Ramsey County girl tells a school counselor that her father had been touching her while her mother was in the hospital. A 15-year-old Anoka County boy reports to police that his stepfather, convicted of a sex offense years earlier, committed sex acts with him, once in exchange for help with a video game.

In each case, Minnesota sentencing guidelines called for a seven-year or 12-year prison sentence. Instead, each defendant pleaded guilty and was sentenced to a year or less in jail and a long probation.

Such lighter sentences are given more often to defendants abusing children in their own families or households than to those who abuse outside their families, a Star Tribune analysis of nearly 1,500 child sex abuse cases shows.

From 2001 to 2007, 33 percent of family or household child sex abuse defendants facing prison time ended up with probation, compared with 26 percent of those abusing outside their families. In the most serious cases where victims were between 13 and 15 years old, the difference was even greater: 37 percent versus 24 percent.

That sentencing disparity troubles some legislators and advocates for victims. "It's really unfortunate because ... girls and boys who have experienced incest are somehow valued less than girls and boys who have experienced abuse at the hands of neighbors and coaches and teachers and other people," said Elizabeth Saewyc, a nursing professor in Canada who studies abuse victims in research with Children's Hospital of St. Paul.

Even family members who initially agreed to lighter sentences for abusers -- to protect children from having to testify or to keep a family wage earner working -- sometimes come to feel probation sentences aren't enough as they watch the effect of abuse on the child victim play out for years.

But others in the justice system say family relationships make the cases extra difficult to prosecute. Sending a defendant to treatment with decades of probation is still a tough penalty and often right for the family in the long run, they say. "When you come down to trying to figure out what to do with these cases, you have to get realistic and you have to be pragmatic," said Pat Diamond, deputy Hennepin County attorney.

June 5, 2009 at 10:16 AM | Permalink


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I thought what was most interesting is what the article didn't mention. Namely, that stranger danger is a big myth and that the large majority of child sex abuse happens by a relative. Without that understanding it's difficult to get a proper perspective on the problem.

We engage in a great deal of hysteria and witch hunting over what are in fact outliers and then, as this article reminds us, sweep the real tragedy under the rug.

I have always felt that child sex abuse by relatives should be punished more harshly (way more harshly) than strangers precisely because the betrayal is far more intimate and the psychological damage much greater. Unfortunately, that doesn't happen because as the prosecutor points out, there is a need to be "pragmatic". By which he means what is going to cast him in the best light in the media. And it's easy to conceive of the stranger as a bogey man, but "Dad" or "Mom" just doesn't fit the bill.

Posted by: Daniel | Jun 5, 2009 11:54:09 AM

I'm inclined to agree with some of the thrust of Daniel's comment. The reality is that an intra-familial molester is not as much a danger to the rest of us. Therefore, there's a natural inclination of the prosecutors to be less tough. I'm not passing judgment one way or the other. The "stranger danger" is not a myth. These animals kill kids, and they need to be dealt with. There ought to be a mandatory death penalty for anyone who kills a kid in the course of sexual predation.

Posted by: federalist | Jun 6, 2009 11:08:16 AM

Look for a death penalty law in Michigan soon and the state legislature may pass it and other laws before the facts are known. Who can argue with the "anger, sorrow" of a missing 5-year-old found dead?

Posted by: George | Jun 6, 2009 11:26:43 AM

As a convicted sex offender with a family offence I need to say that not every case is true. My 15 year old lied and ruined my life. No matter my response it was turned against me. Yet I find no sense of right and wrong in the trial process only plea bargains. I know if your not guilty why plea? You face 2 years probation or 10 years in prison.. And try to overcome the media stigma (EG) To catch a predator, have a judge tell you if convicted he will show no mercy.and then see how you choose. In this process the child's word is law and there are too many self-proclaimed vigalanties ready to convict. Its all centered around fear on both sides.

Posted by: Tim | Jun 7, 2009 1:02:53 AM

I've written about this issue as well as other non-stranger violent crime in Violence Between Lovers, Strangers, and Friends, 85 WASH. U. L. REV. 343 (2007) (available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=984307). I wonder whether the stranger danger myth and the difficulties associated with intra-familial sex abuse prosecutions might also be fueling the modern increase in child pornography prosecutions. Possession of child pornography fits the stranger danger model --- most possessors are looking at pictures of children they do not know --- and it does not involve the same evidentiary problems as actual child sex abuse cases.

Posted by: CBHessick | Jun 7, 2009 7:24:37 PM

Brilliant! I had no idea anyone was actually publishing in this area. Kudos to you. Seriously, great job.

I would simply argue that the reason we treat stranger danger more seriously is simply...and for no other reason...that it's easier to prosecute. As ugly as it sounds, it's the most efficient use of resources. The more intimate the relationship, the more credibility issue come into play and the more difficult an "objective" notion of justice becomes. That costs to much.

Posted by: Daniel | Jun 8, 2009 12:23:18 PM

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