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Child sexual abuse laws in the United States have been enacted as part of the nation's child protection policies. The U.S. Supreme Court held in Esquivel-Quintana v. Sessions, 581 U.S. ___ (2017), that the victim in a "sexual abuse of a minor" conviction must be less than 16 years old.
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]
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 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 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,[22] who victimize multiple children,[23] or who stood in a position of trust with respect to their victims, such as a guardian, parent, pastor, or teacher.[24] 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.
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."[25][26][27]
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.[28]
^ Child Abuse Prevention and Treatment Act of 1974, (most recently reauthorized by Public Law No.108-36, (2003)).
^ 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.
^ Index of Child Welfare Laws, Children's Bureau, U.S. Department of Health and Human Services.
^ 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.
^ "Kansas v. Hendricks 521 U.S. 346 (1997)". supreme.justia.com. Retrieved 2007-10-19.
^ "Stogner v. California (2003)". oyez.org. Retrieved 2007-12-30.
^ The Age of Majority, T.E. James, American Journal of Legal History, vol. 4 (1960).
^ See, for example, Dixon v. State, 278 Ga. 4, (2004), stating that 38 states have such a law.
^ A Step in the Right Direction, Sabrina A. Perelman, Georgetown Journal of Gender & Law, vol.7 (2006).
^ Consensual Sex and Age of Sexual Consent, Archived April 24, 2009, at the Wayback Machine Colette S. Peters, Colorado Legislative Council Brief, 2002.
^ List of Child Sexual Abuse Loopholes in State Law. Archived October 26, 2008, at the Wayback Machine
^ The Incest Loophole, Andrew Vachss, New York Times, November 20, 2005.
^ See, for example, In re S.A., 37 P.3d 1172 (Utah Ct. App., 2001)
^ a b Child Sexual Abuse and the State, Ruby Andrew, "Archived copy". Archived from the original on 2011-05-02. Retrieved 2011-03-20.CS1 maint: archived copy as title (link) UC Davis Law Review, vol. 39, 2006.
^ Arkansas Act 1469 (2003).
^ California Penal Code § 285.
^ Illinois Public Act 93-0419 Archived August 3, 2009, at the Wayback Machine (2003).
^ New York Penal Law Archived February 13, 2010, at the Wayback Machine § 255.27.
^ North Carolina General Statute § 14-178.
^ Incest: The Nature and Origin of the Taboo, by Emile Durkheim (tr.1963)
^ Kinship, Incest, and the Dictates of Law, Henry A. Kelly, 14 American Journal of Jurisprudence, 1969.
^ See, for example,People v. Murphy, 19 P.3d 1129 (2001).
^ See, for example, People v. Hammer, 69 P.3d 436 (2003)
^ See, for example, Washington v. Grewe, 813 P.2d 1238 (1991).
^ "Unbowed, politicians vow to execute child rapists - NY Daily News". nydailynews.com. Retrieved 17 June 2018.
^ online.wsj.com, Justices Overturn the Death Penalty
^ KENNEDY v. LOUISIANA, No. 07–343, June 25, 2008
^ 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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Child-on-child sexual abuse is a form of child sexual abuse in which a prepubescent child is sexually abused by one or more other children or adolescents, and in which no adult is directly involved. While this includes when one of the children uses physical force, threats, trickery or emotional manipulation to elicit cooperation, it also can include non-coercive situations where the initiator proposes or starts a sexual act that the victim does not understand the nature of and simply goes along with, not comprehending its implications or what the consequences might be.[1] Child-on-child sexual abuse is differentiated from normative sexual play or anatomical curiosity and exploration (e.g. "playing doctor") because child-on-child sexual abuse is an overt and deliberate action directed at sexual stimulation, including orgasm.[2] When sexual abuse is perpetrated by one sibling upon another, it is known as "inter-sibling abuse".[3] When victims of inter-sibling child-on-child sexual abuse grow up, they often have distorted recall of the act, such as thinking it was consensual or that they were the initiator.[4]
In the case of child-on-child sexual abuse, young children who have not matured sexually are incapable of knowing about specific sex acts without an external source.[5][6][7] Consequently, children who initiate or solicit overtly sexual acts with other children most often have been sexually victimized by an adult beforehand,[5][6][8] or by another child who was in turn abused by an adult.[9][10] More than half have been victimized by two or more perpetrators.[7] In some instances, the perpetrating child was exposed to pornography or repeatedly witnessed sexual activity of adults at a very young age, and this can also be considered a form of child sexual abuse.[8]
In many cases, a child or adolescent may have no intent to cause any harm to another child, and they act merely on a passing impulse. However, this act may still result in harm to the other child and is a form of child-on-child sexual abuse.[11] Furthermore, children who had experienced an unwanted sexual approach may not understand that this act was crime against themselves.[12]
Child-on-child sexual abuse frequently goes unreported because it is not widely known about by the public,[2] and often occurs outside of adults' direct supervision. Even if known by adults, it is sometimes dismissed as harmless by those who do not understand the implications.[2] In particular, inter-sibling abuse is under-reported relative to the reporting rates for parent–child sexual abuse,[3] and disclosure of the incest by the victim during childhood is rare.[4]
Children who were sexually victimized by other minors, including inter-sibling abuse, show largely the same problems as children victimized by adults, including anxiety disorders, depression, substance abuse, suicide, eating disorders, post traumatic stress disorder, sleep disorders and difficulty trusting peers in the context of relationships.[1][13] The victim often thinks that the act was normal, including thinking they were the initiator or that they went through the act voluntarily.[4]
Major factors that affect the severity of symptoms include the use of force or coercion, the frequency of the abuse, and the invasiveness of the act.[14] An increased risk of victimization later in life has also been reported.[15]
The term minor sex offenders may be used for children under 18 years old that have initiated any non-consensual sexual activity with another person. This population may be viewed as a younger version of sexual perpetrators and may be assessed as part of a same group, when they represent a significant heterogenous group. For example, these children tend to exhibit different motivations for their actions than adult sexual offenders and they tend to respond more favorably to treatment.[12]
^ a b Shaw, J (2000). "Child on child sexual abuse: Psychological perspectives". Child Abuse & Neglect. 24 (12): 1591–1600. doi:10.1016/S0145-2134(00)00212-X. PMID 11197037.
^ a b c Loseke, Donileen R.; Gelles, Richard J.; Cavanaugh, Mary M. (2005). Current Controversies on Family Violence. Thousand Oaks, CA: Sage Publications Inc. ISBN 978-0-7619-2106-6.
^ a b John V. Caffaroa; Allison Conn-Caffaro (July–August 2005). "Treating sibling abuse families". Aggression and Violent Behavior. 10 (5): 604–623. doi:10.1016/j.avb.2004.12.001.
^ a b c Carlson, Bonnie E.; MacIol, Katherine; Schneider, Joanne (2006). "Sibling Incest: Reports from Forty-One Survivors". Journal of Child Sexual Abuse. 15 (4): 19–34. doi:10.1300/J070v15n04_02. PMID 17200052.
^ a b Drew Pinsky, MD and Ted Stryker (November 5, 2007) "Loveline" Archived July 14, 2011, at the Wayback Machine (audio interview, 0:38:45-0:40:31). lovelineshow.com. Retrieved November 15, 2007.
^ a b Bromberg, Daniel S.; Johnson, Blair T. (2001). "Sexual interest in children, child sexual abuse, and psychological sequelae for children". Psychology in the Schools. 38 (4): 343–355. doi:10.1002/pits.1023.
^ a b Gray, A; Pithers, WD; Busconi, A; Houchens, P (1999). "Developmental and etiological characteristics of children with sexual behavior problems: Treatment implications". Child Abuse & Neglect. 23 (6): 601–21. doi:10.1016/S0145-2134(99)00027-7. PMID 10391518.
^ a b Gray, Alison; Busconi, Aida; Houchens, Paul; Pithers, William D. (1997). "Children with sexual behavior problems and their caregivers: Demographics, functioning, and clinical patterns". Sexual Abuse: A Journal of Research and Treatment. 9 (4): 267–290. doi:10.1007/BF02674853.
^ Marshall, W.L. (1997). Pedophilia: Psychopathology and theory. In D. R. Laws &W. O’Donohue (Eds.), Sexual deviance: Theory, assessment, and treatment (pp. 152–174). New York: Guilford.
^ Wieckowski, Edward; Hartsoe, Peggy; Mayer, Arthur; Shortz, Joianne (1998). "Deviant Sexual Behavior in Children and Young Adolescents: Frequency and Patterns". Sexual Abuse: A Journal of Research and Treatment. 10 (4): 293–303. doi:10.1023/A:1022194021593.
^ "Do Children Sexually Abuse Other Children? Preventing Sexual Abuse Among Children and Youth" Archived 2017-09-02 at the Wayback Machine, "Stop It Now!", 2007
^ a b Craig, Elaine (2020-08-17). "Child's Play or Sexual Abuse? Reviewing the Efficacy of the Justice Framework in Dealing with Child on Child Sexual Abuse in the United Kingdom". Journal of Child Sexual Abuse. 29 (6): 734–748. doi:10.1080/10538712.2020.1719448. ISSN 1053-8712.
^ Jane M. Rudd; Sharon D. Herzbergerb (September 1999). "Brother-sister incest—father-daughter incest: a comparison of characteristics and consequences". Child Abuse & Neglect. 23 (9): 915–928. doi:10.1016/S0145-2134(99)00058-7. PMID 10505905.
^ Brown, Janelle C., Ph.D. (September, 2004). "Child-on-child sexual abuse: An investigation of behavioral and emotional sequelae," University of Pennsylvania, p. 1539.
^ Arata, Catalina M. (2006). "Child Sexual Abuse and Sexual Re-victimization". Clinical Psychology: Science and Practice. 9 (2): 135–164. doi:10.1093/clipsy.9.2.135.
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Child sexual abuse laws in the United States - Wikipedia
Child-on-child sexual abuse - Wikipedia
Child Old Sex