Child sexual abuse laws in the United States
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. Child sexual abuse is illegal in every state, as well as under federal law. Among the states, the specifics of child sexual abuse laws vary, but certain features of these laws are common to all states.
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. 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.
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.
Minors' inability to consent
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). 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 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. 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.
Incest is a criminal offense in most states. 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. Such crimes are most commonly addressed in family courts, as opposed to criminal courts, although no laws prohibit simultaneous proceedings in both forums. 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. 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, California, Illinois, New York, and North Carolina, 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: to prohibit sexual activity between those too closely related by blood.
Penalties for child sexual abuse
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 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, who victimize multiple children, or who stood in a position of trust with respect to their victims, such as a guardian, parent, pastor, or teacher. 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."
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.
- 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". supreme.justia.com. Retrieved 2007-10-19.
- "Stogner v. California". 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)
- 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.