Closing the loopholes for incestuous offenders

BY ELIZABETH DONALD
edonald@bnd.com
Belleville News - Sun, May. 18, 2003

 

If a person molests a child in Illinois, he faces up to 30 years in prison.

If he molests his own child, he can get probation.

The reason is a special provision in the Illinois criminal code that allows for a lighter sentence if a person commits incest rather than molesting a stranger's child. And it has caught the eye of national children's rights groups and state legislators, who want to put an end to Illinois' incest exception.
A deliberate loophole

In 1981, legislators added an exception to the sentencing code for sexual assault, allowing prosecutors to offer probation in incest cases in an effort to keep troubled families together while addressing their problems.

Madison County prosecutor Kyle Napp said she has never had a judge actually sentence probation unless the state's attorney's office agreed. But St. Clair County State's Attorney Robert Haida said judges have imposed probation in some cases when his office wanted imprisonment.

"We've had cases where we have asked for jail time, and it's not a case where the judges always follow our recommendations," Haida said.

Many times, the incest exception allowed prosecutors to get a plea bargain instead of going to court, which gets the offender labeled as a sex offender but doesn't keep him away from the child.

Illinois isn't the only state with this legal loophole. A nonprofit group called Protect: National Association to Protect Children is going from state to state trying to eradicate these laws, and is pushing for a national law requiring that sentencing be no less severe for incest than any other form of sexual assault. Protect director Grier Weeks estimates that 40 out of the 50 states have some kind of incest exception in their criminal codes and sentencing guidelines.

In the past year, Protect has lobbied successfully for changes in North Carolina and Arkansas laws. Protect has such diverse celebrity supporters as "Matrix" directors Andy and Larry Wachowski and children's rights attorney and author Andrew Vachss, all of whom serve on Protect's advisory board.

But Illinois has caught special attention.

"In a lot of states, it was a question of an antiquated law," Weeks said. "These were old laws that were never intended to protect children in the first place -- they were intended to prevent intermarriage."

But in Illinois, Weeks said, the law was added intentionally in 1981.

"For that reason, this is the most important battleground we've seen for this issue," he said.
A lesser penalty

In 1981, experts believed it was more important to keep families together, even to keep the offender in the home if he was the primary breadwinner.

"That's really the sort of thing we used to hear about domestic violence: 'These things are family matters, the person just needs counseling,'" Weeks said. "You don't hear that anymore about domestic violence."

State Sen. Don Harmon, D-Oak Park, who sponsored the Senate version of the bill to close the loophole, said the original intent was to keep families together.

"The supposition was that the abuser would get counseling, continue to work and support the family, and agreed to stay away from the child," Harmon said. "In practice, what they've found is that the abuser is not a substantial contributor to the family finances and does not stay away from the child. The abuse continues."

Carolyn Hubler, director of the St. Clair County Child Advocacy Center, said keeping families together is no longer enough reason to let a molesting parent off the hook.

"I understand the stress of the non-offending parent, but any kind of safety plan would want the perpetrator away from the child," Hubler said.

New laws on the

When state Rep. Joe Dunn, R-Naperville, read a magazine article about Protect's work, he was surprised by Illinois' law and proposed House Bill 3466, which would remove the state's incest exception. The bill passed the House unanimously, then lingered in the Senate Rules Committee for six weeks.

"Nobody in Rules objected; it really fell through the cracks," Dunn said.

But last week, state Sen. Don Harmon, D-Oak Park, kick-started the legislation by adding it as an amendment to House Bill 562. It was approved by the Senate Judiciary Committee and the full Senate within two days, and it has gone back to the House for approval there. Already, it has received 15 co-sponsors in the House and has been moved to the House Judiciary Committee.
State Rep. Tom Holbrook, D-Belleville, said he the bill is a step in the right direction.
"Back in the '70s and '80s, they thought holding the family together was a higher priority, sometimes, than the welfare of the child," he said. "This bill will change that.... I feel if someone's been convicted of sexual abuse, the welfare of the child and the rest of society is more important."

State. Rep. Jay Hoffman, D-Collinsville, also supports the bill.

"A predator, regardless of whether he's related to the victim, is still a sexual predator," Hoffman said. "The victim suffers as much, if not more, if the individual is related."

Weeks called Dunn "a real hero" for pushing through the legislation.

"Everybody's prepared to fight the occasional child abduction because we want to protect our children," Weeks said. "But changing this law is how you protect the many more kids suffering silently behind closed doors."

The hardest cases to prove In her experience, Napp called incest cases are the most difficult to prosecute.

"There's no physical evidence, never an eyewitness, and if the defendant doesn't admit it, you just have the child's word," Napp said. "Jurors are reluctant to convict someone based on the statement of a child."

In a typical case, Haida said, the victim is fairly young, ages 8 to 12, and the case is mostly circumstantial.

"We have to piece together circumstantial evidence to corroborate the victim," Haida said. "There are circumstances where we believe what the victim is telling us, but without sufficient backup, we're setting them up for a disagreeable experience, being cross-examined in court."

State Sen. Bill Haine, D-Alton, a former Madison County state's attorney, said family members often refuse to testify against other family members, especially in a case involving sexual abuse. Lesser penalties tend to encourage cooperation, he said.

But Haine supports the bill, citing improved methods of interviewing children that make the need for family testimony less urgent.

Napp doesn't entirely agree, although she supports the legislation.

"While I do agree that techniques have greatly improved, as a prosecutor, if I'm going take a case to trial, (the child) will still have to come to court and testify," Napp said. "I still have to have the family's cooperation."

St. Clair County State's Attorney Robert Haida said he doesn't believe the legislation will help or hinder prosecution efforts.

"Honestly, whether it makes it easier or harder to successfully prosecute these cases ... it's better to have the change," Haida said. "It's fair, and it's the right thing, to have equal punishment."
A better understanding

One reason this issue is catching attention is a better comprehension of sexual abuse -- by the experts and the public.

The Child Advocacy Centers are part of that and very important to prosecutors, Napp said. Children who come to the centers are interviewed once by a trained social worker, while being videotaped with a hidden camera. Police, prosecutors and others involved in the case may watch through a one-way mirror, but the child is not forced to repeat the interview with law enforcement, medical and psychiatric personnel.

The centers also provide psychological referrals for children and their families.

"The team members try to corroborate so the child's statement isn't standing alone, so it's not all on the child," Hubler said.

Experts now believe that contrary to previous theories, incest is more traumatic to a child than a stranger's assault.

"In the (past) 20 years, we've learned a lot, and opinions have changed," Weeks said. "This crime is more damaging, not less. Leaving those children in harm's way is completely unacceptable."

Child psychologist Bruce Perry said each situation is different, and children will react differently and suffer different long-term effects.

"Someone who has experienced (incest) at some point will someday recognize that it is not the social norm," Perry said.

However, Perry said children from abusive backgrounds will try to seek out similar situations even when removed to a safe place because it's all they know. So Perry travels around the country, training foster parents how to deal with the long-term damage caused by abuse.

"You cannot undo something in the brain, because the brain moves forward in time," Perry said. "If you help a child, you're helping his mind to create new things, not undo old things.... You can't just teach a child a new concept and expect everything to change."

But as much as understanding may have changed, some attitudes remain the same.

"In my experience, most people don't want to believe that it could happen in their family," Napp said. "They want to believe it happens to other people in other families."

At Call For Help, the local sexual assault crisis center, the youngest victim they are currently helping is 4 years old.

"One in three girls and one in six boys are sexually abused by the age of 18," said sexual assault victims care unit director Pearl Campbell.

Kate Tegtmeier, director of the Madison County Child Advocacy Center, said the biggest misconception is that children usually are molested by strangers.

"Most children are sexually abused by someone they know, someone in a position of authority and trust," Tegtmeier said. "We warn them about strangers, but we don't give them tools to protect themselves.... It's unusual for it to be stranger. It's almost always someone the child knows."

No real cure

One thing almost everyone agrees on: There's no proven cure for child molesters, family or not.

"I send perpetrators to sex offender treatment because it's better than nothing," Napp said. "I don't think treatment works. Put them in the wrong place at the wrong time, and they'll do it again."

According to the Illinois Coalition Against Sexual Assault, 43 percent of untreated child molesters and 22 percent of untreated incest offenders will reoffend.

Haida said the entire premise of the incest exception was that pedophilia is a treatable illness -- a false premise, he said.

"I'm not convinced that it is a treatable illness, or can be controlled through counseling or medication or any other means," Haida said. "(Through the incest exception), the system is saying it doesn't think it's that bad what the perpetrator did, and I don't think that's a message we want to send."

Weeks said you can't find anyone to claim "with a straight face" that they can cure molesters.

"What this is really about is driving a stake through the heart of the old notion that what happens to these kids is not really a crime, that it's some kind of social pathology," Weeks said. "These kids more than anything need for us to protect them, because they're not being protected by their own family members."