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The Incest Loophole

By Andrew Vachss
Originally published in The New York Times Op–Ed, November 20, 2005

What if I told you that a father who was regularly raping his 8–year–old daughter could reasonably expect to avoid prison if he were discovered? You'd be outraged, right? But this is a fact of life in New York, thanks to the "incest loophole." And nobody in the Legislature is even trying to change this reprehensible law.

Most citizens agree that child molesting is one of the foulest crimes imaginable. Yet New York's law—much like that of most other states—allows the possibility of privileged treatment for a special class of offender: the perpetrator who is related to his prey. In other words, the penal code gives a discount to child rapists who grow their own victims.

Anyone who believes this to be hyperbole needs only to compare New York's penalty for those who molest an unrelated child with the penalty for those who molest children to whom they are related.

In New York, sex with a child under the age of 11 is a Class B felony, punishable by up to 25 years in prison. The law is indexed appropriately, in the chapter on sex offenses. If, however, the sexually abused child is closely related to the perpetrator, state law provides for radically more lenient treatment. In such cases, the prosecutor may choose to charge the same acts as incest. This is not listed as a sex offense, but instead as an "offense affecting the marital relationship," listed next to adultery in the law books. It is a Class E felony, for which even a convicted offender may be granted probation.

Probation is available because the law considers incest with a child to be a nonviolent crime. But the fact that physical force is rarely required for a parent to violate a child does not make the crime nonviolent. Incest is, most typically, rape–by–extortion, with parents abusing their position to induce compliance from victims whose every aspect of life is under the perpetrators' control. Entitling those who commit such crimes to a legislative get–out–of–jail-free card is indefensible.

In New York, district attorneys are elected officials, so maintaining a high conviction rate is an important political tool. But giving prosecutors the option of bargaining a child sexual abuse charge down to incest invites exploitation and mocks the vaunted principle of justice for all, making children mere property. Even if one chooses to believe that prosecutors would never actually use such a loophole, how does this excuse leaving it on the books? Why should prosecutors and judges have the discretion to give special treatment to those who sexually abuse their own children?

The current law has a curious history. It has been virtually unchanged since it was originally enacted in colonial New York. As with similar laws in other states, it was adopted, virtually intact, from a 16th–century British statute.

When they were first written, laws against incest were founded on biblical prohibitions and intended to prevent the conception of genetically impaired children. The paradigm was first cousins marrying, not parents raping their children. The New York incest statute pre–existed by decades any public recognition of child sexual abuse. It has never evolved in recognition of the unsavory but indisputable reality that the overwhelming majority of sexual crimes against children are not committed by strangers.

If New York's "incest loophole" ever went to public referendum, it would be doomed. In fact, most people feel strongly that violation of one's own child should result in an increased punishment, not a reduced one. But this is a stealth law, flying below the radar of public attention. It is evoked only in backroom deals between defense lawyers and prosecutors, never covered by the press.

Any politician who openly supported such a law would be committing career suicide. But because its primary victims cannot contribute to political campaigns, hire lobbyists or vote, no natural constituency to change this law has emerged. Getting legislation passed or changed without an exchange of benefits is nearly impossible.

If we are to finally add reality to the rhetoric of child protection, now is the time. The current statute in New York says that someone is "guilty of incest when he or she marries or engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her." By simply replacing "person" with "adult" in that reference, we would be able to keep the original intent of New York's incest prohibition—as an "offense against the marital relationship," while closing the loophole that now protects a special class of deviant offender.

We're going to elect a new governor soon. We should demand that each candidate pledge to make changing this law a top priority of his administration. Our children's lives depend on it.

Andrew Vachss, a lawyer whose practice is limited to the representation of children, is a member of the advisory board of the National Association to Protect Children.

© 2005 Andrew Vachss. All rights reserved.

Response from Robert M. Morgenthau, District Attorney, Manhattan, dated December 04, 2005:

In "The Incest Loophole" (Op–Ed, Nov. 20), Andrew Vachss asserts that "the penal code gives a discount" to those who molest their own children. Nonsense. Anyone who rapes a child under the age of 11 is chargeable with rape in the first degree—and faces up to 25 years in prison—regardless of his relationship to the victim.

Mr. Vachss claims that prosecutors might bargain down these cases to incest for political reasons—as if there were political capital to be made by going easy on child molesters—but he does not cite even one actual case to support this outrageous accusation. In fact, New York plea–bargaining restrictions would make any such plea illegal.

In short, there is no "incest loophole" in New York that needs to be fixed.

Excerpted from People v Matthie, 2006 NY Slip Op 08293; decided on November 16, 2006; Appellate Division, Third Department; published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431:

HERB A. MATTHIE SR., Appellant.

Calendar Date: September 6, 2006

Appeals (1) from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered April 19, 2005, convicting defendant upon his plea of guilty of the crime of incest, and (2) from an order of said court, entered April 20, 2005, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant was arrested in March 2004, after his adopted daughter alleged that he had sexually abused her. According to the victim, the abuse began in June 2003, when the victim was 13 years old, and escalated from inappropriate touching to sexual intercourse over the course of the following nine months. Defendant was charged in an indictment with one count of rape in the second degree, one count of a criminal sexual act in the second degree and three counts of sexual abuse in the second degree. Without admitting guilt, he entered an Alford plea to incest (see Penal Law § 255.25) in full satisfaction of the indictment. County Court denied defendant's subsequent motion to vacate the plea on the ground that it was involuntarily entered, and sentenced defendant, in accord with the plea agreement, to 10 years probation and classified him as a risk level II sex offender. Defendant appeals and we now affirm.

Excerpted from "Neither Jail Nor The Dead Can Keep Campaign Accounts In NY From Going On":

Former Manhattan District Attorney Robert Morgenthau, who had $622,999 in his campaign account as of mid'July, made nearly $10,000 in donations to various charities earlier this year.

As for the ultra-powerful politician whose minions did their best to bottle the legislation in committee:

The "incest exception" was well known to the legislature many years prior to any action on the subject.


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