Through the Eyes of a Child: A Call for Equal Justice for Victims of Child Abuse

By Victor Vieth¹
Originally published in The Guardian, the publication of the National Association of Counsel for Children, Spring 2001.

The NACC recently expanded its Policy Agenda to include the following provision among the NACC's criminal justice policy positions: "The NACC believes that state criminal statutes should not provide for lesser penalties for intra-familial child abuse (physical and sexual) than for extra-familial child abuse." While the NACC has traditionally focused most of its resources on the child welfare and juvenile justice systems, our Policy Agenda includes a criminal justice system component in recognition that justice for children is achieved in many ways. The new language is designed to address the disparity in many criminal codes that provides for lesser penalties when a perpetrator is a family member.

The impetus for the amendment was incest exception laws, which provide for a lesser penalty for sexual assault charged as incest than for the same conduct charged as sexual assault. At the same time, the NACC recognizes that individualized sentencing discretion is critical to good outcomes for children and families. As a matter of public policy, however, the NACC believes that our laws must not reflect a view that crimes against children, including crimes committed by family members, are somehow less egregious because the victim is a child or the child is related to the perpetrator.

Victor Vieth, Director of the National Center for Prosecution of Child Abuse, advised the NACC in this policy discussion. He shares his views on prosecuting crimes against children below.

No crime has a more sweeping, debilitating impact on its victims and on society than child abuse. The mutilation of a child's body and spirit is a pain that manifests itself throughout life. Child abuse victims are less likely to complete school and are more likely to be unemployed and underemployed.² Frequent divorce and separation, suicide attempts, and the development of anti-social personality disorders are more common for victims of child abuse.³ Victims of abuse and neglect are more likely to be arrested for juvenile and adult offenses.⁴ A conservative estimate of the annual cost of child abuse in the United States is 94 billion dollars.⁵

In the exercise of sound discretion, prosecutors will not file charges in every case of child abuse.⁶ However, when prosecution is appropriate and feasible, prosecutors must fulfill their obligation to enforce the law. In this regard, APRI's National Center for Prosecution of Child Abuse⁷ has, for over 15 years, guided prosecutors as follows:

1. Anyone who physically assaults a child or sexually molests or rapes a child, regardless of his or her relationship to that child, has committed a serious crime.
2. Allegations of physical or sexual child abuse must be promptly and thoroughly investigated by well-trained law enforcement officers, and involve social service and medical personnel who are specially trained. The response should be coordinated, sensitive and swift.
3. Prosecutors who make decisions about these cases should be specially trained.
4. If the case is provable, then criminal charges should be filed, irrespective of the familial relationship between the alleged perpetrator and the child.
5. Persons found guilty of child abuse crimes should be subject to sanctions, including incarceration and, if the person is amenable, court-mandated specialized treatment.⁸

While few are so bold as to suggest that child abuse crimes should not be prosecuted, many laws operate to treat child abuse victims disparately. Mandated reporting laws often operate to keep many child abuse victims out of the system.⁹ In some states, for example, a mandated reporter will not have to report a case of sexual abuse if the perpetrator is not a caretaker or in a familial relationship with the victim.¹⁰

Even when a child sexual abuse victim is reported into the system and the allegation results in criminal charges and a conviction, the sentence of the perpetrator is often based not on the severity of harm to the victim but on the perpetrator's relationship to the victim. I once prosecuted a man who pled guilty to sexually abusing six girls and received a guidelines sentence of only 34 months. If the same man had committed the same crime against only one victim for whom he was a caretaker, the guidelines sentence would have been 48 months. In other states, the sentencing structure is the opposite with perpetrators who sexually abuse their own children receiving more lenient sentences than those who abuse a neighbor's children.

When the child sexual abuse victim is purchased as a prostitute, offenders are not always viewed as child abusers. Only recently have some child abuse professionals begun to challenge this disparity. As noted by one commentator, "(f)rom a sentencing perspective, the defendant who sexually exploited a prostituted child must be punished as severely as all other child molesters."¹¹

Supreme Court Justice George Sutherland said the "two-fold aim" of the prosecutor is that "guilt shall not escape or innocence suffer."¹² Although most prosecutors adhere to this noble principle, the guilty sometimes escape a just sentence simply because they purchased their victim or otherwise selected a child who falls on one side or the other of a statutorily drawn line or a sentencing guidelines grid. As I travel around the country, many child abuse prosecutors express confusion over the disparate treatment of child abuse victims and the lack of a public outcry.

If those who enforce the laws are often frustrated by them, heaven help the boy and girl victims who live with the consequences of disparate protection. According to Hubert Humphrey, "child abuse has been ignored because children have no political muscle, no effective way of articulating their needs to those of us who write the law."¹³ In analyzing our nation's vast array of child abuse laws, let us resolve to speed the hour when child protection professionals, defense attorneys, judges and legislators join forces in enacting and enforcing statutes that treat every child abuse victim with deserved dignity and fairness.

This article originally appeared in the Spring 2001 issue of The Guardian.
© 2001, National Association of Counsel for Children. All rights reserved.
Reprinted with permission from the NACC, Denver, Colorado. For information about this publication contact Natalie Canniff, Administrator at 303/864-5324; Email: Canniff.Natalie@tchden.org.