A Long Time Coming: Closing New York's Incest Loophole

PROTECT's 2006 legislative victory in New York state began with a very influential Op-Ed article in the New York Times by Andrew Vachss. Vachss, widely respected as a pioneer of legal representation for children in New York and nationally, is also a founding national advisory board member of PROTECT.

Within weeks of its publication, Vachss' article produced an avalanche of response. No fewer than eight bills—by members of both parties—were introduced to close the loophole exposed by Vachss, rocketing PROTECT's Circle of Trust campaign forward in New York. So it seemed appropriate, upon the final passage of this landmark reform, to go back to Andrew Vachss and ask for his thoughts and reactions on this victory and what it means for children.

A Long Time Coming: Closing New York's Incest Loophole

By Andrew Vachss

"If you can imagine a situation of confinement and abuse and systematic rape over a periods of months or a year it is not surprising that people are coming out with symptoms that might be at similar levels to those persons who are tortured."
—Dr. Cathy Zimmerman, from a just-released report by the London School of Hygiene & Tropical Medicine on the enduring health problems of adult women who have been "trafficked" (for domestic servitude or sexual use).

"Sex slavery" is one of today's hottest media topics, spawning TV specials, movies, "investigative" reports, quickie paperbacks, "exposés" ... you name it. The phrase itself virtually guarantees headline coverage.

And, as always, when an atrocity rises to the level where it is consistently in the public eye, action follows. Those who traffic in human beings are (finally!) being seriously pursued and prosecuted. Laws are (finally!) being strengthened. Money is (finally!) being allocated for victim protection. Cartels who specialize in human "product" are (finally!) facing realistic threats to their once-guaranteed profits.

Every incest victim is the very personification of "sex slave," doomed by birth to a life of obscene servitude, with no hope of escape.

But at the apex of such progress, the most hideous form of sex slavery continues to be a fact of life for hundreds of thousands of American children, as it has for centuries. Every incest victim is the very personification of "sex slave," doomed by birth to a life of obscene servitude, with no hope of escape.

But while there is enormous public outrage against "sex slavery" (accompanied, of course, by fund-raising galas and celebrity adoption of this "new" cause"), how much of that outrage has been focused on those children who are sex slaves in their own homes?

Good guess.

Have you ever represented a child whose newborn baby was fathered by her father? Have you ever visited a clinic to where a child was taken, under threat of torture if she did not comply, to abort the child she was carrying? This child knew the threats were real, because the baby she was carrying was her step-father's, a convicted felon with a bodybuilder's physique and a degenerate's lust for violence. Have you ever watched a smirking scumbag as he recounted several consecutive years of incest with his oldest daughter, and, when she "got old enough to have her own boyfriends," how he turned to the next child in line? Have you ever listened to a "mother" explain how she was "educating" her victim? Or a "father" brag about how "the little whore came on to me"?

I have. That, and more. Much more.

If I acted on my feelings, I would be writing this from a prison cell. But I always maintained and radiated calm, both surface and interior. It's something I was taught a lifetime ago: lose your temper, lose the fight.

And, anyway, there was the law, right?

But the law turned out to be a joke. A dirty joke.

You see, none of these creatures I described went to prison. Nor countless other predators who, literally, grew their own victims.

So what made this little child so horribly "special" that his violator was exempt from punishment? Do you have an answer for him?

And if that shocks you, imagine trying to explain it to a child who asks, "How come my daddy didn't go to jail?" After all, the child had done what all the after-school specials said to do: he "told." When other kids "told," the perpetrator went to prison. So what made this little child so horribly "special" that his violator was exempt from punishment?

Do you have an answer for him?

For what seems eons, New York, my native home, lived under the filthy cloud of America's most egregious example of the so-called "incest loophole." Here's an example—not a rumor, not an "urban legend," an example I personally witnessed, more times than I can bear to remember: if a person has sex with a child under age 11 in New York, it is considered Rape in the First Degree, and punishable by up to twenty-five years in prison; a "violent felony," with mandatory incarceration. But, if that victim "belongs" to the perpetrator, he (or she: I have represented child victims against predators—and their facilitator/enablers—of both genders) could, instead, be charged with "incest." And the penalty for incest could be, legally, as low as probation(!).

The decision as to what crime to charge wasn't based on the acts committed, or the damage to the victim. That decision was solely up to the "discretion" of the prosecutor.

Everyone who watches those "reality-based" TV shows is sure they know what plea bargaining is: that "Man One, and he does the max!" fantasy that dominates the screen.

But how many of you know about charge-bargaining? That's when, prior to indictment, the DA's Office and the attorney for the defendant come to an "agreement." In incest cases, such "agreements" can mean prison-avoidance for the perpetrator, and another conviction for prosecutors (who will loudly proclaim they are "tough on crime" when running for re-election, and point to their "high conviction rates" as proof). The classic "win-win," right?

Don't be fooled by those sleight-of-hand prosecutors who tell you that they always charge the perpetrator with child sexual abuse and incest. That sounds like they're coming down heavy, but they're not building a case; they're building an escape hatch.

New York doesn't allow a defendant indicted for rape of a child to plead to incest "in full satisfaction" of all the charges. So indicting for both means a trial. Some defendants are too wealthy or too famous or hold too high a position to admit to incest, even when they know they'll never spend an hour in prison. So they wouldn't waste time on a "charge bargain," anyway—they hire the "best" lawyers they can find, and go the "false allegations" route.

Picking a jury is always a crapshoot. Sure, you can question the panel, but how many potential jurors are going to disclose that they're NAMBLA members? Or that they believe sex "isn't harmful to minors"? Or even that they think it's unfair to charge a person with "rape" when there was no "force" used?

By "adding" the incest charge, prosecutors are actually giving jurors the opportunity to do what they do so often: compromise. Why do you think the "Preppie Murderer" got such a super plea deal? Because they originally charged him with murder, and the jury deadlocked. Can't take a chance on an acquittal, can we? Ever wonder why Joel Steinberg—that's right, the sub-human who killed "Little Lisa"—was only convicted of manslaughter, instead of murder? Because the jury—who were I'm guessing, already angry that the child's "mother" was not charged with anything, in exchange for her testimony—compromised.

So when a defendant is charged with rape and incest, you know what any "compromise" is going to end up being: another notch in the prosecutor's belt, but nothing resembling justice.

See, there's always one party whose "agreement" isn't needed to make the deal. The one party who doesn't count. The victim.

The purpose of the criminal justice system isn't just punishment, or rehabilitation; it is to "send a message." And this is the message it sends to the child victim:

You don't count. You are a piece of property. The "parent" who brutalized you, who stole your childhood, who damaged you in ways most people wouldn't even believe, much less understand, is not only free, but free to continue the same crime. Simply put: that person owns you.

Legislative outrage against child sexual abuse is reserved for the stranger in the ski mask, not for "fathers" or "mothers." After all, isn't the core of our country the "American family?" Just ask any politician.

Remember, they piously whine, incest offenders aren't really "pedophiles." They're "sick." They have a "dysfunctional-dyad relationship" with their victims, which makes them wonderful candidates for "treatment." They shouldn't be locked up with common criminals like shoplifters and car thieves ... you know, those who took someone else's property. And we certainly never want to "take the breadwinner out of the home" ... that would put a burden on the taxpayers. Even worse, it would "break up the family unit."

And, unlike the psychopath in the ski mask, "families" do vote.

This in-your-face hypocrisy is the real message of the law. The perpetrators quickly realize that they have been granted a "Get Out of Jail Free" card ... so long as they have the good taste to sexually abuse only their own children.

And those children quickly learn that the ultimate betrayal of their trust doesn't much matter to the rest of us.

... incest laws don't protect child victims; they protect those who prey on them.

Simply and brutally stated: incest laws don't protect child victims; they protect those who prey on them.

If we want to sanction sex between adults who are related to one another, we could do it easily enough. But to give a "man" who trains his own child to "service" him the same penalty as first cousins who marry each other is as perverted as any act ever committed.

I have hated this reprehensible law ever since I saw my first case where sexual assault of one's own child—a crime most Americans find so morally repugnant that it literally turns their stomachs—was treated differently than sexual assault of a child outside the "family." The offender in that case got "therapy." Me, I got sick.

This law—and all it symbolizes—became my mortal enemy. I wished for its death, and did my best to cause that result. If I failed, I would take with me not only the pride that I died trying, but the certain knowledge that my family—and if you think I'm talking about DNA, I don't know why you're reading this—would never rest so long as my enemy still lived.

Prayer never occurred to me: I never met an incest victim who hadn't prayed for "it" to stop. Instead, I campaigned against this "loophole" with everything I had.

In 1988, the New York Law Journal published my call for the legislature to act. Result? I got a lot of letters and phone calls, but the "loophole" stayed in place, seemingly invulnerable.

So I continued the attack in every forum possible, from articles to countless speeches to "fictional" novels. I got responses from Congressmen, from the (then) Attorney General of New York, from angry citizens, from incarcerated convicts ... from every imaginable source.

But the "loophole" remained untouched.

Every citizen who first learned of this law from me was initially certain I was "exaggerating" ... you know, like the cloistered book reviewers who shrieked at my "sick imagination" of predatory pedophiles modem-trafficking in child pornography in a work of "fiction" written 20 years ago. But those who took the time to actually check out the truth for themselves were stunned that such a legalized atrocity could even exist. They sure as hell never voted for such a disgusting "privilege." Most angrily proclaimed that, if anything, sexual abuse of one's own child is perhaps the most heinous crime of all.

Plenty of outrage. And, still, no change.

... Americans have a long-running love affair with "programs," and legislators love anything that returns massive political capital for minimum investment ...

One reason for this is that Americans have a long-running love affair with "programs," and legislators love anything that returns massive political capital for minimum investment ... which leaves them plenty of our tax dollars for "public interest" projects. You know, like the "Bridge to Nowhere."

These two (self) interests combine to give us "anger management" classes for those who beat their spouses, when the same assault on a neighbor would, of course, send the perpetrators to prison. And the ultimate shining star of this callous cynicism is "treatment programs" for those who sexually abuse their own children.

See the thread? The "relationship" changes the game ... and always in favor of the perpetrator. The closer you are to your victim, the more leniency the criminal "justice" system builds in for you.

What such programs are selling is the fairy tale that the offender will learn to "take responsibility." You know, like those slimy creatures who get themselves on every TV producer's Rolodex, ready to appear on a moment's notice and lick their lips as they describe what they did to their victims, while they swear that, thanks to treatment, they're no danger to children anymore. Sure, they know they'll always be "sick," and they have to "take it one day at a time" and "self-monitor." But, hey, isn't that what "being in recovery" is all about?

It's television, people. They're selling entertainment, not enlightenment. They're not looking for answers; they're looking for an audience.

For incest, it gets even uglier. The "therapeutic" concept that is so in vogue requires "involving the other party" (treatment-oids don't like the word "victim"—it lowers the self-esteem of the poor soul who has been "afflicted" with a terrible "sickness") in "reuniting the "family unit." Nobody but a confirmed sadist would force a rape victim to "dialogue" with the humanoid who raped her. But if the rapist was her own father, well, that's a different "dynamic," see?

For real: most incest cases never even see the inside of a criminal court. After all, it's a "family matter," so it goes to family court—a closed-to-the-public place where the courts power to punish the offender is not the issue ... or the aim. It's a place of "healing." That's fine. That's as it should be. Because only the Family Courts can actually order the victim to receive counseling, order the offender out of the home, and even, in extreme cases, terminate parental rights. But the criminal courts should be waiting their turn, because only they can actually put offenders in prison. Most incest offenders are "diverted" from such a possibility. That's wrong.

This poisonous tree has deep roots, none of them stronger than a decades-old movement that has provided not only the impetus to keep such "loophole" laws on the books, but also provided swell profits for all the "treatment providers."

Instead of attacking the source of, perhaps, 90+% of all child sexual abuse in America, our "family-loving" government has spent fortunes on "good touch, bad touch" programs." So much easier to pretend that the danger's only from strangers, isn't it?

But that's a hype, just like the "missing children" campaign that was so hot a few years ago. When so many of those "missing children" turned out to be custodial interference cases, not "abductions" by strangers, the funding ran low. So now we have the U.S. government backing Web sites where people can "report" child pornography they "find" on the Internet ... instead of going directly to the law enforcement agencies who can actually do something with the information.

You feel "represented" by that taxation? I don't.

Instead of a fully funded task force of specially trained and equipped law enforcement experts, we get hobbyists posing as children to lure would-be predators onto the set of a TV show. Great for Sweeps Week ... but, when it comes to protecting incest victims, it has zero impact. But it works great as a diversion for a public that so desperately wants to believe "something is being done."

Like putting GPS locators on released sex predators. What's that supposed to do? Save us money on cadaver dogs?

The politicians won't lock up the predators long enough, but they will give you their home address when they let them go.

Yeah, I know: I can't prove that "Megan's Law" hasn't saved thousands of children from sex-torture murders. But you can't prove it's saved even one. Meanwhile, the money keeps pouring into promoting this excuse for real protection ... not from concerned citizens, but from the politicians who, rather than explain why monsters are not still in prison, give us a "registry" instead. The politicians won't lock up the predators long enough, but they will give you their home address when they let them go. That's really logical. After all, a human who would rape a child would never lie about his address, right? Not that any offender's address actually matters, because no money has ever been allocated for monitoring and tracking down absconders, or returning them to prison. Instead of actually doing something, we get more nonsense, like barring registered sex offenders from coming within a thousand feet of playgrounds. Who's going to be in charge of actually enforcing this fraud of a law: Homeland Security?

How about "prevention" of child abuse? How do you prove you "prevented" something? How do you measure what didn't happen? But there's no such requirement for federal funding, so long as the funded programs keep telling us what a swell job Congress is doing to protect kids.

I guess that's what "faith-based" really means: Don't ask to see proof that something's actually being done, just believe it. Things won't get better, but you'll feel better ... and isn't that all that really counts?

How about those "programs" that provide warm, caring volunteers to "represent" children in abuse and neglect cases? I don't mean in addition to lawyers; I mean instead of lawyers. If you're a child who's accused of committing a rape, you have a Constitutional right to be represented by counsel: a lawyer, admitted to the bar, who can be held responsible in the event of inadequate performance. But if you're a child who is believed to be a rape victim (of your own parents), what do you need a lawyer for, anyway? We'll give you a "CASA" or a "GAL," to be your "voice in court." To those who insist that this is equal to (or even better than) professional representation, I always tell them, "The next time you need a root canal, why don't you go to a warm, caring volunteer instead of a dentist?"2

Don't get me wrong: I'm not objecting to any program aimed at protecting children from predators—I just want to see money spent on where virtually all of them live ... with their victims.

But when it comes to protecting incest victims, the politicos don't even bother with the pretense. Instead, we get garbage like Nancy's Reagan's holy "Just Say No." That worked so well, didn't it? But this isn't about actual achievement, it's about salesmanship. So now we get "It takes a village" and "No child left behind." What's next? "Good parents don't rape their own children!" bumper stickers?

The child protection business is unique among commercial transactions: nobody buys the "programs," but everyone pays for them.

For me, it all added up. Maybe it started when I learned how some of the people banking millions by running completely unsupervised and unregulated incarceration programs (they would call them by a different name) for "troubled teens" were also major contributors to certain politicians. Maybe it started when I heard the term "special fathers" one time too many.

But where it started doesn't matter. Eventually, I came to realize that too many "child advocacy" organizations were dependent for their lifeblood (money) on the very politicians I would have expected them to confront. But instead of confrontation, all I ever saw was collaboration.

I may not have agreed with the positions of "single-issue" Political Action Committees such as the NRA or the anti-choice crowd, but I sure admired their ability to put together a lobbying force that actually achieved results. In fact, I was downright jealous.

During one of those online "chats" you do when you're promoting a book, someone asked the same question I'd been asked a thousand times: "What can I do?" And I answered as I always do: "Depends on what you're capable of, and what you're willing to put into it." Only this time, that person was Grier Weeks, a highly experienced and very skilled political operative.

In my family, we all live by the same code: behavior is the truth. Nothing else counts. Especially in the "child advocacy" field, where slogans trump substance most of the time.

And Grier walked it like he talked it. Following a series of private conversations, he put together the National Association to Protect Children—a.k.a. PROTECT. This is not a "child advocacy organization." It is not a "charity." It is not some self-promoting Web site with "helpful links." It does not provide lawyers—or referrals to lawyers. No "online counseling" here. The goal is not to sell books, or "Internet filters," or "How to Protect Your Child" materials.

And, heresy of heresy!, it does not push "forgiveness as the only true path to healing."

As a result of its work, the "incest loophole" was closed—not "changed," welded shut—in several states, using pure grassroots techniques (a nice way of saying, "almost no money, but lots of dedicated people"). The California campaign put together a coalition of hardcore ground troops from all walks of life: bikers, punk rockers, architects, professors, therapists, working people who don't like being played ... you name it, we had it. We were growing all the time, with members in every state, and several countries.

But New York was always the ultimate target: the King Kong of the vast "Incest Loophole" jungle.

Finally, an all-out effort was unleashed against this Goliath, ramrodded by PROTECT's New York representative, Kim Talman ... who is not called The Dragon Lady just because she's a dead ringer for the nemesis of Terry and the Pirates. And that effort was absolutely take-no-prisoners relentless.

Still, had you tried to place a bet on our chances, no bookie would have even quoted you odds. After all, the opposition was well-organized, via a web of contacts and connections built up over generations. Even the District Attorney of New York City himself campaigned against us, claiming the loophole was never actually used.

Some rather obvious questions emerged ... questions the press chose not to ask. Such as: If the law is never used, why do you care so passionately that it be kept on the books? Before you made such a sweeping statement, did you personally examine the prosecution records of every DA's Office in the whole state? Will you turn over your records to the public? Will you swear, under oath, that no defendant who sexually abused his/her own child was allowed to plead to "incest"? Or are we supposed to just take your sacred word for everything? After all, you're famous for being "non-political," right? Just ask the TV viewers.

But we knew one thing; one thing we had learned in earlier battles: politicians will never dare to do in public what they routinely do in their opaque "committees." Exactly like incest itself, the interests of those who want the "loophole" to stay on the books can flourish only if they are allowed to remain in the shadows.

We knew if we could just get our bill to a public vote, we would win. What politician would stand up and vote against it? What politician would say there should be a law giving special treatment to those who sexually abuse their own children, especially when most citizens think that "special treatment" should consist of harsher penalties?

Kim was leading a charge against an arrogant Colossus, armed only with the righteousness of her own convictions.

To say Kim worked tirelessly would be an understatement and an insult. Plenty of people work hard. Kim was leading a charge against an arrogant Colossus, armed only with the righteousness of her own convictions. This is not a lady you want angry at you.

And, one magical day, that Colossus crumbled to the dirt ... where it belonged. It will never be resurrected.

After maneuvering and pressuring in ways too complex and endless to detail here, Kim and her crew—including Alison Arngrim, who millions of you remember as the infamous "Nellie Oleson" of Little House on the Prairie—achieved the impossible.

Everybody worked for this one. They wrote, e-mailed, faxed, and telephoned "their" representatives, and got their friends to do the same. David Joe Wirth, a brilliant actor who likes a fight even better than he does the stage, and hates bullies with a bone-deep passion, jumped in the way he always does ... hard. His lovely wife, Jill Melanie Wirth, who can sing, dance, act, compose—all amazingly—turned on the charm. Which, if you know Jill, means dropping a nuclear weapon. Even battle-scarred trial veterans like David Gendelman, who worked enough of my cases with me to stoke a bonfire of hatred against those who prey on children, jumped in. And Flora Colao, the finest social worker I know, who was the healer in some of those same hideous cases, got out and campaigned for this one, despite knowing there was virtually no chance of making it happen. The entire McSorley Clan, whose matriarch resides in upstate New York, but whose roots spread throughout, went on the attack. This fight meant too much, to too many people, for the politicians to stand against the wave after wave of angry demand for change.

Nor was the war waged only by New Yorkers. As Lou Bank, the marketing guru who handles those chores for our Web site, pointed out "Everybody knows somebody in New York," and many, many folks asked their friends to step into the battle with us. Geofrey Darrow—yes, the conceptual designer of The Matrix series—gave us a full page in his incredible Shaolin Cowboy graphic novel series for attack ads against the loophole. Frank Caruso—an artist so gifted he can make you see truth—lives in Jersey, but crosses the border to work every day. So he had two fists to hammer with, and used them both. Speaking of hammer-fists, Shen Chuan Grand Master (and stunning novelist) Joe Lansdale threw himself into the fight all the way from Texas, and Commander Mike McNamara, of the Park Forest (Illinois) Police Department (and winner of too many gold medals for karate in the World Police and Fire Games to count) when he's not running Licensed for Life, was on the job with us, too. And no PROTECT effort would have a chance without Kathy Doolin, who is the reigning undisputed champion of volunteers, everywhere.

Writers found ways to work the "incest loophole" into their work; bloggers attacked its existence, singers sang their songs, and that most potent of all weapons—word of mouth—was set loose.

Many—actually, most—of those who contributed (in so many different ways) insist on remaining anonymous. If I tried to list everyone who participated in the struggle, this essay would grow into an encyclopedia.

But this isn't about names; it's about finally cracking through that wall that stood between children and justice. Who struck the final blow doesn't matter, because it was the combined effort that made it possible for the bill to close the "incest loophole" to actually get to the floor of both houses, where the public could watch the voting.

The results?

The State Senate voted to pass the bill: 60-0.

The State Assembly voted to pass the bill: 141-0.

Not a single vote was cast in opposition. See a pattern there? See what happens when citizens use force—the power and promise of a united vote—to dynamite a child protection bill out of the subterranean mineshaft of "committee" and into public view?

Even politicians who had written snide responses to constituents who had asked them to pass the reform bill suddenly voted the right way. Anyone who thinks they had a "change of heart" would have to be naive enough to believe any true politician has a heart. Our "political representatives" are as reactive as protozoans to light. They don't respond to logic, morality, or justice; they move in whatever direction they are pushed ... or persuaded (ask Jack Abramoff).

PROTECT pushed, with everything it had.

... the razor wind of justice is starting to gather strength for the hurricane brewing on the horizon. And, someday, all those who make sex slaves of their own children will feel its bite ... on the prison yard.

In New York, the game is changed, forever.

No more escape hatches for predators who grow their own victims.

This dirty little secret—like incest itself—needed only the spotlight of public scrutiny to meet its well-deserved fate. PROTECT proved that.

Today, July 27, 2006, I am especially proud to be a New Yorker. But I am even prouder to be a member of PROTECT!

It's been a long time coming, but the razor wind of justice is starting to gather strength for the hurricane brewing on the horizon. And, someday, all those who make sex slaves of their own children will feel its bite ... on the prison yard.

To have played even the tiniest role in such an achievement is a great honor. This can be done. We proved it. And the quicker you join us, the quicker it will happen throughout our country.

Copyright © 2006 Andrew Vachss. All rights reserved.

*NOTE: Vachss resigned from Protect in 2015, and is no longer associated with the organization.

This is that organization's version of how this victory was achieved.