Laws regarding child sexual abuse

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See also: Child sexual abuse

Child sexual abuse is outlawed in every developed country,[1][2] generally with severe criminal penalties, including in some jurisdictions, life imprisonment or capital punishment. An adult's sexual intercourse with a child below the legal age of consent is defined as statutory rape,[3] based on the principle that a child is not capable of consent and that any apparent consent by a child is not considered to be legal consent.

One hundred forty nations are signatories to the United Nations Convention on the Rights of the Child. This international treaty defines a set of protections which signatories agree to provide for the children of their respective countries.[4] Articles 34 and 35 require that signatories protect their nations’ children from all forms of sexual exploitation and sexual abuse. This includes outlawing the coercion of a child to perform sexual activity, the prostitution of children, and the exploitation of children in creating pornography. Signatories also agree to prevent abduction, sale, or trafficking of children.[5]

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[edit] In the United States

Under the law in the USA, "child sexual abuse" is an umbrella term describing criminal and civil offenses in which an adult engages in sexual activity with a minor or exploits a minor for the purpose of sexual gratification.[6][7]

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.[8] Child sexual abuse is illegal in every state,[9] as well as under federal law.[10] Among the states, the specifics of child sexual abuse laws vary, but certain features of these laws are common to all states.[11]

The U.S. Supreme Court ruled in Kansas v. Hendricks that a predatory sex offender can be civilly committed upon release from prison.[12] 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.[13]

The U.S. has also instituted Megan's Law, which 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.

[edit] 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).[14] Consequently, an adult who engages in sexual activity with a minor commits child sexual abuse.

Many states[15] 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.[16] 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.[17]

[edit] Incest

Main article: Laws regarding incest

Incest is a criminal offense in most states.[18] 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.[19] Such crimes are most commonly addressed in family courts, as opposed to criminal courts, although no laws prohibit simultaneous proceedings in both forums.[20] 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.[21] 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,[22] California,[23] Illinois,[24] New York,[25] and North Carolina,[26] 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:[27] to prohibit sexual activity between those too closely related by blood.[28]

[edit] 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[29] 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,[30] who victimize multiple children,[31] or who stood in a position of trust with respect to their victims, such as a guardian, parent, pastor, or teacher.[32] 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.

[edit] In South Africa

In 1995, South Africa ratified the United Nations Convention on the Rights of the Child and committed to a range of obligations aimed at establishing and protecting the rights of children. The Child Care Act, (74 of 1983) and the Child Care Amendment Act, (86 of 1991; 13 of 1999) make sexual abuse of children a criminal offense.

[edit] In the United Kingdom

The United Kingdom rewrote its criminal code in the Sexual Offences Act of 2003. This Act includes definitions and penalties for child sexual abuse offences, and (so far as relating to offences) applies to England and Wales and Northern Ireland. The Scottish Law Commission published its review of rape and sexual offences in December 2007, which includes a similar consolidation and codification of child sexual abuse offences in Scotland.

[edit] References

  1. ^ Levesque, Roger J. R. (1999). Sexual Abuse of Children: A Human Rights Perspective. Indiana University Press, pp1,5-6,176-180. “The world community recently has recognized every child's fundamental human right to protection from sexual maltreatment. This right has been expressed in recent declarations, conventions, and programs of action. Indeed, the right to protection from sexual maltreatment is now entrenched so strongly in international human rights law that no country can relinquish its obligation.” 
  2. ^ United Nations Convention on the Rights of the Child. Office of the United Nations High Commissioner for Human Rights (1989). “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse... States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.”
  3. ^ Black's Law Dictionary 8th Edition. child, "at common law, a person who has not reached the age of 14." See also definition under rape "carnal knowledge of a child is frequently declared to be rape by statute."
  4. ^ Signatories to the United Nations on the Convention of the Rights of the Child.
  5. ^ United Nations Convention on the Rights of the Child.
  6. ^ The Sexual Exploitation of Children, Chart 1: Definitions of Terms Associated With the Sexual Exploitation (SEC) and Commercial Sexual Exploitation of Children (CSEC) (p. 4), University of Pennsylvania Center for Youth Policy Studies, U.S. National Institute of Justice, August 2001.
  7. ^ Child sexual abuse definition from the NSPCC
  8. ^ Child Abuse Prevention and Treatment Act of 1974, (most recently reauthorized by Public Law No.108-36, (2003)).
  9. ^ State Statutes - Child Abuse and Neglect, Children's Bureau, U.S. Department of Health and Human Services.
  10. ^ Index of Child Welfare Laws,Children's Bureau, U.S. Department of Health and Human Services.
  11. ^ Definitions of Child Abuse and Neglect, Summary of State Laws, National Clearinghouse on Child Abuse and Neglect Information, U.S. Department of Health and Human Services.
  12. ^ Kansas v. Hendricks 521 U.S. 346. supreme.justia.com. Retrieved on 2007-10-19.
  13. ^ Stogner v. California. oyez.org. Retrieved on 2007-12-30.
  14. ^ The Age of Majority, T.E. James, American Journal of Legal History, vol. 4 (1960).
  15. ^ See, for example, Dixon v. State, 278 Ga. 4, (2004), stating that 38 states have a such a law.
  16. ^ A Step in the Right Direction, Sabrina A. Perelman, Georgetown Journal of Gender & Law, vol.7 (2006).
  17. ^ Consensual Sex and Age of Sexual Consent, Colette S. Peters, Colorado Legislative Council Brief, 2002.
  18. ^ List of Child Sexual Abuse Loopholes in State Law.
  19. ^ The Incest Loophole, Andrew Vachss, New York Times, November 20, 2005.
  20. ^ See, for example, In re S.A., 37 P.3d 1172 (Utah Ct. App., 2001)
  21. ^ Child Sexual Abuse and the State, Ruby Andrew, UC Davis Law Review, vol. 39, 2006.
  22. ^ Arkansas Act 1469 (2003).
  23. ^ California Penal Code § 285.
  24. ^ Illinois Public Act 93-0419 (2003).
  25. ^ New York Penal Law § 255.27.
  26. ^ North Carolina General Statute § 14-178.
  27. ^ Incest: The Nature and Origin of the Taboo, by Emile Durkheim (tr.1963)
  28. ^ Kinship, Incest, and the Dictates of Law, Henry A. Kelly, 14 American Journal of Jurisprudence, 1969.
  29. ^ Child Sexual Abuse and the State, Ruby Andrew, UC Davis Law Review, vol. 39, 2006.
  30. ^ See, for example,People v. Murphy, 19 P.3d 1129 (2001).
  31. ^ See, for example, People v. Hammer, 69 P.3d 436 (2003)
  32. ^ See, for example, Washington v. Grewe, 813 P.2d 1238 (1991).