9 december 1999

The South African Law Commission has begun debating appropriate sentencing for sexual offenders amidst controversy about whether incest should be considered more, or less, serious than rape by a stranger.

Judge John Foxcroft of the Cape bench began the furore when he said a father who brutally raped his 14-year-old daughter deserved a lighter sentence because he had raped inside the family, and therefore did not pose a threat to the broader community. Joan van Niekerk, director of Childline in KwaZulu Natal was then quoted as saying that children would not report their father's raping them if they believed their fathers would get steep sentences. However, van Niekerk - who is on the Law Commission committee devising new legislation - claims she was misquoted, "and undoing misinformation like this is very difficult indeed. "Members of the Welfare Portfolio Committee - particularly those MP's with direct experience in the welfare field and child sexual abuse flagged the issue of creative procedural provisions that facilitate the child's disclosure and ultimate protection from further abuse when the abuse is happening in the family and the child is reluctant to report. We experience this frequently when working with children and often end up with a refusal from the child to make a statement. "This means that the case comes to naught and the child is unable to be protectected in any way. This led to a discussion on "creative management" to facilitate disclosure - this would be far broader than just looking at sentencing issues. "Childline works with families if they express the desire to remain intact - however this is their decision and not ours - sometimes we disaaagree with the decisions that individuals and families make on these issues. However, this work only proceeds under conditions that ensure the protection of children both within and external to the family - so often the offender may not live with the family for some time, will be carefully monitored, as well as have conditions that support rehabilitation and safety issues."

Van Niekerk says, "it is also important not to see all sexual offenders as having a common identity and pathology and all sexual crimes as rape. There is a great deal of difference in criminal sexual behaviour, in offender personality and potential for behaviour change. Rehabilitation is not an option for many sexual offenders and this possibility should be carefully assessed. "It is also important that the media does not seperate rehabilitation and punishment - the two can and should wherever possible co-exist for both prison and community based sentences, and especially for the young adolescent offender whose sexual behaviour is less entrenched and therefore more conducive to responding to behaviour change efforts."

Van Niekerk said it was critical that there was "good management of sexual assault - particularly in relation to children who suffer such harm when poor management occurs - so many children come out of the criminal justice process and tell us they wish they had never told - a tragedy in itself - and also a cause of much secondary trauma." Joan Zorza, who is a child abuse specialist in the New York district attorney's office said, "like adults there are some children who feel angry when they learn that their abuser gets no jail time (or even no probation), and there are children who feel guilty for any time their abusers spend.  Much depends on what their non-abusing parent wants and will support.  I think when one parent wants to be protective, that parent should be supported to the fullest, including cutting off all visitation with the abusive parent.  I often think we blame nonabusive mothers and attribute complicity to them when either they really did not know what was happening or were being seriously abused themselves, so had little ability to defend themselves, let alone stand up for their children."

Craig Barlow, head of the child abuse prosecution division of the Utah Attorney General's Office concurred, "in my experience, children have no concern or awareness of possible sentences when they report sexual abuse by a parent or relative.  When a child reports incest she has usually already decided that any consequences are preferable to the continuing abuse.  Moreover, serious penalties for incest are often the most effective incentive for abusers to acknowledge their actions and obtain meaningful treatment.  Lenient sentences for intra-family abuse send a message that such behavior is not that serious - when all the research says that incest can have devastating effects on children." Louise Armstrong, an incest expert in the USA and author of "Kiss Daddy Goodnight" and "Rocking the Cradle of Sexual Politics, What Happened When Women Said Incest" had stronger views: "the rumour that "kids don't want daddy to go to jail" (and thus won't tell) has been floated since Moses was a pup.  Since it appeared immediately when women first broke the silence here in the US in 1978, following centuries of denial that there was any incidence of incest much less any threat of offender arrest, it sim

ply could not have been based on anything other that an attempt to manipulate the policy response -- away from the criminal, and toward the medical/treatment response.  "It was (an excuse) always in the reasons to "decriminalize" incest (the actual word that was used here in the late 1970s) -- others being: overcrowded prisons; the breakup of families; the loss of the breadwinner... and the mother's "collusion".  (It was often posed that he only did it because she was sexually rapacious, frigid, domineering, cowardly, manipulative, passive - poor thing; can't put him in jail, then.)

"The only study I'm aware of (into children's views on incest sentencing) was done by Liz Kelly, Sheila Burton and Linda Regan in 1992 at the Child and Woman Abuse Studies Unit at the Univesity of North London. Based on responses from 273 young people who had experienced some form of sexual victimization, 95 percent felt that abusers should be prosecuted, and 87 percent this should be so if the offender were a family member." Armstrong said it was her experience that "among many, many children, most removed to foster care as a result of telling, that they were the ones punished; and that the abusiveness of the intervention was more damaging than the rape, as the kids were the ones declared emotionally damaged.  A far stronger argument can be made that kids will not tell if they know that nothing substantive will be done to punish the offender: his life will not be turned upside down." Zorza notes that, "children care only if their parent(s) blame them for the sentence, and mainly do so when it is jail time. In Massachsuetts where I practised until 1990 (and where the sentence for statutory rape was up to life imprisonment) girls were as likely to report the crime as in New York (where the penalty is a maximum of 1 year in jail for the sex offender).  Frankly, I think both states have statutory rape sentences that are inappropriate.  Massachusetts because such a long sentence might on ly make sense if there were other crimes that were committed at the same time (such as, a very serious assault or murder) and New York because when there is a major age difference or force or coercion used, one year is just too short." But perhaps the most telling comment came from a judge. Judge Marjory D. Fields of the Supreme Court, New York County, an expert on family violence noted: " Light sentences would put children who disclose at greater risk because the offenders will be able to get revenge and move back into the family home after a short jail term.  In most instances, the child victim would be too young to get away before the offender has served his sentence. "Longer sentences give children time to grow up and move away from the family home. Children testify in criminal and family court cases because they want to be kept safe from the offender. Knowing the offender was incarcerated made the children feel safe."

Timothy Scobie, Chippewa County District Attorney in Wisconsin, USA said has been prosecuting sexual assault cases for eight years, "most of the sexual assault prosecutions here, and on occasion I speak to adolescent sexual assault victims during their counseling sessions through our local Department of Human Services. "Most sexual assault victims have no idea about the criminal legal system before they're thrown into it.  I have never heard of a victim refusing to report a crime based on the length of sentences (or potential sentences) given to other perpetrators of incest and sexual assault.  Most often these kids are not even sure that what the defendants are doing is bad. "I have seen many cases where a defendant will tell the victim that "if you tell, I'll go away (or to jail) for a long time."  It is not the victims who care about the penalties, it's the defendants.  I have also never heard tell of a victim coming back later and saying "if I had known how long so-and-so was going to prison, I never would have told the police." "Juries believe this is a despicable crime that necessitates heavy punitive measures, in addition to the rehabilitation steps taken to ensure that defendants do not re-offend." Scobie says children were more likely to retract charges because they were badly treated by social workers, police officers, counselors, and prosecutors. "It would be my humble opinion that if the victims know about the sentencing potentials, it would be  only because someone was trying to manipulate them further.  I cannot imagine some legislator here attempting to lessen penalties for such an atrocious crime based upon a concern that children were worried about the sentences perpetrators would receive. "

Anne Hogan of the Jefferson County Police Domestic Violence Unit in Kentucky, USA noted, "some children want very much to remain close to the parent, but want the abuse to stop.  The few child survivors I worked with in a treatment setting years ago were  so traumatized by it all, I don't think they cared much about "punishment", but they cared a lot about how disrupted their lives were.  One girl was appalled at all she went through and her dad received less than a years sentence."

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