Crime Reports: The importance of prosecuting sexual assault within the family

http://thecrimereport.org/2010/09/13/the-unspoken-crime/

The U.S. justice system is failing victims of incest, a Crime Report investigation shows.

The Unspoken Crime
By Cara Tabachnick
Monday, September 13th, 2010 5:56 am


John Mark Clubb was six when his father, a Baptist preacher and high school guidance counselor, came into his bedroom and violently raped him. The abuse continued until he was nine, but it wasn’t until he was 29 that he remembered what happened.

“I’ve struggled with sex, anger and alcohol to try and fill the empty feeling and mask my anger,” said Clubb who left home at 17 to join the Marine Corps, and is now a commercial airline pilot. When he finally gathered the courage to tell his family. they rejected his story and accused him of lying.

But worse yet, when Clubb went to the District Attorney’s office in Tampa, Florida, where his 89 year-old father still lives, he was told that his case could not be prosecuted. Years later, there was no evidence of the crime except for Clubb’s word against his father’s. And incest trials are notoriously hard to try, making prosecutors hesitant to accept these difficult cases.

But John’s story as an incest victim is not unusual. It is hard to find a more serious crime than the rape of a child; yet when a family member is the perpetrator, justice is sometimes hard to achieve. Child welfare advocates say that the safeguards in place to protect the child usually fail. Research suggests they are right.

Even if John’s case, for instance, had come to the attention of authorities when he was still a minor, the odds that his father would have been punished for his crime remain slim. That’s because, according to a 1990 study by University of South Florida criminologist Lorie Fridell, prosecutors tend to defer or divert complex incest cases to child protective services who can provide for an alternative, non-court resolution, such as therapy or community service, in an effort to keep the family together.

Other research has drawn a similar conclusion. A 1993 report of the American Bar Association Center on Children and the Law, found that more than 90 percent of all child abuse cases do not go forward to prosecution. Moreover, the study showed many suspects are released without further intervention by law enforcement or the justice system.

No Help From Police
And survivors like John, who try to find justice later on in life, by going straight to the police, are often out of luck. Sometimes the evidence is judged insufficient or questionable. Or there are statutes of limitation that apply.

Or, in some cases, prosecutors shy away from taking on complex incest cases, one of society’s most emotional and secretive abuse.

“The criminal justice response to child abuse needs to be better,” says Suzanna Tiapula, Director of the National Center for Prosecution of Child Abuse, a program of the American Prosecutors Research Institute.

Yet the blame cannot be laid solely at the feet of the criminal justice system.

Even more troubling, Child Protective Services, the state agencies charged with protecting the welfare of children, are in many cases can be unprepared to properly investigate and collect evidence on these sensitive complex sexual abuse cases or have not been adequately be trained thoroughly to detect sexual abusive, thus possibly leaving thousands of children in dangerous situations, said experts interviews.

While the two agencies, Child Protective Services and law enforcement, working to protect incest victims and punish their abusers have made strides since the 1990s by forming multidisciplinary teams, closing some legislative loopholes and working with children advocacy centers, a Crime Report investigation suggests that the system inadequately still remains woefully inadequate to protect their fragile charges. Scant information, a hodgepodge of laws and statutes, poor communication, and prosecutorial discretion, along with underfunded, poorly trained and overburdened CPS investigators, all continue to leave children at the greatest risk.

Two-Tier System
The problem starts with how such cases are handled when they come to the attention of authorities. Sexual abuse within a family comes under the jurisdiction of Children Protective Services (CPS) units, which were established inside state departments of social services in accordance with the 1974 federal Child Abuse Prevention and Treatment Act.

Under this law the federal government allocated resources to states to prevent child abuse and neglect, as well as programs related to the investigation and prosecution of child abuse.

The motives for doing this seemed beyond reproach. The basic idea was to have specially trained investigators work on these sensitive familial issues. And while having units dedicated to investigating child abuse is a good idea in theory, Child Protective Services agencies have been targeted with allegations of botched investigations and corruption. Many are criticized as ineffective gatekeepers of children’s welfare.

“If a kid is raped by a neighbor, people call police, but if the same person rapes their own child they call social services. What kind of justice is that?” said Grier Weeks, Executive Director of the National Association to Protect Children (PROTECT), a national organization based in Tennessee that works on lobbying for child abuse legislation.

If a child accuses a caretaker of abuse, CPS has to be involved, but law enforcement does not. So, if a child is raped by his or her parent and goes to the police, CPS has to be notified in all states. But if CPS is notified, they are not required to tell law enforcement. And herein lies one of the largest conundrums of bringing these cases to justice: too often, experts say, social workers don’t have the training to investigate a sexual abuse allegation.

Indeed, out of the three million referrals for child abuse received by CPS units around the country, according to the Administration for Children and Families annual Federal Child Maltreatment Report in 2008, which tracks all CPS statistics nationwide and were the last figures available, just 1.5 million were either investigated or received an assessment by CPS. Of these, only 24 percent of the investigations or assessments determined that at least one child was a victim of child abuse or neglect, among whom an estimated nine percent were sexually abused. This comparatively small percentage, leads advocates to believe that CPS has dismissed many cases without thorough investigation into the charges.

“If there is no check by a prosecutor, Child Protection Services has no one on looking over its shoulder,” says Victor Vieth, director of the National Child Protection Training Center, a not-for-profit organization that works to better train CPS workers. “CPS might not realize what they may not know.”

But when CPS does find a pattern of sexual abuse in a referred allegation it is almost impossible to track whether those cases made it to the criminal justice system.

This does not surprise professionals in the field: the relationship between CPS and law enforcement is historically fraught with distrust. While in certain communities, in particular urban areas, multidisciplinary teams have formed to fully investigate sexual abuse cases, a majority of agencies operate in separate silos.

“CPS is about protecting the kid, so you can protect a kid by taking them out of the house, but that doesn’t punish the adult at all,” says Ross Cheit, who studies child sexual abuse. “CPS isn’t about punishment or treatment of adult involved.”

Cheit, who heads the A. Alfred Taubman Center for Public Policy & American Institutions in Providence, found in a 1997 study of 500 substantiated CPS sexual abuse cases in Rhode Island that just 12 were prosecuted in criminal court. It is almost impossible to track what happened to the 488 cases that did not make it through the court system, but most likely these cases were handled using an alternative response.

CPS workers or multidisciplinary teams can decide whether it is in the best interest of the child to bring the case through the criminal justice system. They may try to remove the child from the home or try to terminate parental rights in civil court where the burden of proof is a lot lower.

And while this may be the right path for some incest survivors, others feel stymied by this often-adopted solution.

Punishment for the Crime?
Many incest survivors don’t remember what happened until they are adults. By that time, much of the evidence has disappeared, restrictions imposed by the statute of limitations (which vary from state to state) also contribute to the reasons why many cases never make it to court.

Moreover, child victims are often reluctant to press cases because they fear another family member might be hurt—or that their cases will be successful and their abuser will end up in jail. And ultimately, many worry simply that they won’t be believed.

These fears kept Tesa Rigel, 31, silent for over 20 years, the eldest of four girls, she managed to repress memories that were “too ugly to think about”―until her 12-year-old younger sister confided the same thing was happening to her.

When her father ignored Tesa’s pleas to stop the abuse, she decided the most effective way of putting him in jail, while protecting her sister’s privacy, was to reveal the story of her own rape. She filed a complaint with police in her hometown of St. Louis, Missouri, and her father was duly charged with Tesa’s rape—more specifically with the rape of a child under 14. But she wasn’t prepared for what happened next.

Two years later, her father was acquitted. The trial had turned on Tesa’s credibility—not her father’s actions. Neighbors had testified that she was a promiscuous teenager who “asked for it,” and a high school guidance counselor painted her as a troublemaker—apparently ignoring Tesa’s charge that the abuse had started when she was three.

“I don’t know how a three year-old asked to be raped,” says Tesa, whose voice still shakes with anger and pain as recalls the “trauma” of the trial—a trauma, she notes, “that is almost as big as the first.”

Theodore Cross, a Visiting Research Specialist in Quantitative Analysis at the University of Illinois Children and Family Research Center, found in a 2003 study that, while child abuse was less likely to lead to the filing of charges and incarceration, when prosecutors do choose to move forward, such cases usually ended up in court.

Cross also found that prosecutions tended to be successful when victims were older, and thus more able to provide a coherent account of what happened, when caregivers were present to support the victim throughout the court process, when the alleged offender is not a biological parent or, finally, when serious threats or violence were involved.

Yet experts in the field remain divided: some believe that prosecution is the most important means of dealing with child abuse and incest; others disagree.

Victims deserve an “aggressive prosecution,” “It is important for victims, they deserve an aggressive prosecution,” insists said Scott Berkowitz, Executive Director of RAINN, a Washington DC based, national organization of Rape and Incest survivors. He’s backed up by Former Middlesex County, MA sex crimes prosecutor Wendy Murphy and author of the 2007 book “And Justice for Some” said that “Failure of prosecutors to treat these family rapes as a public crime just decriminalizes the act,” she says.

But opponents feel just as strongly. “While it is important to hold offenders accountable I don’t see that as the primary yardstick of success with any sexual abused child,” says Teresa Huiszar, executive director of The National Children’s Alliance (NCA), which provides intervention and prevention on child abuse through multidisciplinary approaches. “The most important thing is that the child victim is able to function and is protected from harm.”

Huizar says her teams have been extraordinarily successful. NCA has almost 700 centers nationwide and helped 259,000 child victims in 2009, NCA’s community-based centers provide children with one-stop access to everything from counseling to monitored interactions with CPS and law enforcement.

An additional note of caution is sounded by David Finkelhor, Director of the Crime against Children Research Center at the University of New Hampshire. “The perspective of the victim is very complicated in these cases,” he says. “Outside observers have to consider whether the prosecution agenda is their own agenda or in the best interest of child.”

But there is a strong case to be made that successful prosecutions can empower victims.

By the time Kayla Garriott’s mother found her diary, halfway through her senior year in high school, her father had been raping her for almost seven years. “It (began) right before I got my braces on at ten,” the Robbinston, Maine native recalls.

The next day, her mother took her to the local headquarters of the Maine State Police, where she told detectives her story.

“I thought I could stop it myself,” Garriott, now 21 and a college senior says in response to a question about why she didn’t say something sooner. Living in a town of 500 people, Garriott didn’t want everyone to look at her differently: “I didn’t want sympathy, I just wanted to be a senior in high school.”

After a six-month investigation, detectives were able to record one of their conversations, in which her father confessed to having sex with his daughter. After a trial, in which Kayla testified, Kevin Cobb was sentenced to ten years in jail.

Her dad’s imprisonment, says Garriott, was a “big relief.” But there was also little doubt in her mind that the process that got him there was also crucial to her recovery and self-confidence. “I am not a victim,” said Garriott, smiling like any 21-year-old co-ed without a care in the world. “I consider myself a survivor.”

Cara Tabachnick is News Editor of The Crime Report