Incest Loophole Evidence
New York Law Journal
July 21, 1988
New Law Needed for Incest
Prisoner Jean Harris will soon be a candidate for executive clemency, having served half of her minimum sentence. Opinions on the viability of granting clemency vary, and this is not addressed to the specifics of Ms. Harris's situation but rather to the context within which the dispute has arisen. While combatants on either side of the clemency issue vary in their interpretation of the facts and motivations surrounding Ms. Harris's prior conduct, there is general consensus that had the jury been presented with options other than the polarities of conviction for murder and acquittal, a compromise was a real possibility. Such a compromise (say, for example, manslaughter) would have rendered the issue of clemency moot at this time. In Ms. Harris's case, the decision not to present the jury with a greater range of options was that of the defense. Thus, the jury was given a choice between intentional, pre-meditated murder and accident.
The purpose of this editorial is to address those cases in which limitations are not a matter of choice, but a matter of legislation. The most glaring example is PL §255.25, incest. In New York State, incest is a Class E felony, the lowest felony count possible. I submit that this very classification represents a legislative assault on all incest victims in that it implies, nay commands, the disenfranchisement of the jury's proper province. Incest is not a "sex crime." [Indeed, it is listed as an "Offense Affecting the Marital Relationship." So is adultery.] It is, in fact, a crime of violence, and abuse of power, and arises from a complex series of (often evil) motivations. Were this same definition
offered for the crime of rape or of forcible sodomy, agreement would be near-universal. Incest, as conceptualized by the Legislature, actually implies a bizarre form of "consent" by the victim. As currently written, the law is, in my opinion, properly applied only to criminalize sexual intercourse between consenting adults who are appropriately matched as to age and power. Classic examples would be brother and sister, or uncle and niece. But incest, as it typically appears in our courts (when it appears at all), should not be a Class E felony.
We need a new law. A child can not "consent" to sexual intercourse, and a child's ability to resist sexual intrusion by an all-powerful family member is virtually non-existent. Unless and until juries can be made to understand that incest is nothing less than rape-by-extortion, it will continue to be treated as a relatively "minor" crime, always probation-eligible, and with victims, especially teenagers, often perceived as complicitous. Juries are microcosms of society — a society in which we grant legislators a leadership role. The Legislature sets the tone for our perception of criminal behavior. Unless the Legislature acts, unless we have a new statute, one which denominates incest as a crime of violence, we will continue to have two classes of victims: intra-familial and strangers. We cannot continue to reward a certain class of criminals simply because they have biologically produced their own victims.
"Hot Lines" are helpful. Therapeutic assistance to victims is necessary. Increased public awareness of the incest dynamic is valuable. But incest is not a "minor" crime; incest is not a "sickness." It is the foulest sex crime of all — the rape of childhood. And a practical, moral legislative response is long overdue.
Andrew H. Vachss
New York, N.Y.
1998 April 27 (Monday) @ 13:37
Hon. Dennis C. Vacco
Attorney General of the State of New York
Albany NY 12224-0341
Dear Mr. Vacco:
Walter Anderson, editor-in-chief of Parade, was kind enough to forward a copy of your letter to him of April 2nd concerning my article in the March 29th issue. I have been on tour for my new book, and this is my first opportunity to respond.
While I applaud your efforts at combating those who prey upon our children, I confess to disappointment that you have not used your powerful (and national) voice to champion the elimination of the so-called "incest exception" which, literally, rewards perpetrators for growing their own victims. This is no hyperbole, sir: Compare the consequences of raping a stranger's child (PL §130.35, an appropriately-titled "sex offense" which properly assumes that no child less than eleven years of age is capable of "consent" to sexual intercourse) with that of raping one's own child (PL §255.25, an "offense affecting the marital relationship"). As we both know, no "force" is usually required for a parent to violate a small child. And as a career prosecutor, you know that media "evaluations" are usually driven by conviction rates, and that the availability of "charge bargaining" B felonies down to the E level (with its possibility of probation even if convicted of highest count) is an inducement no prosecutor should be tempted with. The "incest exception" is an abomination, and I would hope that Dennis Vacco would be the leader of a national movement to abolish it forever. You have the voice, the forum, and the commitment. If you lead, I know other states will follow.
To: GRACEANN SMIGIEL 2 pgs
From: Andrew Vachss
Date: 6 1998 June 02 (Tuesday) @ 11:09
Re:The "incest exception" * counter-attack
Further to our conversation, consider the following as the basis of an argument which might actually eliminate the so-called "incest exception" which, literally, rewards perpetrators for growing their own victims. This is no hyperbole: Compare the consequences of raping a stranger's child (PL §130.35, an appropriately-titled "sex offense" which properly assumes that no child less than eleven years of age is capable of "consent" to sexual intercourse) with that of raping one's own child (PL §255.25, an "offense affecting the marital relationship," listed right past adultery). As we both know, no "force" is usually required for a parent to violate a small child. And you also know that pre-election media "evaluations" of prosecutors are based on conviction rates. Therefore, the availability of "charge bargaining" B felonies down to the E level ("incest," with its possibility of probation even if convicted of highest count) is an inducement no prosecutor should be tempted with.
The "incest exception" is disgrace to New York (by the way, NY is hardly the only offender—with few exceptions, all states have some version of this legislative kiddie porn), and I can't see the current candidates for Attorney General not responding with a promise to make this change. What change? One lousy word!
The current statute reads as follows:
PL §255.25. Incest.
A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person who he or she knows to be related to him or her ... [goes on to cover even uncles].
The child-protective revision would require only this change:
PL §255.25. Incest.
A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with an adult who he or she knows to be related to him or her ... [goes on to cover even uncles].
The additional bonuses are many: (1) if candidates for AG are forced to take a position, there are those who would hold them to that position after the election; (2) other legislators (and candidates) would have to respond as well; (3) the issue would be perspectified for all citizens; (4) if passed, that protection of children becomes a national voice, and other states could pick up the challenge. This is, without exaggeration, to change the game when it comes to those who prey on children.*
I just wrote on this subject (absent the NY State specificity outlined above) ... for full text, go to: www.vachss.com. The reaction has been astounding (including letters from legislators) and universally supportive ... except for the freaks who claim such a change would be "anti-family." But you have a chance to aim at a real target ... pre-election politicians are the easiest of all.
Anything more you want/need on this, just let me know.
Keep your strength,
*Just in case there is a claim that incest offenders are "different" (i.e., not predatory pedophiles, but "intra-family transgressors, especially amendable to treatment ... a claim advanced by defense attorneys and those providing such "treatment" alike), be aware of "The Differentiation of Intrafamilial and Extrafamilial Child Heterosexual Child Molesters" by Barsetti, Earls, Lalumière, and Bélanger in the Journal of Interpersonal Violence, Vol. 13, No. 2, pp. 275-286 (April 1998 ... how's that for current?) which measured arousal to sexual stimuli among those groups (and a control). The finding? NO difference in arousal patterns between incest offenders and predatory pedophiles.