Law Change Provides More Punishment for Incest Perpetrators
by Trish Hollenbeck
Originally published by the Northwest Arkansas Times, July 25, 2004
A law passed in 2003 by the Arkansas Legislature that increases the penalty for incest of minors from a Class A to a Class Y felony was a landmark move and one other states should follow, according to a national child sexual abuse advocacy group.
A case in which a man pleaded guilty to two counts of incest this week in Washington County Circuit Court involved at least two incidents of sexual contact that occurred before the law change became effective.
Patrick Joseph Powers' sentencing is scheduled for August and he faces six to 30 years in prison and/or a fine of up to $15,000.
He could have been charged with rape, a Class Y felony, punishable by 10 to 40 years in prison, had the incidents occurred before the law change went into effect in July 2003, because it now includes a provision that does not require proving forcible compulsion if the act is committed against a person under the age of 18.
According to information from the National Association to Protect Children, a national membership organization that helped draft the legislation, the Arkansas Legislature "made history" in the 2003 session by becoming one of the first states in the union to overhaul its incest laws and toughen prison sentences for child sexual abuse by family members.
The legislation was introduced by Senate Majority Leader Percy Malone, D-Arkadelphia, and, according to the National Association to Protect Children, it essentially eliminates preferential treatment for criminals who rape children in their own family.
Grier Weeks, executive director of the National Association to Protect Children based in Asheville, N. C., said Arkansas is a "national model for reforming these outrageous laws" with this legislation.
Weeks said the Malone bill took aim at long-standing attitudes and policies throughout the nation that treat incest as a lesser crime than the sexual assault of a child outside the family. Under Arkansas' old law, an adult who raped a child in his or her own family could be prosecuted for incest, a Class A felony, as is the case with Powers. Rape could also be charged for abuse of a person under 14.
Although the Class A classification was tougher than a previous version for incest victims, it still did not provide for Class Y felony penalties and it only included victims under 16. The provision in the rape statute, as revised in 2003, includes any victim under 18 who has a familial relationship with the perpetrator.
Also, rape is a 70-percent crime. That means a convicted person is required to serve 70 percent of his or her time.
The law also closed a loophole in Arkansas' sexual assault law, which provided lesser punishments for a child's guardian.
Weeks said Malone's influence helped get the bill passed without a lot of prosecutorial resistance. He said some prosecutors resist the reform because it may be harder to get convictions. Some also may feel they are being questioned in how they have dealt with cases in the past. "This is major social change," Weeks said, adding that the majority of children sexually abused are from members of the family or people within their circle of trust.
The incest statute provided prosecutors with a chance to get a significant penalty for the perpetrator while not having to prove forcible compulsion for those under 16, but Weeks said the rape statute now includes older teenagers and that was something Malone wanted to do.
Incest is still on the books as a Class C felony and only applies to victims 16 and older.
Washington County Chief Deputy Prosecutor John Threet said it is difficult for juries to deal with the word rape in some cases and he said incest as a concept still carries a lot of weight. "The tag of incest is pretty horrible," he said.
CHANGING STATE LAWS
The National Association to Protect Children is continuing to try to change laws in different states. It was successful in Illinois recently, Weeks said, but lost a battle in California to toughen laws concerning familial sexual assault. The next targets are New York, Ohio and Pennsylvania. "We work on other issues too," Weeks said, "but this is what were focused on now." Last year, the organization succeeded in getting North Carolina to change its incest laws. "These children need some sense of justice. They don't just want therapy. They want somebody to tell them it is not their fault," Weeks said. "The way somebody tells anybody that is through the laws."
In Illinois, Weeks said the argument was used by the advocacy group that Arkansas—which had been the "butt of all these jokes, is more progressive than the rest of the states."
Getting tougher penalties helps the victims, said Patricia Artripe, director of Children's House in Fayetteville, a therapeutic child development preschool center and crisis intervention program for children who are victims of physical, sexual or emotional abuse and life-threatening neglect.
She said it validates the fact that the abuse was wrong and that the person broke the law when abusing the child. It also sends another message, that "the community, the people, are going to protect you," she said. "And it is not the child's fault. They did nothing wrong."
She added, "I just could not fathom how someone who sexually abused a child would be punished less than someone who stole something out of a grocery store."
