AMONG HUNDREDS of new laws that went into effect at the beginning of the month in California, one quietly ended a sordid era in which a class of convicted child sex abusers never served jail time, and the children they abused were often forced to help in their attempts at rehabilitation.
This sorry chapter in the state's history began in 1981, when an "incest exception" law was passed by the Legislature. It allowed judges to grant probation to men (and women) even though they had been convicted of abusing their sons, daughters, stepchildren, nephews, nieces, cousins or grandchildren, all because incest was deemed different -- and less criminal -- than "stranger" pedophilia.
Activists, victims and prosecutors have lobbied over the last few years to change the law and similar statutes in 36 other states. By 2003, North Carolina, Illinois and Arkansas had repealed their incest exception laws; it's hoped that California's change will increase the ripple effect.
Why would a crime that usually results in an automatic prison sentence ever have been given a free ride? Because two decades ago what was most crucial to many family activists was keeping families intact. Groups such as Parents United lobbied for the incest exception, claiming that relatives who abused children were "situational offenders," not pedophiles. Life stress was said to have induced them to abuse once or twice. With a little therapy, it was claimed, situational offenders would never abuse a child again.
Hank Giarretto, a psychologist and the executive director of Parents United in 1981, testified in Sacramento that lawmakers needed to be careful that the "father offender" who "had, usually, a very outstanding career both in industry and in his place in his community," was not mixed up "with the type of offender, the predator, the type of fellow who stalks his victims or who sets up situations through which he can molest these children."
By 1994, however, the American Psychiatric Assn. had rejected the idea of situational offenders, finding instead that there was no difference between a person who sexually abuses a stranger and one who sexually abuses his own child.
The awful irony of incest exception laws is that most sexual abuse of children 5 and younger occurs within families. Later, teachers, coaches, priests and neighbors join the relatives. Only 7% of child sex abusers are strangers.
Rosanne Froeberg, an assistant district attorney who heads Orange County's sexual assault unit, says that "the harm done to a young girl who loses her chastity to a father or grandfather who continually abuses her has a much more far-reaching effect than a one-time assault by a stranger."
As the high incidence and serious consequences of child sex abuse within families have become better understood, district attorneys in many counties in California stopped recommending probation under the old law. But judges often granted it just the same, and it's not known how many child sex abusers walked free because of the 1981 law. No agency ever compiled the data.
Eileen Herring knows of one -- her own father. Herring, a 40-year-old mother of two teenage daughters, testified in support of the new California law.
Her father began sexually abusing her when she was 12. When she was 14, Herring (her married name) mentioned the abuse to a friend, who helped her get in touch with Merced County's child protective services agency.
"I didn't even know what he was doing to me was against the law," Herring said.
Her father was arrested, convicted and given probation. "He said since he owned his child, he thought he could do whatever he wanted with me," she said.
Instead of a happy ending, Herring's nightmare intensified. Her father was ordered to undergo therapy. Herring, by then in a foster home where she felt safe, was forced to participate. "I was told that if I didn't go, I'd be put in juvenile hall for defying a court order."
After several weeks, the therapist "proclaimed us healed, and I was put back in my home," she said. "A couple of months later, he started sexually abusing me again."
No therapists, no police, no one from child protective services checked to find out if Herring's abuse had ended, and she felt it was useless to report her father again. She left home after high school and ended contact with him.
It's "not a family matter" when a parent or any relative abuses a child, she said. Now that California has recognized that, how long will it take the rest of the country to free sexually abused children from their familial prisons?