Child Abuse and the Law - Closing The Legal Loophole Of The "incest Exception" In Some State Laws

In about forty states an "incest exception" is found in criminal codes and sentencing guidelines. This means that a person who commits incest (sexual abuse of a family member) gets off with a lighter sentence, if any at all, compared to a person who sexually abuses another's child. In some states, a family member who commits incest with a child is charged with a misdemeanor. In other states the molester can get off with probation and therapy. Children's lawyer and author Andrew Vachss first brought up the incest exception issue in a Parade magazine article, "Our Endangered Species: A Hard Look at How We Treat Children" (March 29, 1998). Vachss is an advisory board member of the National Association to Protect Children, which is an organization working to change incest laws in different states.

In 1999 a bill was introduced in the U.S. Congress that would have banned states from treating rape committed by a biological relative as a lesser crime than the rape of a stranger. That legislation was not enacted, and, as of 2004, no such federal law had been passed. In the meantime, the National Association to Protect Children decided to fight the incest exception one state at a time. In 2002 the association was instrumental in North Carolina in changing its archaic incest law of 1879. House Bill 1276 closed "the legal loophole that exist[ed] under the state's incest laws by equalizing punishments for crimes committed against children without regard to familial status." Prior to the new legislation, a father who raped his child was found guilty of minor felony, punishable by probation, and an uncle who raped his niece was required to perform forty-five days of community service for the misdemeanor offense of incest. In April and May of 2003 Arkansas and Illinois, respectively, reformed their incest laws. Under Arkansas' old incest laws an adult who raped a child in his or her own family was considered guilty of incest and was either fined or put under probation. In Illinois the old incest laws imposed a punishment of probation or two years of counseling.