Problems in Defining and Investigating Child Sexual Abuse


Essay, 1997
27 Pages, Grade: 68/100 P.

Excerpt

Table of Contents

Introduction

Understanding and Clarifying 'Child Sexual Abuse': A Sociological Approach

Towards a Legal Definition of ‚Child Sexual Abuse‘

Problems in Investigating Child Abuse

Conclusion

Bibliography

Table of Cases

Introduction

Child sexual abuse as a crime kept in secrecy[1] causes problems. It often involves a sexual, inter-familiar[2] relationship between an adult and a child seen as the willing object for sexual exploitation. Statistics have shown that in most of the cases where child abuse occur they vary from serious "indecent assault" to "sexual abuse" and "penetration sex" committed against girls before reaching their puberty.[3] In most of these cases the father, step-father or a relative/friend was the perpetrator.[4] It implies that child sexual abuse takes place within a closer relationship between the child and the perpetrator reflecting patriarchal sexuality that operates with violence, fear, and threat upon the child. The Cleveland affair revealed in 1987 that 545 complaints about child sexual abuse were recorded.[5] However, in only 18 of these cases there could be established medical proof upon the fact that child sexual abuse had taken place.[6] But what is about the peculiarity of child sexual abuse? How can the complexity of child sexual abuse be grasped? And what is about the legal practitioners (British police and prosecutors) who use criminal law for the detection of sexual offenders? This essay will focus on the sociological as well as on the legal approach of child sexual abuse to search for a definition. It is useful to examine the sociological approach in this context because it might help to understand the multidimensionality and complexity of the topic. The task to look at the problem of child sexual abuse through the legal perspective is important because it can be revealed what kind of legal mechanism can influence the criminalisation of sexual offences and how the multidimensionality, as presented within the sociological context of the topic, is reduced on the level of substantive criminal law in Great Britain.

For this reason, I will examine and criticise the criminal concept of consent and the offender's state of mind (mens rea) in the field of rape. Finally, I will refer to the area of legal practice and look at the main difficulties police officers and prosecutors have with respect to the detection of child abuse.

Understanding and Clarifying 'Child Sexual Abuse': A Sociological Approach

Defining 'child sexual abuse' is a difficult task. On the one hand, the phenomenon 'child sexual abuse' helps us to understand why children are the object of such a sexual abuse. On the other hand, extensive scientific explanations of what constitutes the term 'child sexual abuse' cannot give a full description of how child abuse is individually experienced. Moreover, when going deeper into the question of child sexual abuse, one will feel disappointed about the fact that there exists no universally accepted definition[7] regarding the term 'child sexual abuse'. However, it is valuable at the first stage to define 'child sexual abuse' as seen from the sociological viewpoint to recognise how this approach can describe the relationship between the abused child and his/her abuser. Finkelhor describes child sexual abuse as "sexual encounters" where children, either aged fewer than thirteen or between thirteen and sixteen, are involved with persons "at least five years older". Child sexual abuse includes "intercourse, anal-genital contact, fondling or an encounter with an exhibitionist"[8]. This explanation tries to interpret child abuse as a relationship between the child and the adult based upon the age difference. Secondly, child sexual abuse is a sexual relationship that includes various sexual forms and practices. However, Finkelhor does not precisely fix the problem of child sexual abuse. Because child sexual abuse can also comprise aspects of child neglect, emotional abuse, and other non-physical forms of abuse.[9] Moreover, this definition is not able to explain the specific differences between the abuse of adults and the abuse of children. When interpreting child sexual abuse in the light of 'intentions of the actor and the act's effect upon the child'[10] that it produces, Parton wants to emphasise that the abuser's motives could also have an impact on the child's behaviour. However, the last explanation fails to say whether there is something distinct about child abuse.

Baker/Duncan understand child abuse in a broader sense, namely "when another person, who is sexually mature, involves the child in any activity with the other person expects to lead to their sexual arousal"[11]. In their understanding child sexual abuse serves as a measure to bring sexual gratification to the adult.

A Similar approach is taken by Schachter/Roberge. They claim that the child's dependency and immaturity is the distinguishable criteria in relation to the adult. Child sexual abuse is regarded as the "involvement of dependent, developmentally immature children and adolescents in sexual activities they do not fully comprehend, to which they are unable to give informed consent"[12]. Their opinion is useful as it suggests that there exists a dependent relationship between the child and the adult. Within this relationship, the child takes up an inferior position in comparison to the abuser. As being dependent upon the care and supervision of his parents, the child cannot influence the power relationship with his parents. In addition, the lack of equal knowledge, the full trust and belief in his/her parents may constitute and maintain the powerful relationship. In the context of sexual abuse, the inferior child thus can neither decide on his/her own to refuse any sexual relation with the abuser, nor could his/her will and wishes to stop such abuse be considered and recognised by the adult perpetrator.

The attempts undertaken by the research to clarify the term 'child sexual abuse' has revealed that the feature of power difference between the child and the abuser plays a crucial role in understanding child sexual abuse. The structural power relationship enables the perpetrator to sexually exploit the child for his own purposes, to treat him as an object without being recognised as an individual enjoying equal rights. Because of being subject to the sexual exploitation and power of the abuser, the child cannot give informed consent. In fact, the last definition is informative for the understanding of child sexual abuse that the child's dependency and his/her lack of power as well as his/her immaturity characterises accurately the specific relationship between the abuser and the child.

Another suggestion is made by MacLeod/Saraga to explain 'child sexual abuse'. They represent a feminist, more child-centered approach to the problem. By criticising the traditional definitions, they state that the child's personal experience regarding the abusive act[13] should be more considered, especially, what sort of experiences the abused child has experienced. The suggested point of view thus can be helpful to disclose the inner world of a child to discover any harmful effects and traumas that the child may suffer. Furthermore, the last approach can significantly contribute to break down the secrecy of child abuse that often takes place in privacy within the family because a child-centred approach might remove some of the difficulties that exist when adults try to interpret and 'translate' the child's disclosure of a sexual abuse into their own terms and language.

These definitions presented therefore contribute to a narrower understanding of 'child sexual abuse'. What they have in common is the attempt to define child sexual abuse in a broad sense. Child sexual abuse takes place within the powerful relationship between the adult and the child that is constructed upon the child's familiar dependency as well as his/her lack of knowledge and immaturity. These features place the child in an inferior position in comparison to the parent. Within this position the child becomes a willingless object serving for the sexual gratification of the abuser. Child sexual abuse should also be seen from the child's perspective. His/her emotional and psychological traumas s/he has experienced during the abuse can help to understand the complexity of child sexual abuse.

In so far, the sociological approach thus focuses primarily on the powerful sexual relationship between the abuser and the sexually exploited child. However, there are still some questions unanswered: In which way does the abuser sexually exploit the child within the powerful relationship? How is child sexual abuse recognised under legal terms? Considering these aspects, one should examine how British criminal law defines child sexual abuse.

Towards a Legal Definition of ‚Child Sexual Abuse‘

In this section, I will try to find out how British law constructs and deals with child sexual abuse. Therefore, it is necessary to look at the repressive concept of law and to examine the legal conditions under which child sexual abuse is punishable. The first interesting point is the non-existence of a uniformly used definition of the term 'child'. Where criminal law defines a child aged below thirteen[14] or under the age of sixteen years[15], the Children Act 1989 is applicable only to children under the age of eighteen.[16]

Referring now to the area of criminal law, we ought to find out what constitutes 'child sexual abuse'. British criminal law protects children under the age of 16 years against any sexual, consensual relations by means of provisions prohibiting sexual intercourse[17], indecent assault[18] or indecency with children.[19] These sexual offences criminalise the use of violence and threat that render sexual intercourse as a sexual offence. When speaking of indecent assault, case-law has already emphasised that the performance of sexual intercourse must either be "a hostile"[20] or a "threatening act which the child is demonstratively reluctant to accept"[21].

This shows that the use of violence and threat to force sexual intercourse are inevitably linked with the meaning of indecent assault. The objective and purpose for the establishment of sexual offences, in the case of assault, was - to protect immature children - mentioned in Director of Public Prosecutions v. Morgan where the Parliament considered that "a girl under 16 is generally unlikely to be sufficiently mature to realise the full implications of sexual intercourse"[22]. In my opinion, sexual offences against children aim to secure the child against any sexual exploitation and sexual dependency due to the child's immaturity and his/her sexual inexperience. In addition, the penal protection of certain intimate parts of the child's body is also legally granted through the non-applicability of consent. Normally, consent is interpreted as a lawful excuse[23] on which the defendant can rely on in the context of sexual offences.

[...]


[1] Campbell (1988), p. 69.

[2] See, for example, Bray, in: Levy (1994), p. 63.

[3] Compare, e.g., MacLeod/Saraga, in: Feminist Review (1988), p. 21, and Conroy/Fielding/Tunstill (1990), p. 52, finding out that 58% were girls and two-thirds of all children (62%) were under the age of ten years. Radzinowicz (1957), p. 28, even speaks of 78% of the children under the age of 14 years who were victims of an "indecent assault".

[4] Conroy/Fielding/Tunstill (1990), pp. 54-55 and Campbell (1988), p. 62.

[5] Campbell (1988), p. 1.

[6] Campbell (1988), p. 2.

[7] Parton (1985), pp. 133-134. Because of the lack of a precise definition of 'child sexual abuse’, practitioners are unable to provide adequate solutions when being confronted with child abuse, see p. 133.

[8] Finkelhor (1984), pp. 23-24.

[9] See the Department of Health (1991), para. 6.40, stressing that child abuse contains all kinds of child sexual abuse, such as neglect, physical injury, sexual abuse, and sexual and emotional abuse. The latter one is defined as an "actual or likely severe adverse effect on the emotional and behavioural development of a child caused by persistent or severe emotional ill-treatment or rejection". See also Bray, in: Levy (1994), p. 63.

[10] Parton (1985), p. 133.

[11] Baker/Duncan (1985), p. 458.

[12] Schachter/Roberge (1976), p. 60.

[13] MacLeod/Saraga, in: Feminist Review (1988), p. 18-19.

[14] For instance, s.5, Schedule 2, Part I, of the Sexual Offences Act 1956 prohibits unlawful sexual intercourse with a girl under the age of thirteen years.

[15] Compare, for instance, s.6(l) of the Sexual Offences Act 1956.

[16] See s.105(1) of the Children Act 1989.

[17] See ss.5(l) and 6(1) of the Sexual Offences Act 1956.

[18] Compare, e.g., ss. 14(1) and (2) of the Sexual Offences Act 1956.

[19] See s. 1(1) of the Indecency with Children Act 1960 establishes the ground for any punitive sanction in the case where a person commits an act of gross indecency with a child under the age of fourteen. Pursuant to s.44 of the Sexual Offences Act 1956.

[20] See Beal v. Kelley [1951] 2 All ER 763, at p. 764. Compare also, e.g., Faulkner v. Talbot [1982] 74 Cr.App.R. 1, at p. 7, where the Lord Chief Justice points out that "intentional touching of another person without the consent" has not to be "hostile or rude or aggressive". The defendant, a woman, invited the 14-years-old boy, having left his parents, to sleep with her in bed. She pulled the boy on the top of her body and put his penis inside her vagina. The woman was charged with having indecently assaulted him contrary to s.15(2) of the Sexual Offences Act 1956. However, the problem laid on the question whether the female offender had a lawful excuse. The Lord Chief Justice pointed out that a lawful excuse could not be seen in the fact that the juvenile victim had consented to the woman's behaviour because "the boy could not in law consent" to the touching.

[21] R v. Thomas [1985] 81 Cr.App.R. 331, at p. 334. Here, the appellant was charged of having committed an indecent assault against two girls aged 11 and 12 years. Lord Lane, the Lord Chief Justice of the court of criminal appeal, dismissed the case because the touching of a girl's skirt "was not to be considered as indecent". (at p. 334). See also the case of Director of Public Prosecutions v. Rogers [1953] 2 All ER, 644, at p. 645, where Lord Goddard C.J. emphasised that the defendant, when telling her daughter to masturbate him, did not use any "threat or gesture which would be taken as a threat, or by putting a reluctant child towards him".

[22] See Director of Public Prosecutions v. Morgan [1975] 61 Cr.App.R. 136, at p. 156.

[23] See Faulkner v. Talbot [1982] 74 Cr.App.R. 1, at p. 8 where the judges refer to the question of consent as an "lawful excuse" pursuant to s. 15(2) of the Sexual Offences Act 1956. For the functional concept of consent regarding responsibility, see Koh (1968), pp. 81 ff., 156 ff.

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Details

Title
Problems in Defining and Investigating Child Sexual Abuse
College
Lancaster University  (Law Department)
Course
LLM 307: History of Women, Gender and the Legal Order
Grade
68/100 P.
Author
Year
1997
Pages
27
Catalog Number
V358047
ISBN (eBook)
9783668430457
ISBN (Book)
9783668430464
File size
671 KB
Language
English
Tags
Child Abuse, Sociological Approach, Legal Definition
Quote paper
Dr. Andreas-Michael Blum (Author), 1997, Problems in Defining and Investigating Child Sexual Abuse, Munich, GRIN Verlag, https://www.grin.com/document/358047

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