A breach of trust

In April, Eileen Herring testified before the Senate Public Safety Committee to show her support for Senate Bill 33, which seeks to amend California laws on intra-familial sexual abuse. Herring, who claims she was a victim of incest as a child, is now a mother of four who works for the California Teachers Association. She sat before the committee and quoted Gloria Steinem: “Law and justice aren’t always the same. When they aren’t, destroying the law may be the first step toward changing it.”

Republican Senator Jim Battin of Riverside County is trying to do just that. He authored S.B. 33, known as the “Circle of Trust” bill, which seeks to remove the loopholes in California law that allow the courts to offer more lenient sentences, including probation instead of prison, to those who abuse their own family members rather than strangers.

As Battin says of victims on his Web site: “They were betrayed by an adult who should have loved and protected them, then they were betrayed again by California law.”

As an example of how the law has worked, Herring related, for the Senate committee, her story of being molested from the age of 6 to the age of 15 by certain family members. At age 14, reads Herring’s transcript, she became convinced that the repeated abuse was criminal. She had to call Child Protective Services on her own behalf.

In her 1979 court case, according to Herring, only one of her abusers was on trial, and the judge chose not to impose a prison sentence. “He was able to bargain a deal,” reads Herring’s transcript, “probation and community service.” Herring’s testimony explained that the state expected her to support the family’s reunification by attending counseling with her abuser. “I refused to attend the first counseling session but was told that if I did not attend the sessions, I would be placed in juvenile hall.”

Now, Herring said in an interview, there’s not even a court file related to her case. After treatment and family reunification, the perpetrator’s record was cleared.

S.B. 33 seeks to avoid any more cases like Herring’s. It would limit a judge’s discretion to sentence a perpetrator to probation and psychological treatment rather than prison if the perpetrator is part of the victim’s household—thereby closing a loophole described by author and attorney Andrew Vachss as “a criminal justice bonus to predators who grow their own victims.” S.B. 33 also would limit “deferred judgment,” which wipes clean the perpetrator’s record after five years. Finally, the bill seeks to define incest as between children 14 years and older.

Herring’s situation, according to some analysts, is unusual because judges rarely offer probation to intra-family sexual abusers. For an abuser to be eligible for probation, a long list of criteria must be met: Probation must be in the best interest of the child, rehabilitation must be feasible, and there must be no threat of physical harm to the child.

Throughout the summer, as the bill has moved through various legislative committees, the arguments against it tended to focus more on the issue of judicial discretion than on the rights of the victims or their abusers.

As the American Civil Liberties Union said in a letter of opposition, “The numbers of defendants who actually qualify for this probation/treatment option are few; but if the facts and circumstances show that a defendant has the potential for rehabilitation, the court should have the option to impose this alternative punishment.” A letter of opposition from the California Judges Association states that “while CJA appreciates concern for the victims of child abuse and their families, we believe this bill is an unnecessary infringement upon the traditional discretionary functions of public prosecutors and the courts.”

Throughout California’s decades of debate over sexual-abuse laws, numerous arguments have arisen for treating familial abusers with more leniency than those who abuse strangers. Sometimes, explained Ron Kokish, a former board member of the California Coalition on Sexual Offending, a victim wants the continued financial support of the abuser, which he or she will lose if an offending parent goes to prison. This is sometimes referred to as the “breadwinner argument”—the idea that a child is safer and more secure in a home where the main wage earner can continue to support the family financially.

“Keeping a parent or guardian in the household because they are the ‘breadwinner,’” according to Herring, “is nothing more than prostitution.”

The list of supporters for S.B. 33 is nonpartisan and includes the California District Attorneys Association, the California Women’s Law Center, various law-enforcement agencies, and city and county governments. The bill is part of a campaign by the National Association to Protect Children, a nationwide children’s advocacy group.

The bill passed in the Senate in spite of significant opposition from Senator Carole Migden and passed in the Assembly Committee on Public Safety in spite of opposition from the committee’s chairman, Mark Leno.

The bill was re-referred to the Assembly Committee on Appropriations and likely will be heard in late August after the Legislature returns from summer recess.