Child Molesting

Fundamentals of Criminal Law by Adam J. McKee

Child molesting is a reprehensible crime that involves an adult engaging in sexual activities with, or in the presence of, a minor. The term ‘minor’ generally refers to individuals under the age of 18, although the specific age may vary between jurisdictions.

In many legal systems, child molesting is strictly penalized due to the severe physical and psychological harm it inflicts upon the victims. The offense encompasses a variety of immoral acts, such as touching, exposure of sexual organs, engaging in sexual acts, and exploiting the child in pornography. Predatory actions are often executed by leveraging power and manipulating the child’s trust, thereby making it both a brutal and particularly insidious offense. The underlying commonality is grossly violating a child’s rights and well-being.

The Harm

The legislative imposition of stern laws against child molestation seeks to prevent multifaceted harm. Firstly, it aims to shield minors from the immediate physical, emotional, and psychological trauma caused by sexual exploitation. This trauma can persist and cascade into adulthood, often materializing as mental health struggles, disrupted social relations, and an impaired sense of self-worth (Fergusson, Lynskey, & Horwood, 1996). Moreover, lawmakers intend to safeguard the moral and social fabric of society by holding violators accountable for corrupting the innocence and well-being of the youngest and most vulnerable members. The law also acts as a deterrent, signaling the societal unacceptability and punitive consequences of such predatory actions, hence intending to discourage potential offenders. Furthermore, the protective legal framework aims to reassure society, especially guardians, of the state’s commitment to safeguarding children and upholding justice.

Classification of the Crime

Child molestation is typically classified as a felony in most legal codes due to its grievous nature, underscoring the serious social, moral, and individual consequences it precipitates. This classification is indicative of the weight that the legal system places on protecting minors and penalizing offenders. Felonies are regarded as the most serious type of crime and are often punishable by imprisonment for over one year or by death in jurisdictions that permit capital punishment. The exact classification and consequent punitive measures may, however, vary between jurisdictions, reflecting differing cultural, social, and legal contexts and perspectives on justice and retribution.

Child Molesting Within Broader Criminal Categories

Child molesting prominently fits into the category of crimes against persons due to the direct and invasive harm it inflicts upon the individual victim. It involves a blatant violation of personal integrity, safety, and autonomy. The intimate violation distinguishes it from many other offenses by its deeply personal and traumatic impact on the victim. Although it is inherently a crime against a person, it transcends this category as it does not just inflict physical harm but severs the fundamental human right to safety and violates sexual autonomy. It is, thus, considered one of the most heinous crimes due to its potentially long-lasting and multifaceted impact on the individual, society, and collective morality.

From Ancient Codes to Modern Law

Child molestation, despite its evident moral and physical harm, has not always been recognized and penalized by legal systems as it is today. In ancient Rome, for instance, sexual relations with freeborn male minors were largely condemned, while those with slaves or prostitutes were often overlooked (Cantarella, 1992). Conversely, the ancient Greek culture, particularly in Athens, somewhat normalized pederasty, wherein adult men formed sexual relationships with adolescent boys, typically without societal reprimand (Dover, 1989).

The modern conceptualization and penalization of child molesting have largely evolved from the confluence of societal, moral, and legal developments over centuries. Sir William Blackstone, a seminal figure in common law jurisprudence, delineated the legal principles in his work, “Commentaries on the Laws of England” (1765-1769), highlighting that rape, which he described as the “carnal knowledge of a woman forcibly and against her will,” was a crime of severe magnitude. However, Blackstone’s interpretation did not encompass a broader understanding of child molestation as understood today.

It is critical to recognize that the contemporary stringent legal stance against child molestation, embodying comprehensive definitions and punitive actions, is the product of centuries of evolution and shifting societal norms. The modern legal framework acknowledges a more nuanced understanding, recognizing a spectrum of abusive actions as criminal, thus, progressively aiming to shield minors from a broader range of exploitative circumstances.

MPC Definition of Child Molesting

In the United States, child molesting is considered one of the most heinous crimes, and perpetrators are prosecuted to the full extent of the law. The Model Penal Code (MPC), while an influential resource, is not a binding legal document but rather serves as a guide for state legislatures in crafting their criminal statutes. Child molestation is not explicitly defined in the MPC, but it falls under the broader category of sexual offenses, particularly against minors.  In other words, ‘child molesting’ is a catch-all description, not a specific crime.  Most jurisdictions will have several crimes that can fall under that category.

Legal Definitions and Implications

Sexual offenses against children can encompass a myriad of actions, including sexual assault, sexual contact, and utilizing a child in sexual performances. States have adopted and modified these general guidelines, creating a spectrum of definitions and punishments for child molesting that are anchored in the underlying principles outlined in the MPC.

Specifically, sexual assault is generally perceived as engaging in sexual acts with another person without their consent, which is further complicated when minors are involved because they are legally incapable of providing consent. These stipulations are detailed in various sections of the MPC. For instance, Section 213.1 of the MPC discusses rape and related offenses, establishing the framework within which sexual crimes, including those against children, can be understood and penalized.

Within various jurisdictions, penal codes tend to categorize child molesting as a first-degree felony due to the gravity and the invariably non-consensual nature of the crime. It’s worth noting that legislative enactments and legal interpretations regarding child molesting have progressively evolved to afford better protection to minors and ensure that offenders are aptly penalized.

Defenses to Child Molesting

While defending a child molesting charge is complex and sensitive, legal systems provide avenues for fair adjudication. Some defenses may include arguing the absence of sexual intent, mistaken age, or wrongful accusations. However, the MPC and state laws typically restrict the applicability of these defenses in child molesting cases. For example, MPC Section 213.6(1) stipulates that ignorance or mistake regarding the victim’s age is not a defense unless it falls within certain specified exceptions, which are narrowly construed due to the overarching objective of protecting minors.

It’s critical to note that defenses do not excuse the offense but may serve to mitigate the sentence or culpability. Legal defenses in cases involving sexual offenses against children are tightly regulated to prevent misuse and ensure the unwavering protection of minors.

The Arkansas Example

Crimes of a sexual nature involving minors are gravely regarded under Arkansas law, reflecting the universal ethos of safeguarding children against sexual exploitation and harm. The Arkansas Code provides a detailed and categorical structure for various sexual offenses and specifically underscores distinct regulations and penalties for offenses involving minors.

Title 5, Criminal Offenses, of the Arkansas Code, enumerates various sexual offenses. Particularly, Chapter 14 of Title 5 addresses “sexual offenses,” providing a comprehensive and categorical delineation of various sexual crimes and their subsequent penal consequences. Amongst these, offenses such as sexual assault, sexual indecency with a child, and internet stalking of a child are explicitly outlined, indicating the nuanced appreciation of various contexts and mediums through which sexual offenses against children may be perpetrated.

For instance, under Arkansas Code Ann. § 5-14-127, “Sexual Assault in the First Degree,” an offender is guilty if they engage in sexual intercourse or deviate sexual activity with a minor who is less than 14 years old, and the offender is more than three years older than the victim. Such an offense is classified as a Class A felony, reflecting the stringent punitive stance Arkansas adopts against sexual crimes involving children. Similarly, in compliance with Arkansas Code Ann. § 5-14-110, “Sexual Indecency with a Child,” it is an offense for an individual, being 18 years of age or older, to solicit a person less than 15 years of age, or the offender believes to be less than 15 years old, to engage in sexual activity, which can even include exposure of sexual organs for arousal.

Moreover, in the contemporary digital age, Arkansas law vigilantly recognizes the nefarious exploitation of online platforms to perpetrate sexual offenses against minors. Specifically, under § 5-27-306, “Internet Stalking of a Child,” the law comprehensively details offenses involving soliciting minors through the Internet for sexual purposes or engaging in explicit sexual conversations with minors online, thereby reflecting a cognizant appreciation of the multifaceted nature of sexual offenses against children.

These stipulations within the Arkansas Code are indicative of the commitment to protecting minors from sexual exploitation and harm. Arkansas law meticulously establishes distinct offenses, tailored definitions, and structured penalties in response to the numerous contexts and manners through which sexual offenses against minors may transpire, ensuring comprehensive legal responses and safeguards against such heinous crimes.

References and Further Reading

Blackstone, W. (1765-1769). Commentaries on the Laws of England (Vol. 1-4). Clarendon Press.

Cantarella, E. (1992). Bisexuality in the Ancient World. Yale University Press.

Dover, K. J. (1989). Greek Homosexuality. Harvard University Press.

Fergusson, D. M., Lynskey, M. T., & Horwood, L. J. (1996). Childhood sexual abuse and psychiatric disorder in young adulthood: II. Psychiatric outcomes of childhood sexual abuse. Journal of the American Academy of Child & Adolescent Psychiatry, 34(10), 1365-1374.

American Law Institute. (1985). Model Penal Code and Commentaries (Part II, sec. 213). American Law Institute.

Modification History

File Created:  07/17/2018

Last Modified:  10/03/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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