The abuse excuse and patriarchal narratives

Northwestern University Law Review

Volumn 92, Issue 4, 1998, Pages 1459-1480

  Becker, Mary E ^a  

^a NONE

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EID: 0346541829     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (117)

1. By "culture" I mean the "accumulated store of symbols, ideas, and material products associated with a social system, whether it be an entire society or a family." ALLAN G. JOHNSON, THE BLACKWELL DICTIONARY OF SOCIOLOGY: A USER'S GUIDE TO SOCIOLOGICAL LANGUAGE 68 (1995).
2. Cf. Lynne Henderson, Without Narrative: Child Sexual Abuse, 4 VA. J. SOC. POL'Y & L. 479 (1997) (arguing that major difficulty for district attorney in getting a conviction in a child abuse case is that the child abuse story lacks a credible narrative framework).
3. Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse, 92 NW. U. L. REV. 1481, 1489 n.28 (1998); see also Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549 (1996).
4. Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse, 92 NW. U. L. REV. 1481, 1489 n.28 (1998); see also Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549 (1996).
5. See Bowman & Mertz, supra note 3.
6. The Supreme Court of Illinois recently rejected a third-party liability claim. See Doe v. McKay, 1998 WL 319488 (Ill. June 18, 1998). As Cynthia Bowman points out in her Article in this issue, California has cut back on scope of third-party liability in settings other than recovered memory. See Bowman, supra note 3, at nn.22-25 and accompanying text.
7. Think, for example, of a person agreeing to buy a new car from a car dealer and then breaching the contract. Only the car dealer can sue for damages. Family members and friends who might have benefited from the new car cannot sue the breaching buyer for their losses. There is no reason to think that the parties to the contract would have agreed to such extensive liability.
8. No. 61898 (Cal. Super. Ct. May 13, 1994).
9. Bowman & Mertz, supra note 3, at 577.
10. See id. at 577-82.
11. See James W. v. Superior Court, 21 Cal. Rptr. 2d 169 (Cal. Ct. App. 1993), discussed in Bowman & Mertz, supra note 3, at 580-81.
12. Bowman & Mertz, supra note 2, at 581.
13. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
14. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
15. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
16. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
17. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
18. See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041 (1991) (noting that judges often make this assumption); Nancy Thoennes & Jessica Pearson, Summary of Findings from the Sexual Abuse Allegations Project, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL 1, 4, 12 (E. Bruce Nicholson & Josephine Bulkley eds., 1988) (same); Marcy Laurino, Special Report, Custody Wars: Moms Held Hostage, Ms., Dec. 1988, 89-95 (same). Gender bias task forces routinely describe such bias as a problem. See, e.g., Administrative Office, Judicial Council of the Courts of California, Achieving Equal Justice for Women and Men in the Courts: Draft Report of Judicial Council of California Advisory Committee on Gender Bias in the Courts 43 tbl. (1990); Meredith Sherman Fahn, Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter, 25 FAM. L.Q. 193, 195 (1991); Report on the New York Task Force on Women in the Courts, 15 FORDHAM URB. L.J. 11, 116-17 (1986-87).
19. See, e.g., Cory L. Gordon, False Allegations of Abuse in Custody Disputes, 2 MINN. FAM. L.J. 225 (1985); Harlan R. Heinz & Sharon Heinz, Emotional Incest: The Tragedy of Divorcing Families, 7 AM. J. FAM. L. 169, 171 (1993) ("[S]erious situations occur when an alienating parent [at divorce] (in most situations, the mother) blames the other for sexual abuse of a child or children."); William F. McIver, The Case for the Therapeutic Interview in Situations of Alleged Sexual Molestation, 9 Champion 11, 11-13 (1986); Domeena C. Renshaw, When Sex Abuse is Falsely Charged, 19 MED. ASPECTS HUM. SEXUALITY 44, 116 (1985).
20. See, e.g., Cory L. Gordon, False Allegations of Abuse in Custody Disputes, 2 MINN. FAM. L.J. 225 (1985); Harlan R. Heinz & Sharon Heinz, Emotional Incest: The Tragedy of Divorcing Families, 7 AM. J. FAM. L. 169, 171 (1993) ("[S]erious situations occur when an alienating parent [at divorce] (in most situations, the mother) blames the other for sexual abuse of a child or children."); William F. McIver, The Case for the Therapeutic Interview in Situations of Alleged Sexual Molestation, 9 Champion 11, 11-13 (1986); Domeena C. Renshaw, When Sex Abuse is Falsely Charged, 19 MED. ASPECTS HUM. SEXUALITY 44, 116 (1985).
21. See, e.g., Cory L. Gordon, False Allegations of Abuse in Custody Disputes, 2 MINN. FAM. L.J. 225 (1985); Harlan R. Heinz & Sharon Heinz, Emotional Incest: The Tragedy of Divorcing Families, 7 AM. J. FAM. L. 169, 171 (1993) ("[S]erious situations occur when an alienating parent [at divorce] (in most situations, the mother) blames the other for sexual abuse of a child or children."); William F. McIver, The Case for the Therapeutic Interview in Situations of Alleged Sexual Molestation, 9 Champion 11, 11-13 (1986); Domeena C. Renshaw, When Sex Abuse is Falsely Charged, 19 MED. ASPECTS HUM. SEXUALITY 44, 116 (1985).
22. See, e.g., Cory L. Gordon, False Allegations of Abuse in Custody Disputes, 2 MINN. FAM. L.J. 225 (1985); Harlan R. Heinz & Sharon Heinz, Emotional Incest: The Tragedy of Divorcing Families, 7 AM. J. FAM. L. 169, 171 (1993) ("[S]erious situations occur when an alienating parent [at divorce] (in most situations, the mother) blames the other for sexual abuse of a child or children."); William F. McIver, The Case for the Therapeutic Interview in Situations of Alleged Sexual Molestation, 9 Champion 11, 11-13 (1986); Domeena C. Renshaw, When Sex Abuse is Falsely Charged, 19 MED. ASPECTS HUM. SEXUALITY 44, 116 (1985).
23. See Thoennes & Pearson, supra note 12, at 4 (noting that between 2-20% of all family court cases dealing with custody or visitation also contain allegations of sexual abuse; since about 10-15% of divorce cases with minor children have custody contests, these authors conclude that sexual abuse allegations are likely to occur in between 2 and 15 of every 1,000 divorces).
24. David P. Jones & J. Melbourne McGraw, Reliable and Fictitious Accounts of Sexual Abuse to Children, 2 J. INTERPERSONAL VIOLENCE 27, 38 (1987).
25. See David P. Jones & Ann Seig, Child Sexual Abuse Allegations in Custody or Visitation Disputes: A Report of 20 Cases, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL, supra note 12, at 20, 29. The study included all the clinic's cases between 1983 and 1985 in which there was a legal dispute over custody or visitation and charges of sexual abuse. Not only is the sample of 20 cases very small, bias is likely because of the nonrandom nature of the population: There were several possible directions of bias in our sample. As the [clinic] had a reputation for evaluating cases and of abuse and neglect we might have been referred cases where there was an impression by at least one of the professionals involved, that abuse was indeed occurring. On the other hand, this direction of bias was probably offset by the knowledge that one of us . . . was interested in evaluating potentially false allegations. Another bias was towards seriousness and complexity. As the [clinic] is a tertiary referral resource, we tended to see complex cases, sometimes further complicated by professional disagreement. Thus we cannot claim that this series is representative of all similar cases in the Denver area. Id. at 23.
26. See David P. Jones & Ann Seig, Child Sexual Abuse Allegations in Custody or Visitation Disputes: A Report of 20 Cases, in SEXUAL ABUSE ALLEGATIONS IN CUSTODY AND VISITATION CASES: A RESOURCE BOOK FOR JUDGES AND COURT PERSONNEL, supra note 12, at 20, 29. The study included all the clinic's cases between 1983 and 1985 in which there was a legal dispute over custody or visitation and charges of sexual abuse. Not only is the sample of 20 cases very small, bias is likely because of the nonrandom nature of the population: There were several possible directions of bias in our sample. As the [clinic] had a reputation for evaluating cases and of abuse and neglect we might have been referred cases where there was an impression by at least one of the professionals involved, that abuse was indeed occurring. On the other hand, this direction of bias was probably offset by the knowledge that one of us . . . was interested in evaluating potentially false allegations. Another bias was towards seriousness and complexity. As the [clinic] is a tertiary referral resource, we tended to see complex cases, sometimes further complicated by professional disagreement. Thus we cannot claim that this series is representative of all similar cases in the Denver area. Id. at 23.
27. See Thoennes & Pearson, supra note 12, at 13.
28. See infra notes 26-33 and accompanying text.
29. See. e.g., In re E.P., C.P., & G.P., 521 N.E.2d 603 (Ill. App. Ct. 1988) (wife's parental rights terminated due to husband's sexual abuse of their children); In the Interest of A.V. & J.V., 525 A.2d 778 (Pa. Super. Ct. 1987) (wife separated from husband loses custody of infant daughter and son due to husband's physical abuse of daughter).
30. Thoennes & Pearson, supra note 12, at 5.
31. See Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others, 2 U. CHI. ROUNDTABLE 13 (1995).
32. Id. at 26.
33. 750 ILL. COMP. STAT. 5/602 (West 1994); see also COLO. REV. STAT. ANN. § 14-10-124(1.5)(f) (West 1989); FLA. STAT. ANN. § 61.13(3)(a), (j) (West 1994), amended by 1993 Fla. Sess. Law Serv. 93-188 (West); MO. ANN. STAT. § 452.375.2(8) (West 1986), amended by Mo. Legis. Serv. 162 (West); MONT. CODE ANN. § 40-4-223(1 )(b) (1985); NEV. REV. STAT. § 125.480(3)(a) (1991).
34. 750 ILL. COMP. STAT. 5/602 (West 1994); see also COLO. REV. STAT. ANN. § 14-10-124(1) (West 1989); FLA. STAT. ANN. § 61.13(3)(a) (West 1994), amended by 1993 Fla. Sess Law Serv. 93-188 (West 1986); MO. ANN. STAT. § 452.375.2(8) (West 1986), amended by Mo. Legis. Serv. 162 (West); MONT. CODE ANN. § 40-4-223(1)(b) (1985); NEV. REV. STAT. § 125.480(3)(a) (1991).
35. See Laurino, supra note 12.
36. See, e.g., In re E.P., C.P., & G.P., 521 N.E.2d 603, 606 (Ill. App. Ct. 1988) (mother, who subsequently agrees to termination of her parental rights, loses custody because of sexual abuse by children's father; mother testified that her fear of him resulted in her ignoring signs of sexual abuse of their daughters); In the Interest of A.V. & J.V., 525 A.2d 778, 778 (Pa. Super. Ct. 1987) (mother loses custody of her children because of her husband's previous physical abuse of one of them though she is now separated from the husband); In re Jeffrey R.L., 435 S.E.2d 12 (W.Va. 1993) (mother's parental rights terminated because child had been physically abused by unidentified perpetrator).
37. See, e.g., People v. Scully, 513 N.Y.S.2d 625 (N.Y. Crim. Ct. 1987) (father held criminally liable for endangering welfare of child for failure to remove daughter from mother's custody); Anne T. Johnson, Criminal Liability for Parents Who Fail to Protect, 5 L. & INEQUALITY. J. 359, 365-67 & nn.51-53 (1987).
38. See Michael v. Alaska, 767 P.2d 193 (Alaska Ct. App. 1988) (father criminally liable for mother's abuse under assault statute), rev'd, 805 P.2d 371 (Alaska 1991); People v. Bernard, 500 N.E.2d 1074 (Ill. App. Ct. 1986) (mother vicariously liable for aggravated battery committed by her boyfriend).
39. See, e.g., Johnson v. Florida, 508 So. 2d 443 (Fla. Dist. Ct. App. 1987) (mother liable for manslaughter committed by her boyfriend).
40. See, e.g., Boone v. Arkansas, 668 S.W.2d 17 (Ark. 1984) (mother convicted of second degree murder committed by her boyfriend).
41. In two recent Illinois cases consolidated on appeal, mothers were held criminally guilty of first-degree murder when their boyfriends killed their children. See Illinois v. Stanciel, 606 N.E.2d 1202 (Ill. 1992); see also Illinois v. Novy, 597 N.E.2d 273 (Ill. App. Ct. 1992) (stepmother liable for first-degree murder either because of her own acts or, in the alternative, her accountability for acts of dead child's father).
42. See, e.g., New Mexico v. Williams, 670 P.2d 122 (N.M. Ct. App. 1983) (mother criminally liable under child abuse statute for husband's abuse of four-year-old daughter despite the fact that she was pregnant and herself abused by husband); Wisconsin v. Rundle, 500 N.W.2d 916 (Wis. 1993) (overturning conviction of father held criminally liable for mother's abuse of child).
43. As far as I can tell, the tort cases all involve maternal liability for acts of a man. See MARY BECKER, CYNTHIA GRANT BOWMAN, & MORRISON TORREY, FEMINIST JURISPRUDENCE 290 (1993) (describing Minnesota case in which a jury held a mother jointly liable in tort for father's sexual abuse of daughter ($2.4 million award) and a Texas case in which a judge held a mother jointly liable for sexual abuse by stepfather ($3.4 million in damages)).
44. See Becker, supra note 21, at 27. This point holds even if most allegations of paternal abuse are fabricated (which in any event does not seem to be the case); routine disbelief of such allegations destroys the causal link between her failure to complain of his abuse and the children's continuing suffering. If she would not be believed anyway, speaking would not lead to safety for the children and could lead to greater harm for them, since speaking up would likely lead to a divorce, and one in which she might lose custody to him, thus increasing the harm to the child, who is no longer living with a concerned mother as well as an abuser.
45. See Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 225 n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991) (concluding that gay men are not more likely than heterosexual men to molest children); Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025, 1034 (1992); SAM HOUSTON STATE UNIV., CRIMINAL JUSTICE CTR., RESPONDING TO CHILD SEXUAL ABUSE: A REPORT TO THE 67TH SESSION OF THE TEXAS LEGISLATURE 22 (1980) (contending that the vast majority of sex crimes committed by adults upon children are committed by adults who are the opposite sex from their child-victims).
46. See Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 225 n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991) (concluding that gay men are not more likely than heterosexual men to molest children); Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025, 1034 (1992); SAM HOUSTON STATE UNIV., CRIMINAL JUSTICE CTR., RESPONDING TO CHILD SEXUAL ABUSE: A REPORT TO THE 67TH SESSION OF THE TEXAS LEGISLATURE 22 (1980) (contending that the vast majority of sex crimes committed by adults upon children are committed by adults who are the opposite sex from their child-victims).
47. See Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 225 n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991) (concluding that gay men are not more likely than heterosexual men to molest children); Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025, 1034 (1992); SAM HOUSTON STATE UNIV., CRIMINAL JUSTICE CTR., RESPONDING TO CHILD SEXUAL ABUSE: A REPORT TO THE 67TH SESSION OF THE TEXAS LEGISLATURE 22 (1980) (contending that the vast majority of sex crimes committed by adults upon children are committed by adults who are the opposite sex from their child-victims).
48. See Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 225 n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991) (concluding that gay men are not more likely than heterosexual men to molest children); Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025, 1034 (1992); SAM HOUSTON STATE UNIV., CRIMINAL JUSTICE CTR., RESPONDING TO CHILD SEXUAL ABUSE: A REPORT TO THE 67TH SESSION OF THE TEXAS LEGISLATURE 22 (1980) (contending that the vast majority of sex crimes committed by adults upon children are committed by adults who are the opposite sex from their child-victims).
49. See CHILDREN'S DIV., AM. HUMANE ASS'N, PROTECTING THE CHILD VICTIM OF SEX CRIMES COMMITTED BY ADULTS 216 (Vincent De Francis ed., 1969) (stating that approximately 90% sexually abused children are female); Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41, 42 (1994) (finding that 81.5% of victims were female).
50. See CHILDREN'S DIV., AM. HUMANE ASS'N, PROTECTING THE CHILD VICTIM OF SEX CRIMES COMMITTED BY ADULTS 216 (Vincent De Francis ed., 1969) (stating that approximately 90% sexually abused children are female); Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41, 42 (1994) (finding that 81.5% of victims were female).
51. See Jenny, supra note 36, at 42-44.
52. See id.; see also Glen Kercher & Marilyn McShane, Characterizing Child Sexual Abuse on the Basis of a Multi-Agency Sample, 9 VICTIMOLOGY 364, 370 (1984) (finding that 40.6% of male perpetrators were fathers or stepfathers of the victim).
53. See Jenny, supra note 36, at 43-44 (finding that more than 80% of abusers were heterosexual partners of a close relative of the victim, and that 18.5% of victims were male but only one abuser was gay (2%)).
54. See A. Nicholas Groth & A. W. Burgess, Male rape: Offenders and victims, 137 AM. J. PSYCHIATRY 806, 806-10 (1980) (reporting that 38% of perpetrators in this study had consensual encounters with both men and women).
55. See Mary J. Spencer & Patricia Dunklee, Sexual Abuse of Boys, 78 PEDIATRICS 133-38 (1986).
56. See E.M. DILAPI, LESBIAN MOTHERS AND THE MOTHERHOOD HIERARCHY IN HOMOSEXUALITY AND THE FAMILY 101-09 (Frederick W. Bozett ed., 1989); Patterson, supra note 35, at 1034; see also Anne H. Fishel, Gay Parents, 4 ISSUES HEALTH CARE WOMEN 139, 150 (1983) (reporting that children of gay or lesbian parents are less likely to be victims of parental sexual or physical abuse); cf. David Finkelhor & Diana Russell, Women as Perpetrators: Review of the Evidence, in CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 171, 181 (David Finkelhor ed., 1984) (illustrating the low incidence of abuse by females in general, not specifically lesbians); Groth & Birnbaum, supra note 40, at 87-89 (stating that child molesters are primarily heterosexual men).
57. See E.M. DILAPI, LESBIAN MOTHERS AND THE MOTHERHOOD HIERARCHY IN HOMOSEXUALITY AND THE FAMILY 101-09 (Frederick W. Bozett ed., 1989); Patterson, supra note 35, at 1034; see also Anne H. Fishel, Gay Parents, 4 ISSUES HEALTH CARE WOMEN 139, 150 (1983) (reporting that children of gay or lesbian parents are less likely to be victims of parental sexual or physical abuse); cf. David Finkelhor & Diana Russell, Women as Perpetrators: Review of the Evidence, in CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 171, 181 (David Finkelhor ed., 1984) (illustrating the low incidence of abuse by females in general, not specifically lesbians); Groth & Birnbaum, supra note 40, at 87-89 (stating that child molesters are primarily heterosexual men).
58. See E.M. DILAPI, LESBIAN MOTHERS AND THE MOTHERHOOD HIERARCHY IN HOMOSEXUALITY AND THE FAMILY 101-09 (Frederick W. Bozett ed., 1989); Patterson, supra note 35, at 1034; see also Anne H. Fishel, Gay Parents, 4 ISSUES HEALTH CARE WOMEN 139, 150 (1983) (reporting that children of gay or lesbian parents are less likely to be victims of parental sexual or physical abuse); cf. David Finkelhor & Diana Russell, Women as Perpetrators: Review of the Evidence, in CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 171, 181 (David Finkelhor ed., 1984) (illustrating the low incidence of abuse by females in general, not specifically lesbians); Groth & Birnbaum, supra note 40, at 87-89 (stating that child molesters are primarily heterosexual men).
59. See E.M. DILAPI, LESBIAN MOTHERS AND THE MOTHERHOOD HIERARCHY IN HOMOSEXUALITY AND THE FAMILY 101-09 (Frederick W. Bozett ed., 1989); Patterson, supra note 35, at 1034; see also Anne H. Fishel, Gay Parents, 4 ISSUES HEALTH CARE WOMEN 139, 150 (1983) (reporting that children of gay or lesbian parents are less likely to be victims of parental sexual or physical abuse); cf. David Finkelhor & Diana Russell, Women as Perpetrators: Review of the Evidence, in CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 171, 181 (David Finkelhor ed., 1984) (illustrating the low incidence of abuse by females in general, not specifically lesbians); Groth & Birnbaum, supra note 40, at 87-89 (stating that child molesters are primarily heterosexual men).
60. See E.M. DILAPI, LESBIAN MOTHERS AND THE MOTHERHOOD HIERARCHY IN HOMOSEXUALITY AND THE FAMILY 101-09 (Frederick W. Bozett ed., 1989); Patterson, supra note 35, at 1034; see also Anne H. Fishel, Gay Parents, 4 ISSUES HEALTH CARE WOMEN 139, 150 (1983) (reporting that children of gay or lesbian parents are less likely to be victims of parental sexual or physical abuse); cf. David Finkelhor & Diana Russell, Women as Perpetrators: Review of the Evidence, in CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 171, 181 (David Finkelhor ed., 1984) (illustrating the low incidence of abuse by females in general, not specifically lesbians); Groth & Birnbaum, supra note 40, at 87-89 (stating that child molesters are primarily heterosexual men).
61. See Jenny, supra note 36, at 42-44.
62. 643 S.W.2d 865 (Mo. Ct. App. 1982).
63. Id. at 866-67. The Missouri Court of Appeals also reported that the trial court found that the father hoped his son would become a homosexual, but the factual basis for this conclusion is never described. See id. at 866.
64. Id.
65. Id. at 869.
66. See, e.g., Nadler v. Superior Court, 255 Cal. App. 2d 523, 524 (Cal. Ct. App. 1967); see also Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & SOC. CHANGE 907 (1986) (suggesting affirmative steps to counter the denial of custody to lesbian mothers); Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties - Part II, 11 U. DAYTON L. REV. 275, 329-35 (1986) (tracing the effect of homosexuality on custody through the mid-1980s); Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 HARV. L. REV. 617 (1989) (analyzing the protection afforded gay and lesbian parents by the 14th Amendment); Steve Sosoeff, Comment, Assessing Children's Best Interests When A Parent Is Gay Or Lesbian, 32 UCLA L. REV. 852 (1985) (outlining the history of the denial of custody based on sexual orientation and the standards currently applied in determining custody by homosexual parents).
67. See, e.g., Nadler v. Superior Court, 255 Cal. App. 2d 523, 524 (Cal. Ct. App. 1967); see also Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & SOC. CHANGE 907 (1986) (suggesting affirmative steps to counter the denial of custody to lesbian mothers); Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties - Part II, 11 U. DAYTON L. REV. 275, 329-35 (1986) (tracing the effect of homosexuality on custody through the mid-1980s); Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 HARV. L. REV. 617 (1989) (analyzing the protection afforded gay and lesbian parents by the 14th Amendment); Steve Sosoeff, Comment, Assessing Children's Best Interests When A Parent Is Gay Or Lesbian, 32 UCLA L. REV. 852 (1985) (outlining the history of the denial of custody based on sexual orientation and the standards currently applied in determining custody by homosexual parents).
68. See, e.g., Nadler v. Superior Court, 255 Cal. App. 2d 523, 524 (Cal. Ct. App. 1967); see also Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & SOC. CHANGE 907 (1986) (suggesting affirmative steps to counter the denial of custody to lesbian mothers); Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties - Part II, 11 U. DAYTON L. REV. 275, 329-35 (1986) (tracing the effect of homosexuality on custody through the mid-1980s); Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 HARV. L. REV. 617 (1989) (analyzing the protection afforded gay and lesbian parents by the 14th Amendment); Steve Sosoeff, Comment, Assessing Children's Best Interests When A Parent Is Gay Or Lesbian, 32 UCLA L. REV. 852 (1985) (outlining the history of the denial of custody based on sexual orientation and the standards currently applied in determining custody by homosexual parents).
69. See, e.g., Nadler v. Superior Court, 255 Cal. App. 2d 523, 524 (Cal. Ct. App. 1967); see also Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & SOC. CHANGE 907 (1986) (suggesting affirmative steps to counter the denial of custody to lesbian mothers); Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties - Part II, 11 U. DAYTON L. REV. 275, 329-35 (1986) (tracing the effect of homosexuality on custody through the mid-1980s); Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 HARV. L. REV. 617 (1989) (analyzing the protection afforded gay and lesbian parents by the 14th Amendment); Steve Sosoeff, Comment, Assessing Children's Best Interests When A Parent Is Gay Or Lesbian, 32 UCLA L. REV. 852 (1985) (outlining the history of the denial of custody based on sexual orientation and the standards currently applied in determining custody by homosexual parents).
70. See, e.g., Nadler v. Superior Court, 255 Cal. App. 2d 523, 524 (Cal. Ct. App. 1967); see also Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & SOC. CHANGE 907 (1986) (suggesting affirmative steps to counter the denial of custody to lesbian mothers); Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties - Part II, 11 U. DAYTON L. REV. 275, 329-35 (1986) (tracing the effect of homosexuality on custody through the mid-1980s); Note, Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis, 102 HARV. L. REV. 617 (1989) (analyzing the protection afforded gay and lesbian parents by the 14th Amendment); Steve Sosoeff, Comment, Assessing Children's Best Interests When A Parent Is Gay Or Lesbian, 32 UCLA L. REV. 852 (1985) (outlining the history of the denial of custody based on sexual orientation and the standards currently applied in determining custody by homosexual parents).
71. See generally Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 IND. L.J. 623 (1996) (describing and criticizing nexus test).
72. See id. at 625.
73. Susan Becker, Court-Created Boundaries Between a Visible Lesbian Mother and Her Children, 12 WIS. WOMEN'S L. J. 331, 335 (1997).
74. See id. at 335-45 (describing Hertzler v. Hertzler, 908 P.2d 946 (Wyo. 1995)).
75. See id. at 335.
76. See id. at 336.
77. See id. at 335-36.
78. Becker, supra note 51, at 336.
79. See id.
80. Id.
81. Id. at 337.
82. Id. at 337 (this is the usual standard for reopening a custody or visitation order).
83. Id. at 337.
84. See Becker, supra note 51, at 338 (Pamela was given less than 24 hours to respond to the accusations and she and her counsel were present at the hearing only by phone).
85. Susan J. Becker, Child Sexual Abuse Allegations Against a Lesbian or Gay Parent in a Custody or Visitation Dispute: Battling the Overt and Insidious Bias of Experts and Judges, 74 DENV. U. L. REV. 112 (1996) (discussing the testimony of one of Pamela's experts, Dr. Larry Bloom, explaining why Miriam's statements were not credible).
86. Becker, supra note 51, at 339.
87. Id. at 339-40.
88. Id. at 340.
89. See id. at 339. Pamela's experts were Dr. Larry Bloom, a clinical psychologist with more than seventeen years experience "evaluating children for sexual abuse," and Dr. Carole Jenny, "a board-certified pediatrician who has devoted more than two decades of her life to working with sexually abused children; at the time of the trial, she had been serving for four years as the Director of the Child Advocacy and Protection Team at the Denver Children's Hospital." Id.
90. See id. at 341.
91. See id. at 343.
92. Id. at 343.
93. Hertzler v. Hertzler, 908 P.2d 946, 950 (Wyo. 1995).
94. See, e.g, GEORGE GRANT & MARK A. HORNE, LEGISLATING IMMORALITY: THE HOMOSEXUAL MOVEMENT COMES OUT OF THE CLOSET 42-43 (1993) ('"Child molestation is regarded in every state as a criminal offense. Yet it's common knowledge that homosexuals are notorious practitioners of sex with minors.'"); Robert K. Lewis, Patriot Knowledge Base, 11 Homosexuality & Lesbianism (last modified Feb. 26, 1998) 〈http://www.micro.com/∼pkb/theoryl1.html〉 (urging homosexuals and lesbians to repent and turn to Jesus after noting that "[a]n extremely high number of homosexuals and lesbians are child molesters and were molested as children also" and that "homosexuals and lesbians want to legalize child molestation").
95. See, e.g, GEORGE GRANT & MARK A. HORNE, LEGISLATING IMMORALITY: THE HOMOSEXUAL MOVEMENT COMES OUT OF THE CLOSET 42-43 (1993) ('"Child molestation is regarded in every state as a criminal offense. Yet it's common knowledge that homosexuals are notorious practitioners of sex with minors.'"); Robert K. Lewis, Patriot Knowledge Base, 11 Homosexuality & Lesbianism (last modified Feb. 26, 1998) 〈http://www.micro.com/∼pkb/theoryl1.html〉 (urging homosexuals and lesbians to repent and turn to Jesus after noting that "[a]n extremely high number of homosexuals and lesbians are child molesters and were molested as children also" and that "homosexuals and lesbians want to legalize child molestation").
96. Becker, supra note 63, at 115 (1996) (quoting trial transcript).
97. Id. at 117-18 (quoting from Decision Letter).
98. Id. (emphasis added).
99. See, e.g., Eagles' Wings Ministry, Sexual Abuse and Homosexuality (visited April 1, 1998) 〈http://www.ewm.org/essay_sexabuse.html〉 ("If violent abuse occurs with an opposite sex person, the victim may become fearful of heterosexual sex. This may set them up for denying their own gender even to the point of desiring to become the opposite sex."); Rob Geotze, New Direction for Life Ministries Canada, Sexual Abuse as a Contributing Factor: Expanding on the Developing View of Homosexuality (last modified Sept. 9, 1997) 〈http://www.execulink.com∼newdirec/fs_abuse.html〉 ("An extremely high number of homosexuals and lesbians are child molesters and were molested as children also." This article urges gays and lesbians to "repent of your sins and ask Jesus to come into your life."); San Diego Christian Conference on Trauma and Sexuality (last modified Aug. 17, 1998) 〈http://www.tsconf.org/index.html〉 (announcing 13th San Diego Christian Conference on Trauma and Sexuality and specifically mentioning a San Diego support group for those "struggling with Homosexuality").
100. See, e.g., Eagles' Wings Ministry, Sexual Abuse and Homosexuality (visited April 1, 1998) 〈http://www.ewm.org/essay_sexabuse.html〉 ("If violent abuse occurs with an opposite sex person, the victim may become fearful of heterosexual sex. This may set them up for denying their own gender even to the point of desiring to become the opposite sex."); Rob Geotze, New Direction for Life Ministries Canada, Sexual Abuse as a Contributing Factor: Expanding on the Developing View of Homosexuality (last modified Sept. 9, 1997) 〈http://www.execulink.com∼newdirec/fs_abuse.html〉 ("An extremely high number of homosexuals and lesbians are child molesters and were molested as children also." This article urges gays and lesbians to "repent of your sins and ask Jesus to come into your life."); San Diego Christian Conference on Trauma and Sexuality (last modified Aug. 17, 1998) 〈http://www.tsconf.org/index.html〉 (announcing 13th San Diego Christian Conference on Trauma and Sexuality and specifically mentioning a San Diego support group for those "struggling with Homosexuality").
101. See, e.g., Eagles' Wings Ministry, Sexual Abuse and Homosexuality (visited April 1, 1998) 〈http://www.ewm.org/essay_sexabuse.html〉 ("If violent abuse occurs with an opposite sex person, the victim may become fearful of heterosexual sex. This may set them up for denying their own gender even to the point of desiring to become the opposite sex."); Rob Geotze, New Direction for Life Ministries Canada, Sexual Abuse as a Contributing Factor: Expanding on the Developing View of Homosexuality (last modified Sept. 9, 1997) 〈http://www.execulink.com∼newdirec/fs_abuse.html〉 ("An extremely high number of homosexuals and lesbians are child molesters and were molested as children also." This article urges gays and lesbians to "repent of your sins and ask Jesus to come into your life."); San Diego Christian Conference on Trauma and Sexuality (last modified Aug. 17, 1998) 〈http://www.tsconf.org/index.html〉 (announcing 13th San Diego Christian Conference on Trauma and Sexuality and specifically mentioning a San Diego support group for those "struggling with Homosexuality").
102. See, e.g., CHRISTINE DINSMORE, FROM SURVIVING TO THRIVING: INCEST, FEMINISM, AND RECOVERY 107 (1991).
103. See note 80 and accompanying text. (criticizing such interpretations).
104. See Mary Becker, Women, Morality, and Sexual Orientation, 8 UCLA WOMEN'S L.J. 165, 207-12 (1998).
105. DINSMORE, supra note 78, at 107.
106. ALLAN JOHNSON, THE GENDER KNOT: UNRAVELING OUR PATRIARCHAL LEGACY 84 (1996)
107. Id. at 84.
108. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 5-8, 48-62 (1987); CATHARINE A. MACKINNON, TOWARDS A FEMINIST THEORY OF THE STATE 3-4, 126-54 (1998).
109. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 5-8, 48-62 (1987); CATHARINE A. MACKINNON, TOWARDS A FEMINIST THEORY OF THE STATE 3-4, 126-54 (1998).
110. Catharine A. MacKinnon, Pleasure Under Patriarchy, in THEORIES OF HUMAN SEXUALITY 65, 65-67 (James Geer & William O'Donohue eds., 1987).
111. JOHNSON, supra note 82, at 86.
112. Id.
113. Id. at 156.
114. See id. at 35.
115. See id. at 70.
116. JOHNSON, supra note 82, at 95.
117. Id. at 95.