Damaged daughters: The history of girls' sexuality and the juvenile justice system

Journal of Criminal Law and Criminology

Volumn 100, Issue 3, 2010, Pages 1099-1130

  Pasko, Lisa ^a  

^a UNIVERSITY OF DENVER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251646897     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (94)

1. See generally DEAN J. CHAMPION, THE JUVENILE JUSTICE SYSTEM: DELINQUENCY, PROCESSING, AND THE LAW (1992)
2. ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (1977).
3. See generally MEDA CHESNEY-LIND & LISA PASKO, THE FEMALE OFFENDER: GIRLS, WOMEN & CRIME (2d ed. 2004)
4. NICHOLE HAHN RAFTER, PARTIAL JUSTICE: WOMEN, PRISONS, AND SOCIAL CONTROL (2d ed. 1990).
5. CHESNEY-LIND & PASKO, supra note 2, at 56.
6. ANNE MEIS KNUPFER, REFORM AND RESISTANCE: GENDER, DELINQUENCY, AND AMERICA'S FIRST JUVENILE COURT 81 (2001).
7. BARBARA M. BRENZEL, DAUGTHERS OF THE STATE: A SOCIAL PORTRAIT OF THE FIRST REFORM SCHOOL FOR GIRLS IN NORTH AMERICA, 1856-1905, at 130 (1983).
8. RUTH M. ALEXANDER, THE "GIRL PROBLEM": FEMALE SEXUAL DELINQUENCY IN NEW YORK, 1900-1930 (1995).
9. MARY E. ODEM, DELINQUENT DAUGHTERS: PROTECTING AND POLICING ADOLESCENT FEMALE SEXUALITY IN THE UNITED STATES, 1885-1920 (1995).
10. KNUPFER, supra note 4, at 91.
11. Id. at 94.
12. WILLIAM I. THOMAS, THE UNADJUSTED GIRL 109-112 (1928).
13. Id. at 109, 118
14. Id. at 150.
15. Id. at 151.
16. THOMAS, supra note 13, at 115.
17. KATHARINE BEMENT DAVIS, A STUDY OF PROSTITUTES COMMITTED FROM NEW YORK CITY TO THE STATE REFORMATORY FOR WOMEN AT BEDFORD HILLS 203-205 (1922) (on file with author) (emphasis added).
18. Id. at 205.
19. Id. at 221.
20. MABEL A.WILEY, A STUDY OF THE PROBLEM OF GIRL DELINQUENCY IN NEW HAVEN 13 (1915).
21. Id. at 23-24.
22. CHESNEY-LIND & PASKO, supra note 2, at 57
23. June Purcell-Guild, Study of One Hundred and Thirty-One Delinquent Girls Held at the Juvenile Detention Home in Chicago, 1917, 10 J. AM. INST. CRIM. L. & CRIMINOLOGY 441, 446 (1919).
24. Id. at 445-46.
25. Id. at 446.
26. Id. at 445.
27. PAUL W. TAPPAN, DELINQUENT GIRLS IN COURT: A STUDY OF THE WAYWARD MINOR COURT OF NEW YORK (1947).
28. Id. at 33.
29. Id. at 33-34.
30. Mary E. Odem & Steven Schlossman, Guardians of Virtue: The Juvenile Court and Female Delinquency in Early 20th-Century Los Angeles, 37 CRIME & DELINQ. 186, 200 (1991).
31. Mary Kaaren Jolly, Young, Female and Outside the Law: A Call for Justice for the Girl "Delinquent," in TEENAGE WOMEN IN THE JUVENILE JUSTICE SYSTEM: CHANGING VALUES 97, 98 (Ruth Crow & Ginny McCarthy eds., 1979).
32. John C. Ball and Nell Logan, Early Sexual Behavior of Lower-Class Delinquent Girls, 51 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 209, 211 (1960).
33. Id. at 213.
34. Id. at 212.
35. Id. at 211.
36. CLYDE B. VEDDER & DORA B. SOMERVILLE, THE DELINQUENT GIRL 147 (1970).
37. See Note, Ungovernability: The Unjustifiable Jurisdiction, 83 YALE L.J. 1383 (1974).
38. GISELA KONOPKA, THE ADOLESCENT GIRL IN CONFLICT 4 (1966).
39. LBQ is defined as lesbian, bisexual, and sexually questioning girls. Discussion of transgendered girls was not found in the historical records or literature nor mentioned in the contemporary research this paper will present. Konopka's research is one of the first to explore such issues in girls' correctional facilities. For earlier works on the inner social life and dynamics of women's and girls' facilities, see, for example, MARY B. HARRIS, I KNEW THEM IN PRISON (1936).
40. KONOPKA supra note 49, at 102.
41. See Chesney-Lind and Pasko, supra note 2, at 63-65.
42. See id. at 63.
43. For a review of research on girl delinquents, gender-specific programming, and funding directed to girl offender issues, see generally Presentations by Topic, GIRLS STUDY GROUP, RESEARCH TRIANGLE INST., http://girlsstudygroup.rti.org/index.cfm?fuseaction= dsp_presentations (last visited Nov. 2, 2010).
44. For a thorough examination of such processes as well as the overall transformation of juvenile justice during the twentieth century,
45. see generally BARRY C. FELD, BAD KIDS: RACE AND THE TRANSFORMATION OF THE JUVENILE COURT (1999).
46. Id. at 109-165. For the most notable Supreme Court decision,
47. see In re Gault, 387 U.S. 1 (1967).
48. FELD, supra note 56, at 166-244.
49. See BENJAMIN KARPMAN, THE SEXUAL OFFENDER AND HIS OFFENSES: ETIOLOGY, PATHOLOGY, PSYCHODYNAMICS AND TREATMENT (1957);
50. GAIL RYAN & SANDY LANE, JUVENILE SEXUAL OFFENDING 187 (1997);
51. Robert Longo & Bradley McFadin, Sexually Inappropriate Behavior: Development of the Sexual Offender, 29 LAW & ORDER 21, 23 (1981);
52. Mervyn Shoor, Mary Helen Speed, & Claudia Bartelt, Syndrome of the Adolescent Child Molester, 122 AM. J. PSYCHIATRY 783 (1966).
53. RYAN and LANE, supra note 59, 187.
54. See Nat'l Adolescent Perpetrator Network, The Revised Report from the National Task Force of Juvenile Sexual Offending of the National Adolescent Perpetrator Network, 44 JUV. & FAM. COURT J. 5, 5 (1993).
55. See, e.g., WILEY, supra note 23.
56. See, e.g., C. Henry Kempe et al., The Battered-Child Syndrome, 181 JAMA 17 (1962).
57. For example, the 1966 Indiana trial and conviction of Gertrude Baniszewski for the child abuse and murder of Sylvia Likens, a sixteen-year-old boarder left in her care. Two in Torture Death of Girl Are Sentenced for Life, N.Y. TIMES, May 25, 1966, at 72.
58. As the social problem of child abuse ignited the general public and the standards for child care increased, legislation began to permit greater surveillance and protection of children. The Social Security Act of 1962 urged the development of child welfare services in every county, while in 1967 the Supreme Court extended Bill of Rights protection to children. Mandatory laws, which were drafted by the U.S. Children's Bureau, appeared in every state, stating that medical professionals had an obligation to report child abuse and neglect to public welfare agencies. By the end of the decade, child protection services began incorporating awareness of sexual abuse into their initiatives. For example, in 1967, the Children's Division of the American Humane Association conducted studies on child victims of sexual abuse and stressed the importance of apprehension, conviction, and punishment of the offender, albeit a family member or stranger to the victimized child. In addition, during this time, child sexual abuse had become a popular subject in both the media and among child protection groups. Groups dealing with child abuse and sexual exploitation-such as Enough is Enough Campaign, National Center for Missing and Exploited Children, National Law Center for Children and Families, American Professional Society on the Abuse of Children, and the National Victim Center- made material available to parents on how to "safeguard your children from becoming a victim of sexual abuse." Child Assault Prevention (CAP) projects, calling for volunteers to end child sexual abuse, appeared in many cities and contributed the public's already growing fear of the neighborhood child molester, which oftentimes took the face of an adolescent male. See Lisa Pasko, From Sin to Syndrome: The Medicalization of Juvenile Sexual Offense (Dec. 1997) (unpublished M.A. thesis, University of Nevada, Reno) (on file with author).
59. See, e.g., RYAN and LANE, supra note 59, at 393.
60. This is not to claim that courts and communities lifted puritanical sexual norms for girls or no longer cared about prostitution. Certainly abstinence was still encouraged, prostitution was criminal, and the sexual double standard continued. I am only referring to juvenile sexual offenses.
61. Pasko, supra note 65, at 19.
62. For a complete examination of this history,
63. see FRANKLIN E. ZIMRING, AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING (2004).
64. Such groups include the anti-Commercial Sexual Exploitation of Children (CSEC), Polaris Project, and Laboratory to Combat Human Trafficking.
65. See, e.g., CAL. PENAL CODE § 288(a) (West 2008) (criminalizing any "lewd or lascivious act" with a child under the age of 14).
66. See generally LAURIE SCHAFFNER, GIRLS IN TROUBLE WITH THE LAW (2006);
67. Lisa Bond-Maupin, James R. Maupin & Amy Leisenring, Girls' Delinquency & the Justice Implications of Intake Workers' Perspectives, 13 WOMEN & CRIM. JUST. 51, 65-66 (2002);
68. Emily Gaarder, Nancy Rodriguez & Marjorie S. Zatz, Criers, Liars, and Manipulators: Probation Officers' Views of Girls, 21 JUST. Q. 547, 556-57 (2004);
69. Stacy L. Mallicoat, Gendered Justice: Attributional Differences Between Males & Females in the Juvenile Courts, 2 FEMINIST CRIMINOLOGY 4, 18-19 (2007).
70. MEDA CHESNEY-LIND & RANDALL G. SHELDEN, GIRLS, DELINQUENCY, AND JUVENILE JUSTICE 171 (1998).
71. Gaarder et. al., supra note 72, at 560.
72. KATAYOON MAJD, JODY MARKSAMER & CAROLYN REYES, HIDDEN INJUSTICE: LESBIAN, GAY, BISEXUAL, AND TRANSGENDER YOUTH IN JUVENILE COURTS 43 (2009), available at http://modelsforchange.net/publications/237/Hidden_Injustice_Lesbian_Gay_Bisexual_and_Transgender_Youth_in_Juvenile_Courts.pdf.
73. Mary Curtin, Lesbian & Bisexual Girls in the Juvenile Justice System, 19 CHILD & ADOLESCENT SOC.WORK J. 285, 290-91 (2002).
74. Reparative therapy is conversion/reorientation therapy, where gay and lesbian sexuality is considered a "lifestyle" choice, and the goal of the therapy is to "calm gay distress" and encourage acceptance to heterosexual lifestyle. It is currently not accepted by most national psychiatric and psychological associations. For additional information on reparative therapy,
75. see JOSEPH NICOLOSI, REPARATIVE THERAPY OF MALE HOMOSEXUALITY: A NEW CLINICAL APPROACH 183-204 (1991).
76. Curtin, supra note 76, at 291-92.
77. In some states, funds for child welfare or social service placements and youth corrections commitments come from the same bureaucratic budget and are under one general "human services" division. In other states, commitment and juvenile parole are separate, but probation, social service residential placements, and detention are funded from the same authority.
78. One example of this that I see frequently in my case files and interview research involves the following scenario: a requirement of the girls' probation is a strict curfew that begins at dusk. In their homes, however, evenings are difficult, as this is when fighting occurs and drunkenness and drug use are at their peaks. Girls run from the home to avoid this environment-usually to a boyfriend whom she is forbidden to see by the court-and such violations of probation requirements are used to revoke and detain. While the details of her home life are documented, a girl is assessed as refusing to take responsibility and making bad choices, especially in terms of her "unhealthy" sexual relationship and behavior.
79. Daphne Laberge, Daphné Morin & Victor Armony, The Gendered Construction of Expert Discourse: An Analysis of Psychiatric Evaluations in Criminal Court, 9 CRITICAL CRIMINOLOGY 22 (2000).
80. See PETER CONRAD & JOSEPH SCHNEIDER, DEVIANCE AND MEDICALIZATION: FROM BADNESS TO SICKNESS (1975);
81. John Monahan, The Psychiatrization of Criminal Behavior: A Reply, 24 HOSP. & CMTY. PSYCHIATRY 105, 105 (1973).
82. CONRAD and SCHNEIDER, supra note 84, at 244-245.
83. For a full discussion of the social control of teenage pregnancy,
84. see CONSTANCE A. NATHANSON, DANGEROUS PASSAGE: THE SOCIAL CONTROL OF SEXUALITY IN WOMEN'S ADOLESCENCE (1991).
85. This Section is a condensed discussion of my research on committed girls, LBQ sexuality, and correctional workers' attitudes. For extended analysis, see Lisa Pasko, Setting the Record Straight: Girls, Sexuality, & Youth Corrections (Apr. 20, 2009) (unpublished manuscript, on file with author).
86. I am not arguing that sexual abuse is not an important aspect of girls' pathways to court involvement. Indeed, it is. My discussion is focused only on how sexual abuse is understood and constructed by correctional staff.
87. FELD, supra note 56.
88. This is partly due to the fact that health management organizations began refusing to pay for residential and inpatient behavioral health care for adolescents, beginning in early 1990s. The "informal" option began going away, leaving parents who wanted their children confined with only a private pay option. To access residential care, juveniles had to route through the court. This phenomena is discussed in Lisa Pasko & Meda Chesney-Lind, Under Lock and Key: Trauma, Marginalization, and Girls' Juvenile Justice Involvement (Mar. 15, 2010) (unpublished manuscript, on file with author).
89. See generally KONOPKA, supra note 47.
90. Brenda V. Smith, The Prison Rape Elimination Act: Implementation and Unresolved Issues, CRIM. L. BRIEF, Spring 2008, at 10, 10-11.
91. See MELISSA SICKMUND, T.J. SLADKEY & WEI KANG, CENSUS OF JUVENILES IN RESIDENTIAL PLACEMENT DATABOOK (2008), available at http://www.ojjdp.ncjrs.gov/ ojstatbb/cjrp/.
92. See BARBARA OWEN IN THE MIX: STRUGGLE AND SURVIVAL IN A WOMEN'S PRISON (1998)134-42;
93. Christopher Hensley, Richard Tewksbury & Mary Koscheski, The Characteristics and Motivations Behind Female Prison Sex, 13 WOMEN & CRIM. JUST. 125, 126-32 (2002).
94. Lisa Pasko, Gendered Nature of Juvenile Justice in Hawaii (Aug. 2006) (unpublished Ph.D. dissertation, University of Hawaii at Manoa, on file with the author).