In defense of the judge who gave the man who raped his three year old daughter a sentence of probation

From one of the many, many articles and op/eds written about this case: “A Delaware man convicted of raping his three-year-old daughter only faced probation after a state Superior Court judge ruled he ‘will not fare well’ in prison.”

Those words, “will not fare well” in prison may go down as among the most, if not the most, infamous words ever attributed to a judge. What was the judge thinking, critics ask, and the cynical and even not-so-cynical find ready answers: the defendant was rich, one of the DuPont family heirs; naturally he could afford the best of the best in legal representation; he was initially charged with two counts of second degree child rape, which carry mandatory minimum sentences of ten years each. He was allowed to plead down to a charge that requires no mandatory minimum and enabled the judge to pronounce the sentence of probation with required participation in a sex offender rehabilitation program.

In all criminal justice reforms movements, a common and very valid complaint is “cookie cutter” or “one size fits all” sentencing, usually driven by the aforementioned mandatory minimum sentences, and not enough judicial recognition of individual circumstances or judicial discretion to individualize as warranted. Although ill phrased and highly criticized, this judge’s ruling may do exactly what was best for all concerned in this case.

Sexual assault of a child is an awful thing. The younger the child, the more horrible it seems; the fact that it is one’s own child is something that society cringes from and therefore shuts its eyes to. Incest is one of the most frequently charged categories of child sexual abuse. It is also the sub-category that responds the best to therapy and treatment. Therefore, it is the sub-category that, after confrontation, facing up to what one has done, and treatment, yields the very lowest of all low sexual re-offense rates, with some studies showing zero re-offense over lengthy periods of time for incest offenders.

Rather than vilification of a judge who may have just chosen the wrong words to define an otherwise appropriate decision, I would like to see this situation create instead an awareness of the prevalence of the crime and discussion, if not a public outcry, highlighting the need for a comprehensive program of education and prevention in communities and schools in all states. Our present practice of punishing the crime after it has occurred and doing next to nothing to prevent it before it occurs does not work. Some studies show as high as 96% of all new sexual crime is committed by first time–never before charged–offenders. And by far the greatest majority of that is committed by persons known, and not only known but often also trusted and loved, by the victims; and for children under the age of twelve, studies show that fifty percent or more of those are related to their victims.

This is something that flourishes, and has flourished for millennia, whether we want to admit it or not, in darkness and in secret. It is time to bring it into the light, and the best way to do that is to place the emphasis on treatment and prevention rather than excessive punishment and a lifetime of shaming that harms the victim as much as the offender.