by Marci A. Hamilton. New York: Cambridge University Press, 2008. 168pp. Hardback. $23.00/£16.99. ISBN: 9780521886215.Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.
pp.543-547
Marci Hamilton contends in this thin volume that a “secret ocean of suffering exists” in our society in the form of a crisis of child sexual abuse (p.114). She lays the blame on our legal system that “perversely benefits predators and continually victimizes childhood sex abuse survivors” (p.114). She also claims to know the “clear and simple” solution for “what American must do to protect its children” (p.21): abolish statutes of limitations for sexual abuse. When these “arbitrary” SOL’s are eliminated, she claims, victims will finally “have a true opportunity for justice” and “all of society will benefit” (p.115). As the vagueness of both of these phrases indicates, it is unclear from her book just how much impact she thinks this reform would have on the problem of child sexual abuse. Nor does she provide an estimate of how many sexual abuse cases are affected by the statute of limitations. Indeed, as she reveals in an endnote, at least 11 states already have no statute of limitations for this crime, and an additional 6 states have no statute of limitations for the most serious cases of sexual abuse. It would therefore be interesting to see evidence showing whether the sexual abuse problem is any less serious in those states. In any case, Hamilton’s argument even for this modest reform is not convincing.
The author’s use of evidence in this book is problematic. She announces that “at least 25 percent of girls and 20 percent of boys are sexually abused” in the US (p.4). She does not however reveal that there is tremendous uncertainty about just how widespread the problem is, or that one’s estimate depends on how broadly one defines sexual abuse (nor does she attempt any such definition). In fact, a look at some of the very sources she cites for her figures reveals that they do not support her claim. One source holds that 5-10% of boys are abused worldwide, another (the World Health Organization) estimates 7 – 36% of girls and 3- 29% of boys are abused; these therefore undercut Hamilton’s unqualified assertion that at least 25% of girls and 20% of boys are abused. It may well be of course that the higher numbers are correct, but one cannot simply assume that they are (let alone preface them with “at least,” implying they are much higher). In another passage discussing the problem of false allegations, she references the “data” from California showing that there were “about a handful of false claims” (the qualifier “about” a handful is perplexing) (p.72). She then tells us that this constitutes “one half of one percent.” It is hard to verify her calculation, since it is unclear how “about a handful” out of 1000 claims constitutes one half of one percent, and moreover she does not give a citation to [*544] the source of these data. In fact, in most of the book the author relies mostly on anecdotes or open-ended assertions (“all too often,” “common,” “not unusual,” and so on). Her response to the insurance industry’s assertion that increased liability will cause significant negative financial impact is hardly satisfactory: “If the SOLs are eliminated, every private and public entity will need coverage for its employees who work with children. That sounds like more policies and premiums to me” (p.64). Nor does she mention that any such increased profits for insurance companies would mean equivalently increased costs for small businesses such as day care centers that will need ever more expensive coverage, in some cases enough to put them out of business.
The author’s portrayal of sex offenders is crude and sensationalistic. These people will, Hamilton asserts, “prey on children wherever they can find them” (p.26). She tells us that sex predators are “devious by nature” (p.44), though she provides no evidence that these predators are any more devious than anyone else, nor does she explain what she means by the phrase “by nature.” The author also makes the remarkable claim that sex predators deliberately take advantage of the law regarding the statutes of limitations, which has “created perfect opportunities for predators” (p.19). For each victim’s right to sue expires soon after the abuse, so that the predator “can move on with confidence, knowing the damaged victim was highly unlikely to gain access to the courts, and therefore the predator could molest more children under cover” (id.). She darkly and bizarrely hints that perhaps the law is even designed for this very purpose: “It is eerie how the law dovetailed with the pedophiles’s predilection for children of a certain age. When the pedophile’s interest would wane because the child became too ‘mature,’ the ability of the child to go to court would recede well before the child could alert others to the molester’s identity” (p.19). Hamilton does not however provide any evidence that any molesters are even aware of the laws regarding the statutes of limitations, other than a single anonymous email she claims to have received from an incest survivor who says her father laughed at her when he told her about the statute of limitations on his crime. In fact, Hamilton recognizes that the vast majority of the public do not even know what a statute of limitations is (p.110), so it seems hard to believe that even the naturally devious sex offender has detailed knowledge of these arcane regulations and manipulates them to his own advantage. If true, such an allegation would indeed provide a powerful reason to eliminate the SOL’s. However, it seems reasonable to require somewhat more evidence for such an unlikely assertion than a single unverifiable anecdote.
But if the demonization of the sex offender is predictable (and perhaps to some degree even excusable), more troubling is how Hamilton portrays all of the opponents of her proposed reform as only slightly less monstrous, whether they be school teachers, the church, the insurance industry or others. For Hamilton, those who support her proposed reform are “visionary,” “pioneers” (p.63) and “courageous” (p.83). But the “enemies of reform” apparently constitute an army of darkness. They “fight dirty” (p.21), engage in “skullduggery” (p.59) and [*545] “subterfuge” (p.70), are “sleazy” and “offensive” (p.94) and “vile” (p.91), are brilliant but “devious” (however she does not say if they are devious “by nature” like the predators) and “insincere” (p.88), “shameless” (p.54), engage in “dirty tricks” if they cannot win on the merits (p.80), react with “knee-jerk” opposition (p.65), have an “instinct to hide the truth” (p.99), choose their own interests over those of children (p.104), are constantly engaged in “plotting” behind closed doors (pp.78, 55), and are simply “immoral” (p.96). Naturally, while those on Hamilton’s side of the debate are motivated by a righteous concern to protect the children, those on the other side are motivated by base financial concerns or mere self-interest and do not care about the children. She does not, however, tell us how she has access to the internal motivations of her opponents, or how she knows what goes on behind “closed doors.”
Hamilton calls the statute of limitations a “technicality,” misleadingly implying that it has no legitimate purpose or function (moreover, the phrase “technicality” is a buzzword more suitable for politicians and cable news commentators than law professors and does not belong in a scholarly work absent a precise definition of this loaded term). In fact there are real arguments in favor of the statute of limitations and other procedural constraints. Nowhere in this book will you find any mention of the fact that the crimes of rape and sexual abuse are unique in that someone accused of such a crime can be sentenced to severe penalties, including life in prison, based solely on the uncorroborated testimony of a single witness, the accuser, without any third party witnesses or supporting physical evidence. The concern is obviously significantly heightened when the alleged crime took place 20, 40 or even 70 years before, and witnesses are unavailable or dead, physical evidence is gone, and memories are faded. Indeed, the mere accusation of such a monstrous crime can be sufficient to destroy the reputation and career of a person even if he is wholly innocent. Nonetheless the author refuses even to take seriously the concerns of her opponents. When she does briefly mention them, it is to dismiss their arguments as “poppycock” (p.71), “silly” (p.61), “sad” (p.107), or merely “curious” (p.106). Even more remarkable is her accusation that this systemic crisis is no mere accident or oversight, but reflects a deliberate social policy of favoring adults over the interests of children, given that children do not vote (pp.19-20; cf. 71). But it is rather difficult to believe that politicians identify more with the interests of sex predators than with children, simply because the politicians are adults, or because sex predators vote but children do not (never mind the fact that most politicians have children of their own). The author again gives no evidence to support this charge, and common sense and experience suggest the opposite: politicians have long recognized it is easy to score political points by sponsoring bills to protect children against sex predators.
Hamilton seems unwilling to accept the fact that some people might in good faith be concerned about the danger of false convictions of this horrendous crime. For her, anyone who defends the SOL is simply “morally reprehensible” and prefers predators to children (p.112). Her response to the problem of false [*546] allegations is minimal and perfunctory. She dismisses the concern as “exaggerated” and insists that “procedural safeguards to combat false allegations are already in place” (p.20). She does not tell us how many false allegations she believes there are, or how many false convictions she is willing to tolerate in pursuit of her cause. Nor does she us what these procedural safeguards are, how effective they are, or how she knows they are effective; indeed, her proposal is precisely to get rid of one of the procedural safeguards, the statute of limitations. Hamilton cites only one source to support her assurances, an article in “Risk Management” which simply asserts that “By applying techniques proven effective in the defense of other types of claims of sexual misconduct, false, fabricated or exaggerated claims of abuse may be exposed” (p.135). Again, we are not told what these techniques are, who has proven them effective, what “effective” means (surely it doesn’t mean 100% effective), or what the evidence is, or even what “may be” means (does it mean “will be” or “might be”?). Hamilton later in the book makes another response, equally unsatisfactory. The problem of the unavailability of evidence from a crime decades past is not a concern, she tells us, since the burden of proof of a crime is on the government (p.106). But this is a fallacious argument, since it would equally support eliminating the statute of limitations for all crimes, indeed eliminating virtually all procedural protections whatever; why would we need a right to a lawyer, or a right to an appeal, or a right against double jeopardy, or a habeas corpus right, since the burden of proof is on the government? The argument is naïve, as if the mere fact that requiring proof beyond a reasonable doubt is sufficient to guarantee there will never be a false conviction. Indeed, if her argument were correct, it would prove definitively that there has never been a single person wrongly convicted of a crime in the history of the United States! Hamilton also dismisses the concern about lack of evidence by claiming the existence of a “secret archive” of documents in the Catholic Church identifying the perpetrators of sexual abuse (p.61), suggesting a page from The Da Vinci Code. But even if this “secret archive” existed, it would hardly solve the problem. For Hamilton overlooks the very point she made in the previous paragraph, that the vast majority of cases of sexual abuse occur outside the church.
The concern about false accusations is far from idle, given the overwhelming evidence of numerous false allegations of child sexual abuse and convictions of innocent people in, for example, the Satanic abuse panics of the 1980s and the current strange, almost mystical belief in the idea of “recovered memories” of childhood sexual trauma. Martin Gardner discusses these abuses in his article “The Tragedies of False Memories” (Skeptical Inquirer, Fall 1994):
No one denies that children are molested, but memories of events that never happened are easily fabricated in the minds of suggestible patients by techniques that include hypnotism, regression therapy, drugs, dream interpretation, and guided imagery. These fake memories become so vivid that patients who acquire them make enormously convincing court witnesses. Jurors tend to believe them rather than the expected denials of those accused. The result: an epidemic of wrong [*547] convictions and a mass hysteria that is now far more extensive than the old Salem witch-hunts.Hamilton nowhere addresses or even mentions these scandals in her book. But it is difficult to assess the argument for eliminating SOL’s without a serious discussion of the problem of false accusations. Hamilton may well be correct that we should eliminate statutes of limitation for child sexual abuse, and certainly she is correct that the behavior of some of the parties in this debate, including the church, has been in many cases reprehensible. And there are certainly legitimate arguments to be made in favor of this legal reform, including the fact that due to the shame and embarrassment, victims of such a crime often have great difficulty coming forward. The problem is that her approach is so one-sided that it is not likely to convince the thoughtful reader. For her, the issue reduces to a battle between those who support the children and those who support the sex offenders, as aptly illustrated by the polarizing final sentence of her book: “It is an either/or choice: we can protect the predators or the children” (p.116). The conclusion is reminiscent of the bullying style of the Bush/Cheney administration after 9/11: either you’re with us or you’re with the terrorists. But it is simply not the case that anyone who supports procedural protections such as a statute of limitations, the “enemies of reform” as she puts it, must be on the side of the sex predators and against the children, any more than that those who oppose torture are on the side of the terrorists. No doubt the author is motivated by a genuine and laudable concern to protect children from abuse. But it is also clear how easy it is in the pursuit of a good cause to lose one’s perspective and to begin to see it as a cosmic battle of good versus evil. In fact, those on both sides of the debate desire to protect children from abuse, but there is not likely to be a simple solution to the problem. It is to be hoped we can have a genuine debate even on this incendiary issue of how best to prevent child sexual abuse without dismissing the serious concerns about protecting the rights of individuals or institutions.
© Copyright 2009 by the author, Whitley Kaufman.
