Sentencing and treatment options for first-time child abuse convictions

Sexual Assualt

Sentencing for Sexual Contact with a Minor

Charges of sexual misconduct with a minor are very serious. These charges, if proven true, are likely to carry a sentence that will include some jail time. In the case of 34-year-old Doug Kant, this should be the anticipated outcome. Though Kant's criminal record is clean with respect to child sexual abuse or other sexual misconduct, the act of fondling an underage individual will bring a conviction and the certainty of a period of incarceration.

For Kant, there are several mitigating factors that will impact the severity of his sentence. One that cannot be fully determined using the case data provided is the impact levied by his state of residency. Every state has its own set of parameters when shaping sentencing decisions. The state-based code of sentencing will help to determine the length of time that Kant would ultimately be relegated to imprisonment for his crimes. Lacking information directing us to a specific state of residence, we are instead better served by measuring Kant's actions against federally-issued codes on sentencing for sexual abuse.

According to the United States Sentencing Commission (1996), Kant's case must first be mitigating as an instance of improper 'sexual contact,' which is seen as a less severe offense than molestation in the form of direct sexual intercourse. According to the Commission, "Sexual contact' is defined in § 2246 as the 'intentional touching either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.' The penalties for violating the sexual contact statute depend on the same distinctions found in the statutes for sexual acts: ten years imprisonment if the means used would violate § 2241; three years imprisonment if the means used would violate § 2242; two years imprisonment if the conduct would violate § 2243(a); and six months imprisonment if the conduct would violate § 2243(b). Thus, sexual contact is punished less severely than sexual acts, but the same distinctions in culpability, based on the means used and the age or status of the victim, apply to contact as well as to acts." (p. 17)

These statutes outlined above offer different degrees of criminal severity depending on the circumstances surrounding the inappropriate sexual contact. For instance, 2241 refers to the use of force whether by aggression or willful intoxication of the victim. 2242 refers to the use of intimidation or exploitation in engaging in sexual contact. 2243 refers to the application of such behaviors in relation to a minor, specifically defined as between 12 and 16 years of age here. The involvement of any of these statutes in a charge of inappropriate sexual misconduct would ultimately magnify that amount of time that Kant is likely to be sentenced for his crimes. However, again, lacking certain specifics from the case history, it is difficult to determine exactly which elements of the assault were present.

We do know that the victim was a minor and that inappropriate 'sexual contact' is the appropriate charge to be brought against the alleged perpetrator. We can also deduce that because the victim was a minor, some elements of 2242 will also apply for the role played by exploitation in the criminal act. This brings a maximum sentence of up to 20 years for a first offense, according to the Commission. In Kant's case, it would seem wise to pursue this sentencing outcome, with the expectation that the length of incarceration would be adjusted downward based on specific details of the offense as would be explored during a trial.

Indeed, one of the strongest imperatives for seeking the strictest possible sentence against the first-time offender is the fact that laws for sentencing alleged sex offenders are often subjected to the high-level of challenge of using child testimony as the primary source of evidence. This has created a complex legal grey area. According to Nicholson (2010), "in United States v. Booker, the court held a provision of the sentencing guidelines to be unconstitutional because it allowed a judge to consider facts not proved in front of a jury. This ruling could potentially have undermined the entire sentencing guidelines." (Nicholson, p. 1)

This places a burden of proof on the prosecution that must be considered as sentencing is shaped. According to Bailey, who provides the research with an example of sentencing range from the state of Arizona, certain distinctions in language will also have a strong bearing on the length of imprisonment. Accordingly, Bailey observes that "the sentencing range for Molestation of a Child is 10 to 24 years, with a presumptive sentence of 17 years. The sentencing range for Sexual Conduct with a Minor is the similar range of 13 to 27 years, with a presumptive sentence of 20 years." (Bailey, p. 1)