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Camille Gear Rich, Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Calif. L. Rev. (forthcoming 2013), available at SSRN.

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling?

Perhaps we assume that child molestation statutes adequately distinguish innocent behaviors from alarming ones. Not so, Rich claims. Some child molestation statutes impose specific intent requirements compelling prosecutors to prove sexual motivation or illicit intent. Others carve out exceptions to general intent requirements for behaviors construed to be normal caretaker responsibilities. Either way, Rich contends, intent determinations turn on social norms (or “common sense”) about appropriate parenting behavior, and these norms are highly gendered. A mother blowing kisses all over a child’s belly is relatively common and unproblematic. The same behavior by a father, grandfather, stepfather, or boyfriend raises suspicion. Further, prosecutors tend to judge the appropriateness of some behaviors—for example, bathing with the child, parental nudity, diapering practices—by whether the child’s mother has authorized them. Mothers are the gatekeepers, and fathers parent at their own risk. They may do as mothers say, but not necessarily as they do.

Rich objects to the increasingly broad definitions of child molestation because, whether they are applied to just to men or to men and women equally, they intrude on family autonomy and privacy. Her emphasis, however, is on the specific damage caused by treating men differently. Gendered child molestation standards generate gendered parenting behaviors, as men understandably avoid actions that may raise suspicion about them as parents, even as women through these same actions deepen their own intimacy with their children.

Rich holds feminists at least partially responsible for the gendered standards she identifies. She blames primarily dominance feminists, who heightened awareness of sex abuse, urged successfully that legislators enlarge its definition, constructed molestation as a sex-specific wrong that men commit against innocent women and children, and insisted that prosecutors and judges believe women and children when they claim abuse. This strategy helped to entrench societal understandings of men as dangerous sexual predators who are not to be trusted to get too close to children, and constrained male behavior and self-definition accordingly.

Rich argues that spooking fathers is not in women’s interests, and that feminists should have known better. Liberal feminists, in particular, understood that loving and engaged fathers who enthusiastically assumed their share of caretaking responsibility for children were critical to equality for women. Rich concludes that these feminists failed feminism, and families, when they did not resist the overly broad and gendered construction of sex abuse that dominant feminists promoted. Perhaps liberal feminists were asleep at the switch; maybe they were reluctant to criticize a brand of feminism that seemed to put women’s interests front and center. Either way, she argues, they neglected to act on their own egalitarian principles.

Liberal feminist complacency on this and related family law issues has created the need, and space, for a “new camp of post-dominance” feminists,1 with which Rich allies herself. By Rich’s description, these feminists have more backbone than liberal feminists, and they take more seriously the feminist values of autonomy and liberty. They believe that the law is overly paternalistic when it intervenes too much in family relationships, and that this paternalism “prevents women from exercising personal agency to decide what kinds of family relationships they would like to form.”  More broadly, post-dominance feminists oppose the “sexual suspicion of men at the heart of the dominance feminist critique”—suspicion that “threatens men who have adopted an ethic of care.”

Many family law issues have divided feminists, but this one may be more challenging than most. Rich anticipates the potential downsides to the attention she draws to the lack of gender neutrality in the prosecution of child molestation—that the conduct of mothers will be more closely scrutinized; that too much latitude will be given to abusive fathers; and that only the most privileged men will benefit from creating more gender-neutral standards. Rich responds to these difficulties by acknowledging the necessity for women’s autonomy and children’s safety, and by arguing that greater parental autonomy will serve gay parents as well as middle-class fathers.

Yet it is not clear that the problem Rich describes can be easily resolved. The inconsistency she identifies suggests anxieties about parenting, sex, and equality that many feminists, despite their own best intentions, cannot seem to dispel. We want men to share responsibility for children and are critical of them when they do not do so. At the same time, we do not seem to trust men with children in the same way we do mothers. Rich argues that feminists cannot have it both ways: we cannot both treat men suspiciously, as second-class parents, and expect their full and equal commitment as loving caretakers. She’s right, of course—whether or not we have the will to act on her powerful insights.

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  1. E.g., Melissa Murray and Jeannie Suk.  See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006). []
Cite as: Katharine Bartlett, Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws, JOTWELL (November 2, 2012) (reviewing Camille Gear Rich, Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Calif. L. Rev. (forthcoming 2013), available at SSRN),