Most professionals are fairly certain they know what child sexual abuse is, and there is a fair amount of agreement about this. For example, today very few people would question the inclusion of sexual acts that do not involve penetration. Despite this level of consensus, it is important to define what sexual abuse is because there are variations in definitions across professional disciplines. Child sexual abuse can be defined from legal and clinical perspectives. Both are important for appropriate and effective intervention. There is considerable overlap between these two types of definitions.
There are two types of statutes in which definitions of sexual abuse can be found – child protection (civil) and criminal.The purposes of these laws differ. Child protection statutes are concerned with sexual abuse as a condition from which children need to be protected. Thus, these laws include child sexual abuse as one of the forms of maltreatment that must be reported by designated professionals and investigated by child protection agencies. Courts may remove children from their homes in order to protect them from sexual abuse. Generally, child protection statutes apply only to situations in which offenders are the children’s caretakers.
Criminal statutes prohibit certain sexual acts and specify the penalties. Generally, these laws include child sexual abuse as one of several sex crimes. Criminal statutes prohibit sex with a child, regardless of the adult’s relationship to the child, although incest may be dealt with in a separate statute.
Definitions in child protection statutes are quite brief and often refer to State criminal laws for more elaborate definitions. In contrast, criminal statutes are frequently quite lengthy.
The Federal definition of child maltreatment is included in the Child Abuse Prevention and Treatment Act. Sexual abuse and exploitation is a subcategory of child abuse and neglect. The statute does not apply the maximum age of 18 for other types of maltreatment, but rather indicates that the age limit in the State law shall apply. Sexual abuse is further defined to include:
“(A) the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct for the purpose of producing a visual depiction of such conduct; or (B) the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children;…”15
In order for States to qualify for funds allocated by the Federal Government, they must have child protection systems that meet certain criteria, including a definition of child maltreatment specifying sexual abuse.
With the exception of situations involving Native American children, crimes committed on Federal property, interstate transport of minors for sexual purposes, and the shipment or possession of child pornography, State criminal statutes regulate child sexual abuse. Generally, the definitions of sexual abuse found in criminal statutes are very detailed. The penalties vary depending on:the age of the child, crimes against younger children being regarded as worse; the level of force, force making the crime more severe; the relationship between victim and offender, an act against a relative or household member being considered more serious; and the type of sexual act, acts of penetration receiving longer sentences.
Often types of sexual abuse are classified in terms of their degree (of severity), first degree being the most serious and fourth degree the least, and class (of felony), a class A felony being more serious than a class B or C, etc.
Although clinical definitions of sexual abuse are related to statutes, the guiding principle is whether the encounter has a traumatic impact on the child. Not all sexual encounters experienced by children do. Traumatic impact is generally affected by the meaning of the act(s) to the child, which may change as the child progresses through developmental stages. The sexual abuse may not be “traumatic” but still leave the child with cognitive distortions or problematic beliefs; that is, it is “ok” to touch others because it feels good.
Differentiating Abusive From Nonabusive Sexual Acts
There are three factors that are useful in clinically differentiating abusive from nonabusive acts – power differential; knowledge differential; and gratification differential.
These three factors are likely to be interrelated. However, the presence of any one of these factors should raise concerns that the sexual encounter was abusive.
The existence of a power differential implies that one party (the offender) controls the other (the victim) and that the sexual encounter is not mutually conceived and undertaken. Power can derive from the role relationship between offender and victim. For example, if the offender is the victim’s father, the victim will usually feel obligated to do as the offender says. Similarly, persons in authority positions, such as a teacher, minister, or Boy Scout leader, are in roles that connote power. Thus, sexual activities between these individuals and their charges are abusive.
– Power can also derive from the larger size or more advanced capability of the offender, in which case the victim may be manipulated, physically intimidated, or forced to comply with the sexual activity. Power may also arise out of the offender’s superior capability to psychologically manipulate the victim (which in turn may be related to the offender’s role or superior size). The offender may bribe, cajole, or trick the victim into cooperation.
The act is considered abusive when one party (the offender) has a more sophisticated understanding of the significance and implications of the sexual encounter. Knowledge differential implies that the offender is either older, more developmentally advanced, or more intelligent than the victim. Generally, clinicians expect the offender to be at least 5 years older than the victim for the act to be deemed predatory. When the victim is an adolescent, some persons define the encounter as abusive only if the offender is at least 10 years older.16 Thus, a consensual sexual relationship between a 15-year-old and a 22-year-old would not be regarded as abusive, if other case factors supported that conclusion.
– Generally, the younger the child, the less able she/he is to appreciate the meaning and potential consequences of a sexual relationship, especially one with an adult. Usually, the maximum age for the person to be considered a victim (as opposed to a participant) is 16 or 18, but some researchers have used an age cutoff of 13 for boy victims.17 Apparently, the researchers felt that boys at age 13, perhaps unlike girls, were able to resist encounters with significantly older people and were, by then, involved in consensual sexual acts with significantly older people. However, clinicians report situations in which boys victimized after age 13 experience significant trauma from these sexual contacts.
– Situations in which retarded or emotionally disturbed persons participate in or are persuaded into sexual activity may well be exploitive, even though the victim is the same age or even older than the perpetrator.
Finally, in most but not all sexual victimization, the offender is attempting to sexually gratify him/herself. The goal of the encounter is not mutual sexual gratification, although perpetrators may attempt to arouse their victims because such a situation is arousing to them. Alternatively, they may delude themselves into believing that their goal is to sexually satisfy their victims. Nevertheless, the primary purpose of the sexual activity is to obtain gratification for the perpetrator.
– In this regard, some activities that involve children in which there is not a 5-year age differential may nevertheless be abusive. For example, an 11-year-old girl is instructed to fellate her 13-year-old brother. (This activity might also be abusive because there was a power differential between the two children based on his superior size.)