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How the California Sex Abuse Loophole Became Law… and How it Works

On This Page:
I. Historical Background: How a Sex Offender Lobby Made Law
II. Technical Background: How to Read the Current Law

I. How a Sex Offender Lobby Made Law
In 1980 and 1981, the California legislature held a series of hearings on Child Molestation. The transcript from those hearings runs over 700 pages, and it makes crystal clear the thinking of those who lobbied successfully to create special preferential treatment for child molesters who victimize children in their own home.

Much of the testimony was organized and presented by a self-described “self-help group for child abusers,” Parents United. Headed by incest treatment leader Hank Giaretto, Parents United presented a barrage of testimony from people affiliated with the group, including at least one perpetrator, a cooperative spouse, a victim, an attorney, and Giaretto himself.

In the absence of any significant political influence for abused children, the sex offender lobby won. Their words speak for themselves.

Excerpts from 1980-1981 Testimony:
“However, we need to be careful not to take the situational offender, the father offender who has had, usually, a very outstanding career both in industry and in his place in his community, and mix him up with the type of offender, the predator, the type of fellow who stalks his victims or who sets up situations through which he can molest these children. The father offender is a special case. It is really.”
—Hank Giaretto,
Executive Director, Parents United
12/16/80, page 163

“We have had probably at least 3,000 families [incest perpetrators and their spouses and victims] just in the Santa Clara County Chapter…”

“We cannot work with pedophiles, just as anybody else cannot.”
—Elizabeth Jacoby
Attorney for Parents United
4/10/81, page 51 and 4/24/81, page 30

“In most cases, the youngster wants to return to her family. In the 10 percent of the cases that we are unable to do that, we don’t do too well with our kids. Those youngsters will sabotage one placement after another, and some of them are very caring foster homes.”
—Hank Giaretto,
Executive Director, Parents United
12/16/80, page 164

“In our zeal to provide protection, we cannot lose sight of cases involving child molesters we seldom hear or read about… This child molester is the father, a stepfather, who betrays his parental role in favor of sexually abusing his child. Presently, if charged, this father, a stepfather, is lumped in the same pattern as a pedophile… I submit that we must make a distinction between the pedophile and the incestuous father, a stepfather… As incongruent as it sounds, these offenders [incest perpetrators] are as strongly offended as we are towards people who sexually abuse out of the family.”
—Geri Hatcher
Project Supervisor, DPSS of Los Angeles
Working with Parents United
11/12/80, page 71-74

“Now, as local psychiatrists began to find out about Daughters and Sons United, which is our childrenís group, and Parents United and our community-based program, they started drawing a distinction between the incest offender and the out-of-home offender…”
—Hank Giaretto,
Executive Director, Parents United
12/16/80, page 165

“I am very pleased to see finally in proposed legislation a distinction made between your in-family molester and your pedophile.”
—Elizabeth Jacoby
Attorney for Parents United
4/10/81, page 51

Excerpt from Testimony of Parents United Perpetrator:
One of Parents United's witnesses was a child molester named Jim. According to the group, Jim was not a “pedophile,” but rather an “in-family” or “situational” molestor, because he preyed upon his own child. (Note: Jim admits in his testimony to victimizing another child also.) Jim was apparently one of the many “volunteers” that came to Parents United for shelter, understanding and legal protection once his crime had already become known to others. In this case, his five year old daughter disclosed the repeated molestation to a Sunday school teacher, who told Jim's pastor. He left the state of Oregon and took his family to California, entering Giaretto's program:

"My name is Jim. I molested my daughter for a two month period just about a year ago, between April to about June of 1980. The knowledge of the molest came out through our pastor in our church we were attending. My wife had no knowledge of it…

…We were residing in Eugene, Oregon… We subsequently moved down within two weeks, down to Santa Clara. We contacted… Parents United, within three days of moving down, on a Friday, and met with three staff people. And the following Monday, we subsequently reported to the San Jose Police Department the molest.

And I want to emphasize that my family has supported me. They moved down with me, my wife and daughter… I knew that I had to get whatever help and whatever avenues of correcting my aberrant behavior to have a healthy relationship with my daughter. Because, my daughter was only five at the time, and I feel that there is still a real strong chance of a very strong father and daughter relationship in the future.

Later, Rains asked Jim if he had ever molested another child:

ANONYMOUS: Yes. There was another victim involved.

CHAIRMAN RAINS: Was she a young girl?

ANONYMOUS: She was age eight at the time of the molest.

CHARIMAN RAINS: Was it somebody that you knew well, that trusted you?

ANONYMOUS: Yes…

Despite the fact that it was now clear that “Jim” was no poster child for the harmless “situational” offender, Parents United counsel Elizabeth Jacoby spoke up again, revealing a horrifying picture of what the group's family “therapy” was actually doing to the child, by focusing on the perpetrator and family reunification instead of the child's safety and psychological well-being:

MS. JACOBY: Senator Rains, I think this case is a good example of what may happen if we have mandatory prison sentences in these cases… There is a reluctance to prosecute by the people up in Oregon, because when you prosecute, it means you send somebody away… Instead, that family has been, as I said, in limbo, and the little child has been just—has become very withdrawn, in fear that her father will go to prison. And she will not talk about that, and that’s become a very big obstacle, living with that fear, day by day, which is what — how she has taken it. I mean, something that we have tried all the time, not to say, “Hey, your daddy is going to end up in prison.” But, she has grabbed onto this because she loves him so much, and because she feels that she has really done something horrible by talking…

CHAIRMAN RAINS: Do you fear, as you sit here, that at this point in time, you might molest her were you living with them?

ANONYMOUS: There is that potential, but a much less potential than there was back in August when I started the program. And, there is a — my goal is that — there is a court, juvenile court hearing scheduled for August 14th—that—

CHAIRMAN RAINS: That’s a California hearing?

ANONYMOUS: Right, with the juvenile probation — has been set up as a time goal to reunite our family. And so, I am working really hard on gaining my own self-trust.

CHAIRMAN RAINS: I have a question here. I am not sure I understand it, but I believe the thrust of it is, do you think that it might help your child were you to talk to her about jail, incarceration, and—

ANONYMOUS: I have already done that. I have already confronted her with that, to say that I would not like being separated from the family, but am willing to do my time and then come back to reunite with the family.

CHAIRMAN RAINS: What was her reaction to that?

ANONYMOUS: She is not really vocal on the issue…

CHAIRMAN RAINS: Do you see her at all right now?

ANONYMOUS: yes. I am allowed very liberal visitation rights… My wife is an approved supervisor.

Chairman Rains had no apparent reaction to this admission by “Jim” that he and the Parents United program were manipulating this young child. But Senator Doolittle saw through Jim’s testimony:

SENATOR DOOLITTLE: Again, just an observation, but if we can counsel someone to get over the trauma of having been molested, it would seem to me we ought to be able to counsel them to understand that it is not the child who placed the father in prison, it is the father by his act that placed himself in prison.
4/24/81, page 51-59

Excerpt from Testimony of Parents United Victim:
Parents United also produced a victim to testify, 19-year old “Shannon.” She was presented as a member of Daughters and Sons United, Giaretto’s children’s group. Shannon testified that she and her older sister were both sexually molested by their stepfather, beginning shortly after he married her mother. Once again, the psychological manipulation of a victim by Parents United should have been clear to any listener:

“I was molested by my stepfather for four years, from the time I was nine to 13. I trusted this man. He had been in my life since I was a year old… So anything he said was gospel, I guess.

…I was afraid of breaking up the family. I was afraid of — I didnít know what would happen to him. And then, what I thought — I thought maybe he would go to prison and I didn’t want that. I needed — I began to realize that he needed help, prison wouldn’t help…

CHAIRMAN RAINS: Is your sister older than you or younger?

ANONYMOUS: She is older, four years, five years.

CHAIRMAN RAINS: Had she been molested by your stepfather as well?

ANONYMOUS: Yes, but she had gotten married and moved out after she graduated…

CHAIRMAN RAINS: Did she know that you were being victimized by your stepfather?

ANONYMOUS: Yes.

CHAIRMAN RAINS: Had you told her?

ANONYMOUS: My sister?

CHAIRMAN RAINS: Yes.

ANONYMOUS: She knew. She was there part of the time. My stepfather would make us do things together to him, everything. It was very extensive…

CHAIRMAN RAINS: Did he serve any jail time at all upon conviction?

ANONYMOUS: No.

CHAIRMAN RAINS: Was he convicted.

ANONYMOUS: He was convicted, but his — if I am not mistaken, it was five years probation, and he had to have some kind of counseling. And he did see Hank Giaretto, and he went to Parents United. He attended Parents United. And he had, I think, a year suspended sentence.

CHAIRMAN RAINS: Shannon, did the subject of jail or prison ever come up?

ANONYMOUS: Yes. I got to admit that when I first found out that he might go to jail, I wanted that, I wanted him to go. And then, you know, after talking to my mom and Hank, I realized that it wouldn’t help him. He — it — they just go through the same thing, even if they do make it out, they might — he will probably molest again. And the group, he needed help.

CHAIRMAN RAINS: Let me ask you a very hypothetical and maybe it’s impossible for you to answer, but, at that point in time, when you were 13 years of age, and your father was on trial because of things you said about him, and your sister had said about him, how do you think it would have affected you in later life, at that time and in later life, had he gone to prison?

ANONYMOUS: I know I would feel guilty, because I know he wouldn’t be getting the help that he needed in prison, and that this group has to offer. He was molested as a child, when he was young, and then when he was a teenager, I think, 15, by his stepmother. And he never got the help then. And I knew that he had been molested. And that I figure, you know, he would finally get the help he needed if he didn’t go to prison. I would have felt so guilty.

CHAIRMAN RAINS: Do you have any questions, Senator Doolittle?

SENATOR DOOLITTLE: Well, just one. Who is this Hank?

ANONYMOUS: Hank Giaretto.

CHAIRMAN RAINS: Hank Giaretto.

SENATOR DOOLITTLE: And who is that?

MS. JACOBY: He is the founder and director of Parents United.

SENATOR DOOLITTLE: Well, it’s just that I find missing in this as an element of punishment. I mean, yes, we are trying to rehabilitate the person, but yes, we must punish him, also. And that’s my concern. This man was a step-parent. When did he marry your mother? How long did that —

ANONYMOUS: I think I was eight or nine, eight.

SENATOR DOOLITTLE: So, he married her and then started molesting you, it sounds like, isnít that right?

ANONYMOUS: Yes.

SENATOR DOOLITTLE: About nine years old. I just think this, you know, again, I’m going to vote for the bill if this is all we have got to offer. But, again, I guess I just, I don’t go along with this philosophy. I think punishment is important.

ANONYMOUS: They do get punished.

SENATOR DOOLITTLE: Well, this man didn’t even serve any jail time, it sounds like.

ANONYMOUS: That was a long time ago, though. They do now. And I have a surrogate father in the program now. And we are very close. And a lot of the — I talk to the fathers, and they have a group now that I am going to go into as soon as I can get into it, a recontact group to tell how they felt. And a lot of the fathers that I have talked to, I think that they have been punished.

SENATOR DOOLITTLE: Well, hopefully, they are punished just by the recognition of the wrongfulness of their own act. But I think society demands more than that as punishment. That’s just — you know, I am really pleased to hear your testimony. And you may differ with me on this, but I think there are victims out there someplace that feel that prison might be an appropriate punishment…

4/24/81, page 45-49

II. How to Read the Current Law
S.B. 33 closes loopholes in four different laws. But the real smoking gun—the outrageous loophole at the heart of this bill—is Penal Code 1203.066. Key sections of the current law are excerpted below. We have bolded some passages for emphasis. Our comments are in red.

1203.066. (a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:

The following (1-9) are aggravating factors. If a perpetrator is found to have committed any of these, he is not eligible for probation… with three exceptions for family members (see below)

(1) A person who is convicted of violating Section 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear [...]
(2) […] bodily injury on the child victim […]
(3) A person who is […] a stranger to the child victim or befriended the child victim for the purpose of committing an act […]
(4) A person who used a weapon […]
(5) A person who […] has been previously convicted […]
(6) […] kidnapping the child victim […]
(7) […] more than one victim.
(8) […] substantial sexual conduct with a victim who is under 14 years of age.
(9) […] used obscene matter […]

(b) "Substantial sexual conduct" means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.

(c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:

(1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim’s household

[…]

paragraph (c)—above—creates a deliberate exception for family members who molest children in their own household. This exception is carved out for even the most aggravated acts: “more than one victim” and “substantial sexual conduct.” Note that “substantial sexual conduct” is defined in paragraph (b). It includes penetration and other serious sex acts.

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