Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law

Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law

This Article shows why criminal law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes are increasingly being used to regulate parents’ behavior as they engage in mundane childcare practices. In the hands of legal decision-makers, these laws end up being enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers providing seemingly mundane intimate care. The Article shows why child molestation statutes are interpreted in the intimate care cases in ways that enforce gendered parenting norms, showing that legal decision-makers turn to these stereotypes because the concepts of sexual injury at the heart of child molestation law are radically undertheorized. The article considers the role feminist legal theory has played in this undertheorization problem, addresses the stumbling blocks to future feminist theorizing on this issue, and examines the material consequences of the current undertheorized concepts of sexual injury for the practice and experience of fatherhood.



More in this Issue

Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People

In most jurisdictions in the U.S., a birth certificate’s sex marker as decided by the appearance of the infant’s genitals creates a rebuttable presumption of legal sex requiring specified (but widely varying) evidence to overcome. These requirements for recognition are generally illogical, inconsistent, and unattainable for most trans* people. As a result, the majority of […]

Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power

This Comment considers a fundamental question about the relationship between state and national sovereignty in our federal system: may individuals hold state governments accountable in federal court for violations of treaty-based rights? The answer to this question appeared to be negative until the Supreme Court decided Central Virginia Community College v. Katz, holding that state […]

A Fiduciary Theory of Judging

There are some fundamental questions of jurisprudence that have been with us from time immemorial. Cardozo started the modern conversation about the role of the judge in American democracy, but no one has been able to complete it. We have yet to uncover a satisfactory theory of judging that adequately accounts for the diverse, and […]

De Facto Immigration Courts

This article explores one set of criminal law actors who have been quietly accumulating immigration screening power over the last several years-our nation’s inferior criminal courts and the prosecutors who rule them. By centering criminal courts, this article hopes to accomplish three things.  First, it hopes to show that delegation is no monolith.  Unlike other […]