02-Rich (Do Not Delete) 6/5/2013 11:39 PM Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law Camille Gear Rich* This Article shows why criminal law should be regarded as parenting law, because child molestation statutes formally categorized as criminal statutes are increasingly being mobilized by legal decision makers to regulate parents’ behavior when they provide mundane, intimate care to their children. The Article further shows how legal decision makers responsible for interpreting these broad child molestation laws tend to interpret the laws in ways that re-instantiate traditional gendered parenting norms. These problems are particularly apparent in what I call parental intimate care cases, cases in which fathers take over nurturing and intimate caregiving tasks that traditionally have been mothers’ primary responsibility. The discussion charts these problems by showing how the inquiry authorized by today’s broad, far-reaching child molestation statutes invites and even requires judges, juries, prosecutors, and a host of other legal decision makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers who provide seemingly mundane intimate care. The Article posits that legal decision makers interpret child molestation statutes in the Copyright © 2013 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Associate Professor of Law, USC Gould School of Law. Special thanks to Kerry Abrams, Scott Altman, Richard Banks, Katherine Bartlett, Rebecca Brown, Emily Buss, Mary Anne Case, Alex Capron, Anne Coughlin, Clare Huntington, Adrienne Davis, Ariela Gross, Tom Lyons, Melissa Murray, Stephen Rich, Nomi Stolzenberg, and Angela Onwachi-Willig for their suggestions and encouragement during the writing process. Special thanks to the faculty of the University of Iowa School of Law, the University of Southern California, the University of Minnesota, the University of Chicago Law School, and Fordham Law School for their workshop comments, as well as the organizers and participants in the January 2011 Feminist Legal Theory Collaborative Research Network Conference and the February 2011 Association of Law Culture and the Humanities Conference. Additional thanks to the many talented research assistants that supported this project: Corrina Freedman, Joseph Clark, Diandra Netto, Taylor Chase Wagnier, and Eunice Lim. Finally, many thanks to Lien Payne for heroic editorial work and assistance. This Article is dedicated to one of my primary sources of insight about mothering, my daughter Lilah Hayley Rich. 609 02-Rich (Do Not Delete) 6/5/2013 11:39 PM 610 CALIFORNIA LAW REVIEW [Vol. 101:609 parental intimate care cases in ways that conform to gender 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. Introduction ..................................................................................................... 611 I. Policing Parents, Policing Gender ....................................................... 619 A. Regulating the Mundane: The Plain Meaning of Child Molestation Law .......................................................................... 620 B. Intention Matters: How the Intent Inquiry Encourages the Use of Conservative Gender Norms ................................................... 630 1. General Intent and Specific Intent Statutes .............................. 630 2. The Proper Role of Social Norms ............................................ 632 3. The Rise of Sexual Privacy Logic............................................ 634 C. Reversing the Groups: Case Studies on the Gender Norm Enforcement Power of Child Molestation Statutes ...................... 638 1. Toileting ................................................................................... 639 a. In re D.C. ........................................................................... 640 b. Hicks v. Larson .................................................................. 641 c. Montgomery County Department of Health and Human Services v. P.F. ................................................................ 642 2. Bathing ..................................................................................... 644 a. In re Julia B........................................................................ 644 b. In re R.A. ............................................................................ 647 c. State v. Emmett Revisited ................................................... 649 3. Kisses ....................................................................................... 650 a. People v. Marokity ............................................................. 651 b. J.S. v. Commonwealth, Department of Public Welfare ...... 655 II. Feminist and Criminal Responses to Child Molestation ..................... 656 A. Expanding the Concept of Injury: Feminist Interventions in Child Molestation Law and Scholarship ...................................... 657 B. Fathers Wanted/Fathers Need Not Apply: The Conflict Between Liberal Feminism and Dominance Feminism over the Role of Fathers .......................................................................................... 662 C. Post-Dominance Feminists and Fear of the State ........................... 667 III. Reconstructing Fatherhood in the Shadow of Child Molestation Law: Theoretical and Practical Challenges ......................................... 671 A. Child Molestation Law and the Disciplining of Fatherhood .......... 671 B. Disciplinary Authority in Practice: Anxieties on the Ground ......... 676 02-Rich (Do Not Delete) 6/5/2013 11:39 PM 2013] INNOCENCE INTERRUPTED 611 C. Reimagining Fatherhood ................................................................. 679 IV. Concerns, Critiques, and Solutions...................................................... 684 A. Recognizing Risk: Masculinity as a Risk Factor for Sexual Abuse ........................................................................................... 685 1. Gender Profiling and the Empirical Case Against Fathers ...... 685 2. A More Nuanced Form of Empiricism: Men, Masculinity, and Fatherhood ...................................................................... 686 B. The Dangers of Gender-Neutral Parenting Models ........................ 688 1. Burdening Mothers .................................................................. 688 2. Burdening and Unburdening Culture ....................................... 689 C. The Role of Social Context in Understanding the Intimate Care Cases ............................................................................................ 690 1. Family Dissolution and Reformation ....................................... 690 2. Family Dissolution and Family Sexual Boundaries ................. 692 D. Intersectional Disadvantage and Stereotyping of Fathers ............... 693 E. Causation Challenges ...................................................................... 696 1. Potential Versus Actual Abuse ................................................ 696 2. Extralegal Reasons for Fathers’ Failure to Provide Childcare ................................................................................ 697 Conclusion ...................................................................................................... 697 INTRODUCTION When James Lloyd Emmett prepared his son for the child’s evening bath, he scarcely imagined that his actions would cause him to be charged with child molestation.1 Emmett, to the unsuspecting eye, seemed to be your average father: neither a particularly skilled parent nor a particularly incompetent one. But for unknown reasons‒‒perhaps the child’s skin seemed parched that evening—he decided as part of the post-bath ritual to rub down his naked five- year-old son with baby oil.2 The events recounted here may make some readers uneasy or give others pause. What exactly did Emmett do wrong? Much of this unease stems from the concern that Emmett violated certain unspoken social norms; however, the substance of these norms and the logic that informs them are unclear. One thing is certain: no one sanctioned Emmett for applying the baby oil—indeed, no alarm was even raised until sometime later when the little boy alleged that his father had touched the child with his genitals on a different occasion.3 Shortly thereafter, a firestorm of controversy ensued that made the post-bath ritual suspect, led Emmett to be charged with child molestation, and took the case to the highest court in the state of Utah.4 1. State v. Emmett, 839 P.2d 783 (Utah 1992). 2. Id. at 784. 3. Id. at 783. 4. Id. 02-Rich (Do Not Delete) 6/5/2013 11:39 PM 612 CALIFORNIA LAW REVIEW [Vol. 101:609 What should we make of Emmett’s story? Was Emmett an innocent father engaged in a routine caregiving task or a pedophile engaged in an act of child molestation? Some are prepared to argue that the post-bath rub down was categorically inappropriate; it constituted sexual abuse regardless of the particular kind of touching that occurred.5