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Family Law - Criminal Law

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Criminal Law

Criminal law involving family issues includes spousal rape, assault, and child abuse and molestation. Most states prohibit prosecution of a husband for the rape of his wife while still living together, although this prohibition is increasingly being challenged. This prohibition stems from the common law concept that once a woman married, she granted consent to intercourse with her husband that cannot be rescinded, and rape was traditionally defined as the unlawful "carnal knowledge" without consent. In Smith v. State (1981) and Commonwealth v. Chretien (1981) the courts held that a wife could rescind marital consent once she lived apart from her husband. By the mid-1990s, 11 states allowed for prosecution of husbands who rape their wife while living apart.

Assault includes domestic violence, such as when spouse physically attacks the other. Spouses may obtain temporary restraining orders barring the abuser from the home and prohibiting further violent acts. The assault or violation of an order can result in criminal prosecution. Local authorities were historically reluctant to become involved in domestic disputes, but this has changed during the 1990s with the rising incidence of abuse and increased public awareness.

When a parent without custody removes a child from the custodial parent, he or she may be found guilty of felony kidnapping as addressed in the Parental Kidnapping Prevention Act of 1980. A court upheld the precedence of the law essentially protecting parental rights over other standards protecting children's rights in In re Baby Girl Clausen (1993).

Child abuse escalated throughout the 1990s. Estimates are that 1.5 million children suffered from moderate to severe child abuse each year during this period. Abuse included physical, sexual, and emotional mistreatment, and extreme cases of neglect. Almost 80 percent of the abuse was committed by the parents. Although it is a devastating crime, abuse appeared to be immune from legal prevention and protection. Several states passed laws requiring persons to report suspected child abuse. In some cases, the abused child is removed from the home and placed in care of the state. Financial costs for institutional care correspondingly increased throughout the decade. With poverty identified as a key factor, reformers sought to assure the economic well-being of families. Child abuse reporting laws and monitoring by juvenile courts and social workers proved to be the primary preventative measures available. Abuse is normally an important factor in custody hearings. Incest, which is marriage or sexual relations between close relatives including stepparents, also constitutes a crime, and it is regarded as child abuse when it occurs between a parent and child.

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