Abstract

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.

Disciplines

Criminal Law | Criminal Procedure | Sexuality and the Law

Date of this Version

February 2012

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