Josh Duggar Is Not The Only One Who Escaped Prosecution

According to columnist Tamara Tabo, Josh Duggar himself might have benefited if his parents had handled the first reports of sexual abuse as the law required.

If the phrase “sibling sexual abuse” appears in dinner party conversation this weekend, it’s probably Josh Duggar’s fault.

Josh Duggar is the oldest child in the family featured in the TLC reality series “19 Kids and Counting.” This week, In Touch reported on allegations that Josh, now 27, had repeatedly molested several young girls when he was 14 years old. According to the police report, four of the five victims appear to have been Josh’s younger sisters. A source told In Touch that Duggar was never prosecuted due to expiration of the statute of limitations.

Josh Duggar might have committed a crime — but if so, was he the only Duggar who committed a crime?

“Playing Doctor” Or Pedophile Or What?

Juveniles who commit sex offenses against other minors present a tangle of evils, with children as victims, children as perpetrators, and one of the categories of harm most likely to turn one’s stomach.

Far from an isolated incident, Josh Duggar’s alleged offenses involved multiple little girls on multiple occasions. Far from teenage exploration between peers who are nevertheless underage, his acts reportedly took place when he was 14 and his victims were as young as five. Also, there’s that incest piece.

Does anyone capable of molesting his little sisters change?

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According to the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention, long-term clinical studies report that about 85 – 90% of juvenile sex offenders have no arrests or reports for future sex crimes. When they do have future arrests, those arrests are far more likely to be for nonsexual crimes than for other sex offenses. Data suggest too that even juvenile offenders who abuse younger children are not necessarily motivated by paraphilia. The abuse warrants professional attention and close scrutiny, but the abuse is not always evidence of life-long sexual interest in children. Pennsylvania recently found its juvenile sex offender registry unconstitutional and other states are currently debating their own policies.

The Other Problem With Sibling Sexual Abuse

Sibling sexual abuse, as in the Duggar case, is particularly common among sex offenses committed by juveniles, as well as those committed against juveniles. The U.S. Department of Health and Human Services found in a 2002 study that, while children face a 0.12% chance of being sexually abused by an adult family member, children face at least a 2.3% chance of being sexually abused by a sibling. That is a lot of siblings molesting siblings.

Yet experts such as John Caffaro who study sibling sexual abuse suspect that the offense is grossly under-reported. Adults simply don’t seem to take it as seriously as they do abuse by adults, or even by children or teens outside the family. If a child tells a parent that the shifty-eyed guy circling the playground in a windowless van touched her in her bathing-suit area, that parent is likely to have a torch lit and a pitchfork in hand, ready to lead an angry mob to exact rough justice, all before the child finishes her story. If a child tells a parent that her brother or sister did the same thing, too often the parent will dismiss the report, make excuses, or even blame the victimized child.

Others have analyzed how the Duggars’ fundamentalist Christian “quiverfull” dogma contributed to the abuse and the response to the abuse. Perhaps it did. But parents mishandling abuse among siblings is not reserved only for misogynists and members of extremist sects.

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Jim Bob and Michelle’s Choice

Parents can be fiercely, even irrationally, protective of their kids. Instinct can compel mothers and fathers to deny that their kid set a fire even when he’s caught holding a half-used book of matches. Yet sibling sexual abuse diverts and distorts parental instincts in particularly troubling ways.

The phrase “Sophie’s Choice” has entered common usage to describe a forced decision between two bad options. In the book and film “Sophie’s Choice,” the protagonist is forced by a doctor at Auschwitz to decide which of her two children will be gassed immediately and which will be permitted to live. Sophie chooses to save her son by sending her daughter Eva to die.

For parents facing sexual abuse among their children, the phrase is only barely a metaphor. Their parental instinct to protect one child runs directly at odds with their parental instinct to protect the other. To defend the abusing child, they must minimize or deny the seriousness of the behavior. By minimizing the seriousness of the behavior, they minimize the victimized child’s injury. For the sake of one child, they sacrifice another.

Permitting Abuse

Jim Bob and Michelle’s response to Josh’s actions was not only a moral failure. It also may have been a crime in itself.

Along with civil penalties for child maltreatment, “permitting abuse of a minor” counts as a criminal offense under Arkansas law. The offense is punishable as a felony when a parent “recklessly fails to take action to prevent” the sexual abuse of a minor. The statute provides a defense if the parent “takes immediate steps to end the abuse of the minor, including prompt notification of a medical or law enforcement authority, upon first knowing or having good reason to know that abuse has occurred.”

According to the police report, Jim Bob and Michelle Duggar learned that their daughters were being sexually abused in March 2002. Jim Bob also told police that in July 2002 Josh admitted to again fondling one of the girls while she slept. Nine months later, in March 2003, the report indicates that yet another incident occurred. There is no record of the Duggars notifying a doctor or, at that time, notifying law enforcement.

Instead, the family sent Josh to stay with a family friend from March 2003 to July 2003. When Josh returned home, his father took him to see Arkansas State Trooper Jim Hutchens, a personal acquaintance of the Duggars, who gave Josh no more than a “very stern talk.”

We now know that Hutchens himself would be later convicted of child pornography offenses. One wonders how stern his counsel not to touch the genitals of little girls could possibly have been.

Even if the trip to see Hutchens counts as notification of law enforcement, July 2003 is a long time after the Duggars first learned of the abuse, certainly not the “prompt” response required by law.

The statute of limitations suffices to keep prosecutors from now pursuing Jim Bob and Michelle Duggar. Their response at the time, however, was hardly adequate. They had a moral duty to protect their daughters. Josh’s repeated offenses make clear that they failed. They had a legal duty to take appropriate action as soon as they learned of the crimes against their daughters. Their attempts at homegrown family discipline show that they fell short there as well.

If the Duggars had reported Josh’s misconduct to authorities as soon as they learned of it, the juvenile justice system would have handled the case. Unlike the adult system, the juvenile system expressly focuses on the rehabilitation of offenders — not retributive punishment, not mere warehousing of criminals. Juvenile sex offenses often signal pervasive distress in the offending youth’s life prior to the misconduct. The juvenile justice system, regardless of its many shortcomings, attempts to treat offenders with targeted therapies.

Ironically, Josh Duggar himself might have benefited if his parents had handled the first reports of sexual abuse as the law required. Certainly his sisters would have.

Earlier: Judge Expunges Duggar Child Molestation Record


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.