I respectfully dissent. The majority implicitly relies on the assumption that S.J. was born out of a consensual relationship between L.T. and S.J. If the child was not a product of a consensual relationship, S.J.'s alleged parental rights never attached and, hence, the termination of those "rights" is not an issue. The real issue, therefore, is whether L.T. consented to the act of intercourse with S.J. at the time the child was conceived.
L.T. testified, in both the criminal proceeding, in which S.J. was convicted of sexual assault and in the custody proceeding, that S.J. began abusing her sexually when she was eight years old, while S.J. was living with L.T.'s mother.1 The trial court in the criminal proceeding admitted evidence relating to S.J.'s treatment of L.T. from age eight until the move to Alaska, in April 1981 when L.T. was sixteen years old. The court of appeals affirmed the admission of such evidence, relying on this court's decision in Burke v. State, 624 P.2d 1240, 1250 (Alaska 1980) (evidence of prior sexual acts with the same victim may be admissible to prove elements of a sexual assault case). The court of appeals explicitly held that such evidence was more probative than prejudicial, because S.J.'s prior acts were all "allegedly the same as the *Page 798 present charge, non-consensual intercourse. The offenses which the state seeks to admit are not merely isolated incidents from [L.T.'s] childhood, but form a continuum starting when [L.T.] was eight years old." Jones v. State, MO J No. 569 at 14 (Alaska App. April 18, 1984).
Despite L.T.'s testimony that there was no violent physical force, the jury convicted S.J. of sexual assault. AS11.41.410(a)(1).2 L.T. testified that she acquiesced to continued intercourse because of threats and abuse beginning when she was twelve years old. MOJ at 7-8.
At the custody proceeding L.T. again testified to the abuse which began when she was eight years old. Among other incidents, she testified that S.J. forced her to have sex with other adults, took pictures of her nude, and coerced her to engage in oral sex. She first had intercourse with S.J. at age 12, on a trip to Alaska. She also testified that S.J. convinced her to marry a serviceman, R.T., to legitimize the child she was carrying, which had been fathered by S.J. She was thirteen when this child was born. Shortly thereafter, L.T.'s mother reported S.J. to the California authorities for having intercourse with L.T.3 In that action, L.T. originally testified that S.J. had molested her. Charges were subsequently dropped when she recanted that statement after talking to S.J.4 At the custody proceeding L.T. testified she recanted her testimony regarding S.J.'s molestation because S.J. told her to and because she thought if she did not, her daughter, S.T., would be permanently removed from her custody — a fear engendered by S.J. She also testified that she trusted S.J.5
After his release from jail in California, S.J. and L.T. returned to Kentucky (L.T.'s mother had previously left S.J.). S.J. admits that it was on this trip that he first had intercourse with L.T.L.T. testified that after the return to Kentucky and the birth of S.J., Jr., when L.T. was fifteen, she attempted to leave S.J. She fled to her mother's home but her mother refused to let her keep her children there. She moved back with S.J. because she did not want to leave her children and feared they would be taken from her. Shortly thereafter S.J. moved L.T. and the two children to Alaska. They lived in Fairbanks for four months before S.J. left with S.J., Jr. at the request of L.T. She testified that she allowed S.J. to take S.J., Jr. because that was the only way in which he would leave. She subsequently filed the criminal action and custody proceeding.
The course of events described by L.T. falls squarely within the profile of what experts call "child sexual abuse syndrome." Typically, in an incestuous6 abuse case, the abuser (generally the father, stepfather or another male authority figure in the household) engages in sexual conduct with the victim over a long period of time, generally "beginning when the child is pre-adolescent and continuing into the teenage years." D. Wells, Expert Testimony: To Admit or Not to Admit, Florida Bar J. 673, 674 (December, 1983). *Page 799
Some researchers have suggested that because there is generally a lack of overt physical force in incestuous relationships, the child victim must consent. Most commentators, however, recognize that such research incorrectly perceives the dynamics of an incestuous relationship. Rather than consenting to or initiating sexual encounters, most victims are coerced.
The coercion may be subtle and may be based on the nature of the parent-child relationship. The parent is in a position of authority and although a young child may feel uncomfortable about the relationship, she may consent because of a reluctance to disobey or a desire to please the parent.
. . . .
Fear provides another explanation for the child's acquiescence. . . . The child may . . . fear that she will be blamed for the relationship and that she will be punished by the perpetrator and rejected by the passive parent.
Comment, Incest: The Need to Develop a Response to Intra FamilySexual Abuse, 22 Duq.L.Rev. 901, 905-06 (1983-84) (footnotes omitted).
Another commentator's remarks are equally revealing:
The real issue is whether a child can ever "consent" to incest. Incest is an abuse of a family power. The father takes unfair advantage of his position in the family by forcing his daughter to engage in sexual activity with him. It is irrelevant whether this "coercion" is actual "fear of being spanked or punished," or whether she engaged in intercourse to get new clothes. The issue is whether she could choose not to consent, because it is questionable whether any child has the real ability to ignore the power structure in the family. Children are taught to obey their parents. In most incestuous families the father is domineering, autocratic, and powerful in his relationship with his children. Thus, it is highly unlikely that the child can choose not to consent.
P. Coleman, Incest: A Proper Definition Reveals the Need for aDifferent Legal Response, 49 Mo.L.Rev. 251, 263 (1984) (footnotes omitted).
Other characteristics of the incestuous relationship have been described as follows:
The encounter begins with gentle touching and evolves over a period of time to include incestuous intercourse. Seldom is physical violence involved. If the daughter expresses a reluctance to continue the relationship, the father allays her fears and subverts her will through parental dominion and coercion.
. . . .
Usually the daughter is unaware of the moral, social, and legal restrictions placed upon such activity; however, this is not true for the father. To protect himself he creates a pact of secrecy with his daughter. Through overt threats and parental dominion, the father effectively prevents the daughter from confiding in anyone.
Comment, Characterization of the Daughter as an Accomplice inIncest Prosecutions: Does Texas Immunize the Father, 20 Hous.L.Rev. 1129, 1136 (1983) (footnotes omitted). Another commentator suggests that incestuous abuse is quite different from "stranger abuse:"
[I]ncestuous abuse is apt to be chronic, extending over a period of years, because the abuser has ready access to the child. The incestuous abuser holds his victim in a particularly helpless position because the child is ordinarily financially and psychologically dependent upon him and, in addition, the abuser is in a natural position of authority over the child.
Comment, The Crime of Incest Against the Minor Child and theStates' Statutory Responses, 17 J.Fam.L. 93, 99-100 (1978-79) (footnotes omitted).
Courts recognize the difficulty in deciding incestuous abuse cases. Because of the nature of the relationship and its psychological impact on the child, evidence is often conflicting. Many courts now admit expert testimony on "child sexual abuse syndrome." Expert testimony on the child *Page 800 sexual abuse syndrome indicates that abused children often recant their prior testimony or make inconsistent statements. In deciding to admit expert testimony one court indicated that it was doing so because:
Commonwealth v. Baldwin, 348 Pa. Super. 368, 502 A.2d 253, 258 (1985) (footnote omitted). See also People v. Payan, 173 Cal.App.3d 27, 220 Cal.Rptr. 126, 131-33 (1985) (quoting R. Summit, M.D., The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse Neglect 177-93 (1983)); State v. Myers, 359 N.W.2d 604,608-09 (Minn. 1984); State v. Middleton, 294 Or. 427,657 P.2d 1215, 1220 (1983) (useful for jurors to hear expert testimony because it is not uncommon for victims to deny the act ever happened).The emotional trauma to which the child victim of sexual abuse has been subjected causes the victim to react and behave in a different manner from many other crime victims. . . . The child is likely to be reluctant to testify against the defendant who is a parent or other family member and indeed may be under the pressure from other members of the family to recant the allegations. The perpetrator of the abuse may also have used threats or other forms of coercion to enforce the secrecy of the relationship. Moreover, the abuse often begins at an early age and continues for a long period of time, so the child is likely to be relating events which occurred some time in the past and which the child may not have completely understood while they were happening.
When L.T.'s conduct is viewed in this light it is clear that her sexual relationship with S.J. was never "consensual." This court, I assume, would not hesitate to deny the existence of parental rights to a man who raped a woman in a single sexual assault. It is my opinion that the court should also deny the existence of any parental rights where the offspring resulted from abuse by the stepfather of a child in his care for eight years.7
I would affirm the trial court's denial of parental rights to S.J. for the foregoing reasons.
(a) A person commits the crime of sexual assault in the first degree if,
(1) being any age, he engages in sexual penetration with another person without consent of that person.
"Without consent" means that a person "with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone." AS 11.41.470(3)(A) (emphasis added).