Josh Duggar and the Myth of Juvenile Justice

In recent weeks, the Duggars, the famously fertile couple from TLC's 19 Kids and Counting, have been in the news for a molestation scandal, involving their son, Josh. A report from 12 years ago shows that Josh, then age 14, touched his sisters and a babysitter sexually and that his parents waited 16 months to report him to a local police officer and family friend. That report did not lead to an arrest. Rather, Josh Duggar underwent a controversial Christian therapy to deal with his behavior.

Recriminations of the Duggar family have come in from all sides. See here and here for some examples. The reaction to the revelations was naturally one of frustration and anger (and not a little Schadenfreude, given the family's judgmental stance on all things not within the scope of Christian heterosexual marriage). There are many who have criticized the family for not calling the police at the discovery of Josh Duggar's abuse of these girls. A report by NBC News quoted one victim advocate, who said, "We must involve the authorities to protect our children." Another noted that reporting the behavior would serve as a "gateway to services" for families.

But is this true? In the midst of this anger many people are asking why Josh didn't go through the juvenile justice system. Josh Duggar almost certainly benefited from his family's connection to a local police officer, who made the decision not to turn him in. One can imagine a very different outcome for a poor child of color in the same situation. But in asking why he didn't end up in the juvenile justice system, we must also ask: What would have happened to Josh, his victims and his family had he gone through the system, like so many other young people in these kinds of cases?

The idea that the criminal system would have healed Josh Duggar, given his victims closure and helped this family recover from a tragedy is comforting. Unfortunately, it is a myth. The system isn't designed to do that; it is designed to punish.

Josh Duggar was 14-years-old when he abused his sisters and a babysitter. If the Duggars are to be believed, he touched the victims' genitals over and under their clothing, at times while they were sleeping. This is a criminal act. But when a 14-year-old commits a crime, the juvenile justice system views it differently than when an adult does the same thing. In theory, this is why we have special courts and special detention facilities for kids. In practice, however, we don't treat the 1.7 million kids who go through juvenile courts annually all that differently from adults (to say nothing of the 250,000 children who end up in adult criminal court each year).

Our juvenile justice system is often just as punitive, if not more so, than our adult system. Children do not have the same due process rights as adults, and yet, they can face similar consequences to an adult. As Richard Ross makes clear in his book, Juvenile In Justice, kids in juvenile detention centers are often abused by guards and other inmates, isolated for long periods of time and frequently sexually assaulted. Although there is educational programming and therapy offered in some juvenile facilities, they are often underfunded or unavailable. The system tends not to put money into the rehabilitation of delinquents, particularly for children involved in sex crimes. In many states children as young as 12 can be put on sex offender registry lists that make it difficult for them to go to school or find future employment or housing as they grow up. This can be for offenses that involve children who take nude photos of themselves and send them to others or children close in age who have consensual sex. A report by Human Rights Watch gives the full scope of sex offender registration for kids. One Michigan 10-year-old ended up on the registry for 25 years for flashing her 5-year-old stepbrother when she was 8. In Arkansas, where the Duggars are from, a child can be placed on the registry for "any offense with a sexually motivated underlying component."

On the one hand, I understand people's reaction. We're deeply uncomfortable with the idea that children experiment sexually and that sometimes that experimentation takes on dangerous or criminal forms, as it did in the Duggar case. However, by all accounts, Josh Duggar has not abused anyone since his childhood. He's now married with children of his own. He has close relationships with his siblings and parents. The sisters he abused came to his defense in an interview with Fox News on Friday and seemed genuinely concerned for him. Do we imagine that had Josh Duggar gone through the criminal system the outcome would have been better for him, his victims or society at large?

Last week on Good Morning America, Dan Abrams explained to Americans having their morning coffee that if not for the statute of limitations, Jim Bob and Michelle Duggar, could have faced 6 years in prison for not reporting the abuse of their daughters to authorities directly after they learned about it, even though they did report the abuse eventually and sought treatment for their son (and yes, the treatment was deeply problematic, but seemingly sought in good faith by the Duggars). Regardless of how we feel about the chosen treatment, would jailing the parents of the victims have been the desired outcome?

We are rightly frustrated by what happened with Josh Duggar. But we should direct that collective frustration and anger towards building new and better ways to rehabilitate children who commit crimes and to help their victims. Many of us, myself included, don't like the Duggars' vile views on everything from gay rights to women's equality to a host of other issues. But we still have to ask what sort of criminal system we've set up that would respond to one child abusing another child by tearing apart a family, leaving three of its members incarcerated and the victims without their parents. Is this the ending we would have wanted?