Legal Blog: Josh Duggar – Examining Why Some Perpetrators Get Special Treatment In Our Criminal Justice System

Posted on May 26 2015 - 11:37am by Stacy Slotnick, Esq.

Josh Duggar

While the halo effect may have drastically subsided, many wonder why “19 Kids and Counting” star Josh Duggar was not prosecuted to the full extent of the law. What becomes of a celebrity known for piety and puritanical leanings that is embroiled in a child molestation scandal? A vocal segment of society thinks celebrities get preferential treatment in the nation’s legal system, and the case of Josh Duggar may prove them right.

Many observers feel that certain genders and races receive preferential treatment in our criminal justice system, which means that they are less likely than others to be convicted for the same type of offense and expected to serve milder sentences. One group is especially singled out by the public for special treatment under the law: Celebrities. 

Stars ooze wealth.  The judicial system arguably treats them differently from regular folks because the former has a lot of money to fight allegations so charges may not be filed against celebs with the same consistency as unknown culprits.

The celebrity criminal defendant is well dressed for court appearances.  He/she does not look like the typical child molester, if there is such a thing. He/she appears clean-shaven, friendly, and approachable since this individual has been coached as to what to say and how to act. Instead of a public defender, the criminal defendant has a team of the most expensive lawyers in the country that might have the “It” factor, too.

Prosecutors may have far fewer resources than an attorney retained to represent Josh Duggar, whose father was a state representative from 1999-2002. Law enforcement officials have learned that when investigations involve celebrities – even D-List ones like Josh Duggar – they must usher in more proof, extra witnesses, and equivalent star power in a court of law.

A juror deciding the fate of a celebrity tends to view prosecutors more skeptically, as best evidenced by the 2005 acquittal of Michael Jackson on child molestation charges. Everyone microscopically examines everything the prosecutor does in a case involving well-known persons because they think prosecutors charge more frequently and overcharge when the defendant is a VIP.

Jurors might believe that when law enforcement goes after celebrities, they are punishing them for being famous. The public’s scrutiny of investigators, police officers, and the DA’s office surges when the players in crime dramas are familiar figures, which might deter charges against luminaries from being filed in the first place.

A contrasting view is that household names invite more thorough investigations, higher-up review, more aggressive prosecutions, and news leaks to sink a celebrity’s case. But this isn’t what happened with Josh Duggar. Beginning in 2002, Josh, an ostensibly well-mannered male from a religion-loving clan possibly received preferential treatment by the justice system.

The Duggars became a household name over a decade ago when “14 Children and Pregnant Again!” first aired. The specials morphed into a series about the Duggar family before becoming a bona fide TLC hit in 2008. 

The family that preached conservative values and lived within a so-called cult of purity is now at the center of a sexual abuse maelstrom. The alleged victims of Josh Duggar’s sexual molestation were his nearest and dearest, i.e., siblings.

Josh Duggar

Patriarch Jim Bob knew as early as 2002 that Josh Duggar – who was 14 at the time – was accused of sexually abusing an underage girl. The teen was ultimately suspected of inappropriately touching five underage girls, some of whom were his sisters, between 2002 and 2003. 

Jim Bob, who served in the Arkansas House of Representatives, did not immediately go to law enforcement authorities after his son admitted to some of the molestation claims made against him. In fact, the police report says he waited sixteen months after Josh confessed to him.

In March 2003, Jim Bob first told church elders – makes sense since they have the legal ability to investigate, prosecute, and sentence perpetrators (note sarcasm) – about Josh. Then, Josh was sent to a Christian program called the Basic Life Principles Training Center in Little Rock (not a counseling center) from March 2003 to July 17 of the same year, according to the police report. July 2003 is the first time that the family tells a law enforcement official about the incidents in their home.

A corporal in the Arkansas State Police gave Josh “a very stern talk” about his actions. The corporal told the group who approached him that because they “had already put [redacted] through a treatment program, there was nothing else to do.” The police report indicates Michelle and Jim Bob told police that they had disciplined their son themselves. I am unfamiliar with any law in the United States that places prosecutorial decisions and criminal punishment in the hands of the perp’s parents.   

Sometime around 2005, the state trooper (Joseph T. Hutchens) who originally took the report in which the charge being pursued was sexual assault in the fourth degree failed to follow up and was later convicted on child pornography charges.  (Hutchens was jailed on child porn charges, paroled, and arrested again on porn charges leading to a 56-year prison sentence.) 

In the wake of the trooper’s arrest, someone in the police department reportedly contacted the Child Abuse Hotline. Then, the Crimes Against Children Division and Springdale Police Department became involved. However, by that time, the three-year statute of limitations that then existed had passed.  Today, a prosecution may be commenced for a violation of this crime at anytime under Arkansas law.

Legal technicalities sink cases.  Yet even without the statute of limitations hiccup, if the state trooper weren’t so dazzled by the Duggars would Josh Duggar be sitting behind bars now instead of celebrating a gender reveal party for his fourth child, a daughter?

Josh Duggar, who resigned as head of the lobbying arm of the anti-LGBT Family Research Council, publicly admitted to the wrongdoing on social media last week. In the court of public opinion, Josh is a child molester. Could that be a fate worse than one handed down by the criminal justice system?

Before the statute of limitations had run to file criminal charges, the Duggars were cashing in on their newfound fame. There is no question they were celebrities in the mid-2000s even if they had not yet reached “Jersey Shore” reality TV status.  In fact, in 2006, they were scheduled to be the subject of an episode on “The Oprah Winfrey Show” but it never aired since staffers had been told that Josh had molested five minor girls. (Harpo received an email in December 2006 in which the sender claimed that Josh had molested minor victims and the Duggars were “not what they seem to be.”)

A fax from Oprah Winfrey-owned Harpo tipped local authorities off to a possible crime having been committed. Harpo alerted the Arkansas State Police Child Abuse Hotline and the Springdale Police Department received a copy of the email in December 2006, according to the police report.

Josh’s record was expunged, which is the legal elimination of criminal history records. Several days ago, a judge ordered that the entire report be expunged (made confidential) to protect – allegedly – the identity of a minor child named as a victim of a sex crime in the report. Was expungement the result of a careful, independent review of this case to protect the victims or the consequence of the eldest Duggar child’s celebrity status?

According to Arkansas law, records do not completely disappear physically, but they are emblematically unavailable from the view of the public. For legal purposes, after a criminal record is expunged, it is as though the crime never happened.  The police report and investigation materials that contained the allegations that Josh Duggar molested young girls was said to be destroyed on May 21 by Judge Stacey Zimmerman. A victim was worried an unredacted copy of the police report might be leaked, so she requested the record be expunged.

Springdale Police spokesman Scott Lewis noted, “As far as the Springdale Police Department is concerned this report doesn’t exist.” A person is legally permitted to state that the conduct never occurred and that the record does not exist, which could be problematic should the victim(s) want to file a civil suit.

Remember, victims of child sexual abuse may pursue justice through both the criminal and civil justice systems. In Arkansas, lawsuits alleging childhood sexual abuse must be brought within 3 years after the victim has reached 18 years of age, or within 3 years of the discovery of childhood sexual abuse. Now, in Arkansas, the sexual abuser as well as an institution or organization, such as a church or a youth organization, may also be liable for sexual abuse experienced by the child.  In order to prevail, the victim must prove that the defendant organization knew, or should have known, that the perpetrator was a danger to the plaintiff. The plaintiff/victim may prevail by showing that the organization negligently allowed the perpetrator access to the victim.

In some instances, the only requirements to receive preferential judicial treatment as a celebrity are that the person is recognized and loved by society. Punishing or pursuing charges against a person the public worships could be the driving force behind celebrity favoritism within the legal system. But sexual assault is a significant problem of American society. An act of sexual abuse can ravage a victim’s life. The criminal justice system should provide invaluable support regardless of whether the perpetrator is a celebrity or unknown individual.  Grab your gavel, join the conversation, and tell us what you think about preferential treatment in the criminal justice system.

 

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About the Author

Stacy Slotnick, a.k.a. The Foxy Jurist, holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst Commonwealth Honors College. Stacy is the recipient of the Honors Deans Award; Simon and Satenig Ermonian Memorial Scholarship; College of Social and Behavioral Sciences Opportunity Scholarship; and College of Humanities and Fine Arts Scholarship. She is also a William F. Field Alumni Scholar, an honor bestowed upon the most academically distinguished students. In law school, Stacy won two CALI Excellence For The Future Awards® and received an Achievement Scholarship. She is a member of the New York Bar. As an entertainment lawyer, Stacy counsels clients on contracts, branding, and public relations strategy. She negotiates with agents, producers, production companies, and lawyers to secure rights to projects on behalf of high-profile clients. Her clever, spirited, no holds barred legal analysis can be found in articles for The Huffington Post. * Facebook   * LinkedIn   * Twitter