In a ruling that has veteran Juvenile Court lawyers shaking their heads, a judge found that a father’s fondling of his 10-year-old daughter and 8-year-old son was not sexual abuse because the judge believed such behavior is culturally acceptable in the man’s native Sicily.
Associate Judge Fe Fernandez said the alleged actions–the father “tweaked” his daughter’s breasts and buttocks as well as the genitals of his son–were clearly inappropriate and, along with reports of physical violence, contributed to an injurious environment. She ordered the children removed from the home.
Still, the judge decided that the fondling was not for “physical gratification,” and did not rise to the level of sexual abuse because of the father’s Sicilian background. The judge ultimately granted unsupervised overnight visits by the father.
Following the ruling, lawyers for the Cook County public guardian and Cook County state’s attorney filed an emergency appeal and the Illinois Appellate Court blocked the judge’s decision pending legal arguments. No date has been set for those arguments.
Lawyers in the courtroom later said they were stunned at the judge’s remarks. One, who asked to remain anonymous, said the judge’s remarks were outrageous not only because of the comment about the Sicilian culture, but also because of the inconsistency in finding an injurious environment that included the fondling, and declining to make a finding of sexual abuse.
“I was floored, appalled,” said one lawyer, who asked to remain anonymous. “I’ve never quite heard any judge sum up sexual abuse in that way. It’s really bizarre. I’m not aware of any culture where that is acceptable. I’m still a little in shock.”
Representatives of Italian ethnic groups also were angered when informed of the judge’s comments.
“Asinine,” declared Joseph Cecela, general counsel for the Joint Civic Committee of Italian Americans, an umbrella group for about 75 Italian clubs representing about 100,000 people. “Any suggestion whatsoever by anybody that perhaps culturally Italian people condone or advocate sexually abusing their children is an asinine proposition.”
In making her ruling earlier this year, Fernandez said, “This might be something that the father might be brought up thinking that this is cute–you pat somebody on the butt or you grab them in the breast area.
“I think it was a cultural thing where some of us that are Latin are different in our approach to touching than what Americans find acceptable,” Fernandez also said.
“Some of us have not grown up . . . with the same ways of expressing ourselves or same inhibitions . . . even that was probably in Sicily not something that was inappropriate.”
But the judge added the father should know that in the U.S., such fondling is “inappropriate, I think that it’s a problem and I think it’s something that should not continue. However, I don’t (believe) it rises to the level of sexual abuse either.’
No criminal charges were filed in the case, which was pursued in the Juvenile Court’s neglect and abuse division, where judges decide whether children should be removed from parents’ custody either temporarily or permanently.
Fernandez is a first-year judge who was appointed to her position and began hearing the case when she was assigned to Juvenile Court earlier this year. In her ruling in February, Fernandez found that the children were neglected based on an injurious environment and ordered them removed from the home.
Her decision was based in part on a finding that the children were fondled and also because there was a history of domestic violence in the home. The mother had gotten orders of protection against her husband on at least two occasions and one of the children told social workers that his father had struck his mother during a quarrel.
The sex abuse allegations arose during an interview with a social worker before the case came to trial. At that time, the girl said her father would sometimes walk naked into the shower while she was there and “pinch her nipples and touch her buttocks, while making comments such as `You have such a cute butt,’ ” according to court documents. In addition, the boy said his father grabbed his genitals while he was clothed, according to the documents.
Fernandez declined to be interviewed, saying, “I cannot comment on a pending case.”
The definition of sexual abuse in the Illinois criminal code as it relates to children between ages 9 and 17, which is also used as the standard in Juvenile Court, is “any intentional or knowing touching or fondling . . . either directly or through clothing, of the sex organs, anus or breast of the victim.”
“Although she expressly found that (the father) had touched his children as alleged, the trial court (Fernandez) refused to find sexual abuse for two reasons,” the public guardian and prosecutors argued in their appeal. “First, she speculated that Sicilians and other people from `Latin’ cultures might find it appropriate for fathers to fondle their children.
“Second, she believed that (the father) had an innocent reason for fondling his children, other than for the purpose of sexual gratification or arousal,” the motion says. “Neither conclusion is supported by the record or by the law.”
Cecela, of the Joint Civic Committee of Italian Americans, said, “The beauty and joy and love that most Italian families express toward their children is just overwhelming and so non-abusive and so non-violent . . . that the proposition itself that in some way Italians are culturally accepting of abusing children is just preposterous.”
The children have been in the custody of a grandmother and the parents are still seeking their return.
The case came to Juvenile Court in April 1997 after the 8-year-old boy called 911, and police in the western suburb where the family lives responded to his claim of being beaten by his father.
Ultimately, in interviews with social workers and police, the boy and his sister, as well as their mother, said the father was physically abusive to the mother and the children and leveled the sexual abuse claims.
The father denied all the allegations. The mother later recanted her claims.
“There were two major allegations by the daughter,” said John Gonnella, attorney for the father. “That he would walk in the bathroom nude when she was in there showering and that he would pinch her buttocks and chest area and say she had a `cute butt.’ “
“Having grown up in an Italian family myself and having been to Italy on many occasions, Europeans and Italians have different ideas about nudity,” he said. “Their most popular game shows and commercials have nudity, on the beach are topless women, men’s bathing suits have much less fabric. They are much less uptight about nudity.
“In terms of expression,” Gonnella continued, “Pinching your daughter’s buttocks or saying she has a cute butt is a term of affection.”
Asked if tweaking a daughter’s breast was a sign of affection, Gonnella replied, “It wasn’t done for physical gratification.” He conceded, though, “It is inappropriate.
“Having been in an Italian family myself, (welfare officials) should investigate every Italian family,” he said. “Then I was abused, my friends were abused.”
“Poppycock,” said attorney Leonard Amari, a co-founder of the Sicilian American Cultural Association.
“That kind of familiarity is not acceptable in the Sicilian household,” Amari declared. “I’m 100 percent Sicilian. I travel to Sicily twice a year, and I stay with Sicilians when I’m there. That is absolutely not the culture.”
“That’s insane,” declared Anthony Scariano, former Illinois Appellate Court judge and current president of the Sicilian American Cultural Association. “Where does she (Fernandez) get that idea? That certainly is not a part of Sicilian culture. It’s taboo even to talk about it, let alone to touch.”
