The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out
By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:
- Why would a child lie about sexual abuse?
- How can a child know so much about sex if she has not been abused?
- Would a child lie about sexual abuse?
- Why would a child make the story up?
These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.
Why would a child lie about such a thing?
In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:
“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)
