Child Sexual Assault Expert Lies about Conclusions of Study
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
We have written previously about the prolific use of “child sexual abuse experts” in child sexual assault cases. In particular, we have criticized the testimony such experts from the Harris County Children’s Assessment Center (“CAC”). While seldom providing any specific source, these experts testify that the professional “literature” and “studies” reveal child sexual abuse victims rarely ever make “false” allegations about such abuse. The experts confidently inform juries that the rate of false allegations in child sexual abuse cases is about “three percent.” While our Texas Court of Criminal Appeals has held that such generalized testimony does not constitute impermissible “bolstering” of a child sexual abuse victim’s testimony, criminal defense attorneys who have faced this kind of “expert” testimony in emotionally-charged child sexual assault cases understand clearly that such testimony does lend tremendous bolstering-like credibility to the child’s testimony.
As Judge Alex Kozinski of the Ninth Circuit Court of Appeals said in a dissenting child sexual assault opinion nine years ago, “the testimony of a victim—particularly a very young one—is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating [expert] evidence. If the jury nonetheless convicts, we are bound by that determination.” 1/
Judge Kozinski was dissenting in the case of Emanuel Sistrunk who was convicted in an Oregon state court in 1985 for the forcible rape of an 11-year-old girl. He was given a 30-year sentence with fifteen of those years being a statutory minimum. The child victim in the Sistrunk case, as in most child sexual abuse cases, knew her attacker because, according to her, he had sexually abused her once before. The child provided a rather detailed account of the events leading up to and subsequent to the attack.
State prosecutors called an “expert” witness named Dr. Jan Bays who, as a three-judge Ninth Circuit panel concluded, “testified falsely.” 2/ The appeals court added that Dr. Bays testified about “a scientific study [which] proved that ‘it is very, very rare that a child lies about sex abuse’ and that the chance of such a lie is only with teenagers, ‘never with the younger children.’ She testified the study established that ‘if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.’” 3/
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