Criminal Defense Attorneys Must Be Prepared To Aggressively Challenge Child Assessment Center, Child Abuse Experts
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
The “Mission” statement of the Houston Children Assessment Center “is to provide a professional, compassionate, and coordinated approach to the treatment of sexually abused children and their families and to serve as an advocate for all children in our community.” In its 2008 Annual Report, Yolanda Green, President of the Board of Directors of CAC, added that CAC “is an agency where children whose lives have been torn apart are given hope and the opportunity to begin the road to recovery.”
The CAC, which was founded in 1991, has morphed into more than a child advocacy and protection center. It has become a quasi-official arm of law enforcement and supplies professional witnesses for the Harris County District Attorney’s Office in child sexual assault cases. Virtually every criminal defense attorney in Harris County who has tried a child sexual abuse case faced a CAC “expert” brought into court to testify for the prosecution about these cases. The agency has a history of misrepresenting the facts in these cases to Harris County juries, sometimes at the behest of the District Attorney’s Office.
For example, in April 2004 former Harris County District Attorney Chuck Rosenthal was forced to admit that “faulty physical exams” performed by a former nurse at CAC had put in jeopardy some 170 child sexual abuse cases and had possibly resulted in the wrongful conviction of some people.
Children suspected of being the victims of sexual abuse are given physical examinations, counseling and other services at CAC. The District Attorney’s office then uses the center’s “experts”, such as the former nurse who conducted the faulty physical exams in 2004, to testify about the impact on the abused children. Despite the 2004 fiasco, the District Attorney’s office continues to utilize CAC “experts” in child sexual abuse cases, knowing full well the center’s propensity to distort data in this sensitive field.
For example, the CAC posted the following statistical data on its website:
1 in 4 girls is sexually abused before age of 18
1 in 6 boys is sexually abused before the age of 18
1 in 5 children are solicited sexually while on the internet
Children who are abused are 50% more likely to be arrested as juveniles
Children who are abused are 40% more likely to be arrested for a violent crime as an adult
Nearly 70% of all reported sexual assaults (including assaults on adults) occur to children ages 17 and under
An estimated 39 million survivors of childhood sexual abuse exist in America today
95% of children are abused by a family member or someone they know and trust
Approximately 40% are abused by older or larger children whom they know
The median age for reported abuse is 9 years old
More than 20% of children are sexually abused before the age of 8
Over 30% of victims never disclose the experience to anyone
More than 75% of teenage prostitutes have been sexually abused
Nearly 50% of women in prison state that they were abused as children
The startling thing about the foregoing data is that none of it is attributed to a specific source, much less a credible source. The statistics are simply posted as “fact” without any authentication on the center’s website. That’s disturbing because the statistics themselves contradict each other.
For example, CAC reports that 95% of all children are abused by a family member or someone they know and trust. There is no respected study that has ever been conducted that says 95% of all American children are “abused” by a family member or someone they know. This would mean that 9 out of 10 of every jurors selected in Harris County were abused by a family member or a friend.
In all likelihood, and for the sake of fairness, we will assume that CAC meant to say that 95% of all “sexually abused” children are abused by a family member or someone they know. But even this statistic begs scrutiny because the CAC also reports that 20% of children are sexually solicited on the Internet and 40% are abused by an another larger and older child whom they know.
The CAC would also have us believe that there are 39 million survivors of sexual abuse in this nation. There are approximately 300 million people in America. CAC, therefore, suggests that 1 in every 7 Americans were abused by a family member or a friend. That means that every time 35,000 people turned out at Minute Maid Park to watch an Astros game, 5000 of them were sexually abused by a family member or a friend.
The CAC statistics are an indictment of the “American family.” They say that America is a nation of pedophiles and child molesters. This assertion should not set well with potential Harris County jurors. CAC is an organization run by “social workers.” Social workers became prominent in America in the early 1900s with a philosophy that the “government” could cure social ills such as poverty, crime, and lack of education more effectively than the private sector. They adhere to a social philosophy that does not believe in the “individual spirit” that made America great. Instead they believe the government, through government-run agencies like “Child Protective Services,” can better shape the “’American family unit” than traditional family values. In a nutshell, some social workers seem determined to destroy the sanctity of the American family by characterizing it as a “hotbed” for pedophilia and child abuse.
In May 2008 the Fourteenth District Court of Appeals heard the appeal of Frederick Lane who was convicted by a Harris County jury for aggravated sexual assault of a child and was sentenced to a term of 60 years in prison. The victim was his young daughter. The District Attorney’s Office called Dr. Lawrence Thompson, Jr., the Director of Therapy and Psychological Services with the CAC. Dr. Thompson testified as an “expert in the field of child abuse and post-traumatic stress disorder.” The “doctor” is a “regular” in the Harris County criminal court system willing to testify to his “expertise” at the beck and call of the District Attorney’s office.
Dr. Thompson has a routine “expert” spiel in these cases. Just like the CAC website, he seldom offers specific sources for what he calls “the literature” and “the studies” that say there is a delay in disclosure by the victims in over half of all child sexual abuse. The doctor adds that this disclosure delay can range from weeks to years because the child victim is experiencing feelings of shame and guilt; manipulation or threats from the child abuser or other members of the child’s family; and the child’s fear that he/she will not be believed if the abuse is reported.
This is heady stuff from an “expert.” Jurors sitting in judgment of a perceived “child molester” are impressed with Dr. Thompson’s range of professional knowledge about the subject of child sexual abuse. Invariably, the doctor will reinforce this acceptable testimony with his favorite, although legally unacceptable, testimony about “false allegations” in child sexual abuse cases. This occurred in the Lane trial as follows:
Prosecutor: How about false allegations? Is that a big part of the studies regarding sexual abuse?
Thompson: No, it’s not a big, big part. It is something that happens. There are false allegations of child sexual abuse, but what I can tell you from my research and my clinical experience is that those allegations are extremely rare.
At that point Lane’s defense attorney objected to Thompson’s testimony on the ground that he was attesting to the credibility of a group of people. The trial judge sustained the objection. That did not deter either the prosecutor or Thompson.
Prosecutor: Is this based on your training and experience in general, that is, the study of or the looking at the false accusations, is that something that you have done through your education and through your training and through your experience.
Thompson: I have definitely observed all areas of child sexual abuse, including false allegations.
Prosecutor: And so how do you go about separating in a general way scientifically between a true allegation and a false allegation?
Thompson: Well, in the false allegation abuse that I in my clinical experience has [sic] observed – have observed, the theme that was present in that was an adult coercing a child to say something happened that didn’t happen. Coaching is what it is referred to in the literature. So we have an adult coaching a child to say they were abused when they were not abused … And, again, it is a rare occurrence, but it is something is that is documented in the literature and coaching of children has unfortunately happened, but it is a rare occurrence.
On cross-examination, defense counsel revisited the false allegation issue.
Defense Counsel: Okay. You indicated – you’ve indicated that the majority of false allegations involved an adult coaching a child?
Thompson: Yes. Yes, in my clinical experience and in the literature …
Defense Counsel: Have there ever been studies done to determine, give us any information, any data, about adults making false accusations and claiming that they were victims.
Thompson: No, there are no studies that I am aware of specific to that, but the general studies that I am aware of regarding all victims of child sexual abuse, adult or child, consistently show that child or adult do not make – tend to make false allegations of child sexual abuse.
The defense attorney once again objected to Dr. Thompson’s testifying on the ground that he was attributing credibility to a group of victims, including the victim in the Lane case. The real issue, however, is that Dr. Thompson’s testimony was flat wrong. We have written extensively in past blogs (e.g., Acquittal, 01-14-09) about false sexual assault allegations. In fact, we posted the following information after an acquittal at a child sexual assault trial during which Dr. Thompson testified for the prosecution.
In 1996 a U.S. Justice Department study found that as many as 25 percent of all sexual assault allegations made in this country are false. The study, entitled “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial,” examined 10,000 sexual assault cases which had been analyzed with DNA evidence over the previous seven years. The study excluded 2,000 primary suspects who had been wrongly charged and found 2,000 more cases against suspects to be “inconclusive.”
The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University in New York found that at least 196 of the 225 DNA exonerations in this country since 1989 involved wrongfully convicted individuals in sexual assault cases—some of which involved convictions on “child sexual assault” cases. One was a recent Harris County case involving Ricardo Rachell who spent six years in the Texas prison system based on the false testimony of an eight-year old child in 2002. DNA evidence exonerated Rachell last December.
We can only surmise that Dr. Thompson’s doctor’s personal experience and readings of the “literature” did not include DNA wrongful convictions data in sexual assault cases or the findings of Purdue sociologist Eugene J. Kanin who, after a 9-year study, found that 40 percent of the sexual assault allegations examined in his study were false. See: Archives of Sexual Behavior, Vol. 23, No. 1 (1994). A follow-up study by Kanin found that at least 50 percent of the rape complainants in two Midwestern university cities recanted their sexual assault allegations before the cases ever went to trial.
Criminal defense attorneys have no way of knowing if experts like Dr. Thompson are deliberately misrepresenting the “expert” data or if they are just so grossly misinformed. Why wouldn’t Dr. Thompson know about a 1992 Washington Post investigative report which found that one in four rape reports made in 1990 and 1991 in seven Virginia and Maryland counties were false. Or know about Linda Fairstein’s book “Sexual Violence: Our War Against Rape” in which the former Sex Crimes Unit prosecutor with the New York County District Attorney’s Office found that there are “4,000 reports of rape each year in Manhattan. Of these, about half did not happen.”
These studies reinforced an Air Force study in 1985 dealing with 556 rape accusations made in that military organization. 25 percent of those alleged victims recanted their allegations just before they were scheduled to take a polygraph examination or shortly after they underwent the examination and failed. An independent review of this study found that 60 percent of the rape allegations were false.
Dr. Reena Sommer, a divorce and custody trial consultant, is also a “child abuse expert” and she has written extensively on the subject. She states:
“Telling the truth is simply NOT enough. There are two mains reasons for this: 1) There is a common misperception held among those involved in protecting children’s interest that children do not lie – especially about something as serious as sexual abuse. And, 2) when it comes to children’s safety, the courts will always err on the side of caution. Such being the case, it becomes more clear why telling the truth is simply not enough.
“Since telling the truth is not enough, the accused and their attorney are faced with the following challenges: 1) proving that the allegations are false, 2) presenting a reasonable explanation for why the false allegations were made, and 3) demonstrating how the false allegations came to be. Meeting these challenges can be difficult for most – but certainly not impossible. What is required is the ability to piece the information together and to present it at trial in a way that is both understandable and convincing. That takes a skilled attorney who will build and present the case and an equally [skilled] consultant who will review, analyze and compile evidentiary material.
“False allegations of sexual abuse are very serious. If they are not dealt with appropriately, these allegations could result in a permanent loss of access to one’s children or worse yet, it could result in a prison term. Having the best resources are essential when faced with false allegations of sexual abuse.”
In the face of clearly established information in the field that children and other sexual assault victims do lie, the prosecutor in the Lane case attached a great deal of credibility to Dr. Thompson’s erroneous “expert” testimony that they do not, telling the jury in his closing argument:
Also, the experts, not only do they have all this training and experience and education that we usually don’t have, in our case here you have Ms. Engler [another CAC “expert” who testified in the Lane case] who actually spent 14 hours with the victim, not just the time we spent with her, but every week, hour after hour. And that could help you, if it does, decide whether or not [the victim] is a credible person. That’s why the experts brought to you and we talked about experts and everybody said they can keep an open mind and listen to experts … We learned from the expert [Dr. Thompson] that fabrications on sexual assault is extremely rare based on the paper, the studies, and the research. That’s what the experts tell you and that’s what they testify to. It is extremely rare that somebody would come up and just make an allegation like that … When you think of an allegation like that, though, what’s the first thing you do, like I talked about earlier? The credibility of the witness. Well, what’s going on? Is the allegation being made because it is true or is there some other reason?
The prosecutor knew, or should have known, that the testimony of CAC experts Dr. Thompson and Myrna Engler was in inadmissible. The Texas Court of Criminal Appeals has held since at least 1993 that expert testimony on the truthfulness of a child sexual assault victim, or that class of victims, is strictly prohibited. The appeals court in the Frederick Lane case specifically stated that “Dr. Thompson’s testimony that false allegations of childhood sexual assault are very rare had the effect of telling the jury they could believe [the victim’s] testimony, which is expressly forbidden. In addition, Ms. Engler’s testimony she counseled the complainant for fourteen weeks and determined [the victim] had been sexually assaulted was direct testimony the [victim] was truthful, which is also prohibited.”
The reality is that CAC experts, either by being seriously misinformed or by misrepresenting the “sexual abuse” data, have become nothing more than “hired guns” for the Harris County District Attorney’s Office. There is no way to gauge how many innocent people these CAC experts have sent to Texas prisons but even former District Attorney Chuck Rosenthal in 2004 recognized the possibility some innocent people had been wrongfully convicted because of CAC experts.
Harris County criminal defense attorneys must be prepared to aggressively challenge these CAC experts who are presenting nothing more than “junk science” to juries trying sexual assault cases. We simply cannot subscribe to a social philosophy that says the average American family, their relatives, and friends are “closet pedophiles” who are abusing 95% of the children in this country.
In light of the 2004 scandal involving the CAC expert and the recent Lane decision involving the prohibited testimony of CAC experts Dr. Thompson and Myrna Engler, we would urge Harris County District Attorney Pat Lykos, who has touted the notion of “reform” in the District Attorney’s Office, to launch a review of all former and current cases in which CAC experts have either testified or provided “evidence” to prosecutors to determine both the veracity and credibility of that testimony and evidence. The “interests of justice” demands such a review of a “child advocacy” center that routinely presents “junk science” testimony and evidence in sexual assault cases.
SOURCES:
Lane v. State, 257 S.W.3d 22 (Tex.App.-Houston [14th Dist.] 2008)
Young v. State, 872 S.W.2d 706 (Tex.Crim.App. 1993)
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair