Child sexual abuse cases inherently create bias in every prospective juror. Every person with an iota of compassion and morality has an innate drive to protect our children.
Anyone called to court as a potential juror in a child sexual assault case brings a presumption of guilt. It is human nature. Public revelations about politicians, lawsuits against religious institutions, and criminal charges against trusted members of society about abuse are often salaciously reported by the media, exponentially spreading the child sexual abuse bias in American culture. Additionally, as we pointed out in an October 2019 post, roughly four out of every ten adult Americans have been victims of sexual abuse.
Some prospective jurors during a voir dire examination will admit to a close connection to sexual abuse and an inherent and unsurmountable bias and be subject to exclusion from jury service in child sexual assault cases.
Others will not disclose. They will secretly carry their trauma from sexual abuse into the jury room. For many, it is an opportunity to get even against a child predator or protect the child, regardless of what the evidence may show.
We now know from comprehensive media coverage that a juror in the sensationalized December 2021 child sexual assault trial of Jeffery Epstein’s partner, Ghislaine Maxwell, did not disclose on voir dire that he had been the victim of sexual abuse as a child.
The judge in the Maxwell case, Judge Alison Nathan, issued a 40-page opinion last year in which she said the decision to exclude a child sexual abuse victim from a jury is “not simply whether an individual has had experiences similar to the issues that will be explored at trial, but whether the individual can serve fairly and impartially” as a juror.
Finding the juror had failed to disclose his past sexual abuse, the court declined to find he was actually biased. Judge Nathan’s ruling runs against the grain of credible scientific research, which shows that jurors’ sexual abuse experiences inevitably influence their decisions in jury verdicts.
This research shows three fundamental biases inherent in these jurors. They are:
- Are more likely to empathize with child victims;
- Are more likely to find child victims credible; and
- Are more likely to convict.
Prosecutors are aware of these biases in virtually every juror called to serve on a child sexual abuse case. That is why they routinely use “child abuse experts” to inform the jury about:
- The general dynamics of child sexual abuse disclosures;
- Their experience in interviewing child sexual abuse victims;
- Information about the rate of sexual abuse victimization among female and male children before their 18th birthday;
- The low percentage of children who report sexual abuse;
- The overwhelming probability (between 90 and 95 percent) of the truthfulness of a child reporting sexual abuse;
- The reasons why children often delay reporting sexual abuse;
- The behavior and characteristics of sexually abused children; and
- The physical damage caused by the sexual abuse of children.
The courts generally rule that this type of “expert” testimony in child sexual assault cases “educates the jury, does not usurp its role of assessing credibility, and assists it in understanding the evidence and whether the abuse actually occurred.”
The Harris County District Attorney’s Office more than frequently uses employees at the Harris County Children’s Assessment Center (CAC) as “experts” in child sexual assault cases, particularly those designated as “forensic interviewers.”
Another frequent “expert” testifier in Harris County child sexual abuse cases is the Director of Clinical Therapy and Psychological Services at CAC, Dr. Lawrence Thompson. This psychologist does not typically interview child sexual abuse victims. Instead, prosecutors parade him before local juries to make these points:
- He has worked with hundreds of children, some as young as three;
- He explains that “delayed outcry” is the time between the actual abuse of the child and the reporting of it by the child;
- He states that “delayed outcry” is a frequent occurrence in child sexual abuse cases;
- He asserts that shame, guilt, fear, feelings of responsibility, and sometimes an “attempt” to protect the abuser;
- He adds that “delayed outcry” feelings do not diminish or go away simply because the abuser has “gone away;”
- He states that the timing and amount of disclosure depends upon each individual child and what they may be comfortable with;
- Again, based on each individual child, he explains the reaction each child has to sexual abuse includes depression, anxiety, interpersonal difficulties, suicidal thoughts, and actions, sexual acting out, and repression of natural tendencies;
- He will explain what he describes as a frequent tactic used by child sex abusers called “grooming”—a process of winning the child’s trust, coercing the child into “keeping a secret,” making the child feel special, making the child feel dependent, and the use of threats and psychological manipulation to keep the child from reporting the abuse.
Jurors, particularly those who have been sexually abused, hearing this enormous volume of “expert” testimony will automatically, perhaps instinctively so, attach unshakeable credibility to the child’s testimony. This expert testimony allows every conceivable response of a child to be “consistent” with child sexual abuse.
So why is such expert testimony allowed despite its explicit prejudice against a defendant being tried in a child sexual abuse case?
In a July 2020 opinion, the Court of Appeals for the First District of Texas offered this explanation generally accepted in Texas courts:
“Expert testimony that a particular witness is truthful is inadmissible under Texas Rule of Evidence 702. An expert may not give an opinion that a complainant, such as a sexual assault victim, or the complainant’s class is truthful. Expert testimony concerning general behavioral characteristics of sexually abused children, however, is admissible because it ‘helps the jury understand the seemingly illogical behavior of the child who changes her story, seems confused, and does not immediately disclose a sexual assault.'”
The problem with this explanation is this: under Texas law, Article 38.07 of the Texas Code of Criminal Procedure, the testimony of a child sexual assault victim standing alone, in most cases, is sufficient to support a conviction. Under state law, the prosecution is not required to produce medical, physical, or forensic evidence in order to prove its case beyond a reasonable doubt. The child merely has to point a finger of guilt at the defendant. No more is required.
The bottom line is this: the prosecution presents testimony like that given by Dr. Thompson not to educate the jury but to bolster the child’s credibility and feed into the prevalent biases juries have in child sexual assault cases.