It is not as uncommon as many people think – children do make false allegations of sexual abuse by adults. It’s a subject we have addressed here on a number of occasions (here, here, here, here, and here).
Evidence of Prior Sexual Abuse Committed by Complainant/Victim
On May 25, 2016, the Texas Court of Criminal Appeals (TEX CRIM APP) in Johnson v. State held that a trial judge erred by not permitting a defendant convicted on two counts of aggravated sexual assault of a child (for which he was given two life sentences) to cross examine the victim about his prior sexual abuse of his own sister. The court said such evidence supported the defendant’s theory that the victim fabricated the sexual molestation charges against him. The TEX CRIM APP then reversed and remanded the case back to the lower appeals court for a “harm analysis” under Texas Rule of Appellate Procedure 44.2(a).
The alleged sexual abuse in this case occurred in the summer of 2007.
The defendant was a board member of the church attended by the victim and his family. The defendant and the 12-year-old victim had established a close relationship over the previous year. This relationship involved the defendant taking the child to movies, hockey games, out to eat, and to his home. The victim would later allege that those “benefits” were in exchange for sexual favors he provided to the defendant that began in late May or early June of 2007.
Victim was Bullied, Depressed, Watching Porn and Sexually Abusing Sister
In May 2007, the victim was not communicating with his mother; he was depressed and viewing pornography (a practice he had engaged in over the previous two years); and he was being bullied at school. The parents began to suspect the victim was sexually abusing his sister and they “wanted it to stop.” They placed him “in counseling” with a church therapy group.
By the fall of 2007, the victim and the defendant had a falling out over a video game the victim wanted but defendant donated to a church group to which the victim belonged. During this same time frame, according to the victim’s father, the victim was caught shoplifting at Walmart, and, again, according to the father, was given a “beating” by the father.
The Outcry
The victim made an “outcry” in November to a church counselor about the defendant’s alleged sexual abuse. The counselor informed the parents who notified the authorities. The defendant was arrested in December 2007.
In May 2008, the victim was charged with sexually assaulting his sister sometime in April. In July, he was given probation and a decision on his sex offender registration was deferred until he completed an approved sex offender treatment program. The victim was discharged from his probation in July 2010. His juvenile record was sealed.
Brady, Exculpatory Evidence and Need for Impeachment
In October 2009, the State informed the defendant during a pretrial hearing that the victim had previously been adjudicated for a sex offense. Defendant’s attorney immediately argued to the trial court that this revelation constituted Brady evidence that could be used for impeachment purposes. The State responded that the juvenile adjudication was not admissible for impeachment, arguing that the victim’s offense occurred months after he had been sexually molested by the defendant.
The problem with the State’s position, as pointed out by defense counsel, was that some of the sexual assaults the victim committed against his sister occurred prior to his outcry to the church counselor. Defense counsel argued that these prior sex acts lent credence to its theory that the victim fabricated the sexual abuse allegations against defendant in order to get back into the good graces of his parents.
In effect, the alleged victim wanted to be a “victim” and not a “victimizer.”
Trial Court Excludes Evidence of Sexual Abuse Committed by the Victim
However, two years later (in 2011) the trial judge ruled that the victim’s outcry against defendant occurred before he was placed in the juvenile system and, therefore, had no relevance in the case against defendant.
A three-judge panel of the Second Court of Appeals reversed the trial court’s ruling, finding that the defendant’s confrontation rights had been violated. However, on en banc reconsideration, the Court of Appeals ultimately overruled the three-judge panel decision and reinstated defendant’s convictions.
Sixth Amendment, Confrontation Clause Offended If State Evidentiary Rule Prohibits Meaningful Cross Examination
The Texas Court of Criminal Appeals review focused on whether the trial court’s decision not to allow cross examination of the victim about his prior sexual history did in fact violate defendant’s Sixth Amendment confrontation right.
The court noted that while that right is not absolute and all-encompassing, “the Constitution could be offended if a state evidentiary rule prohibited the defendant from cross examining a witness concerning possible motives, biases, and prejudices to such an extent he could not present a vital defensive theory.”
The TEX. CRIM. APP. then specifically rejected the en banc panel decision, saying: “… the appellate court held that, although ‘the constitutional right of confrontation includes the right of cross-examination to show bias or fabrication,’ the trial court has the discretion to impose reasonable limits on such cross-examination based on concerns, such as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ The appellate court held that [defendant] failed to show that the excluded evidence about H.H.’s past sexual behavior and subsequent juvenile adjudication ‘fell outside this wide latitude and did not relate to any of the[se] valid concerns recited in Van Arsdall. We disagree with the appellate court’s conclusion.”
Past Sexual History Cannot Be Used to Harass Prejudice Witness, Confuse Issues or Threaten Witness Safety
The TEX. CRIM. APP. next explained the basis for its disagreement with the court of appeals:
“There is no indication in the record that the trial court excluded the evidence of H.H.’s past sexual behavior because it had concerns about harassment, prejudice, confusion of the issues, witness safety, or repetitive interrogation. Even if the judge had expressed such concerns, there is no evidence in the record to support them. H.H. readily admitted, outside the presence of the jury, to being in counseling at the behest of his parents because he had been sexually molesting his sister for a number of years. He did not appear harassed or in fear of his safety, and such testimony was not repetitive of any other evidence that was before the jury. Furthermore, we fail to see how such testimony would have confused the jury regarding the issues in the case.
“Moreover, the evidence that H.H. had been sexually molesting his sister, and that his parents had placed him in counseling because of it, was clearly relevant to the issue of whether H.H. had a motive to falsely accuse Johnson of sexual assault. Although Rule 403 gives a trial judge discretion to exclude evidence that is more prejudicial than probative, in sex assault cases such as this one, where the credibility of both complainant and the defendant is the central dispositive issue, Rule 403 should be used very sparingly. Under Rule 403, the danger of unfair prejudice must substantially outweigh the probative value.”
Motive to Fabricate the Accusation Constitutionally Required to be Admitted Under the Confrontation Clause
In most child sexual assault cases, it is the credibility of the child versus the defendant. A child’s prior sexual abuse of others, as well as any false sexual allegations made by a victim, should always be, we feel, admissible impeachment evidence. This is especially vital considering that, in Texas, a child’s uncorroborated testimony alone is sufficient to send a defendant to prison for the rest of his or her life.
In this case, it is arguable that the victim not only wanted to get the defendant “in trouble” (to borrow the victim’s own language) out of revenge over the video game but to turn himself into a “victim” of sexual abuse rather than a “victimizer.” Had the TEX CRIM APP not ruled as it did, the defendant would have certainly spent the rest of his life in prison based upon a suspicious conviction from a trial court ruling that prevented him from effectively defending himself. We can only hope that the Court of Appeals finds harm and that the case be sent back to the trial court for a new trial. Regardless of the reality of what really happened, it is vital that a life sentenced be supported by a fair trial in which the defendant has the ability to engage in a robust exercise of his Constitutional Rights, including the right to cross examine.
In Texas, and in most states across the United States it is already too easy to convict a defendant charged with a sex crime against a child. From the moment the charge is announced to the jury there is an immediate prejudice against the defendant, a prejudice that most people with children share. Given the reality that the cards are already stacked against the defendant, there is no reason to prevent the accused from fully exercising his Constitutional rights. There are already far too many people incarcerated for crimes they did not commit…