Child sexual abuse allegations are some of the most difficult cases our criminal justice system faces—especially for the defense attorneys who defend against them, the prosecutors who try them, and the judges who preside over them. Laurie Shanks, Clinical Professor of Law at Albany Law School, put it this way: “Judges, prosecutors and defense attorneys must all learn to deal with the unique challenges presented by cases involving allegations of sexual abuse so that the innocent are protected, whether those innocents are the children, the accused, or both.”
One of the most devastating, if not the most devastating, life events is for a person to be falsely accused of any sort of child sexual misconduct. The moment the allegation is made, a vicious stigma of guilt attaches, and will forever scar the accused’s life, regardless of a jury acquittal, a prosecutor’s dismissal of charges, or a recantation of the charges by the false accuser.
False Allegations of Sex Assault, Divorce and Child Custody
A quiet, often unspoken, social tragedy occurring daily in this country is the increasing number of false child sexual abuse allegations being made in bitter divorce proceedings, especially those involving contentious child custody disputes. These kinds of allegations are being made by angry spouses determined to secure a greater portion of the marital assets, sole custody of the children or as vindictive punishment to the other spouse.
The first thing a falsely accused person in a child sexual misconduct case must do is hire an experienced criminal defense attorney to defend against the allegation.
To impart the reality of just how the accused person’s life has suddenly changed, the defense attorney will advise his or her client immediately avoid children without another adult present; not to engage in any conduct with children that could remotely be considered inappropriate; and carefully maintain a positive relationship with the accused’s other children, especially when the false allegations arise out of a hostile custody dispute.
False Allegations of Child Sexual Assault
Our firm was recently retained to represent a father accused of sexually abusing his step-daughter. The abuse, according to the child, started when she was eight and continued until she was fifteen, when she out cried to her mother at a family gathering.
A good defense attorney never forms a first-look opinion about a client. He or she will listen to the client’s version of the events, paying particular attention to the facts that can be readily verified. The attorney will then simultaneously launch pretrial discovery from the prosecution and conduct an extensive fact-gathering investigation to assess the degree of innocent, or guilt.
Early into the representation of our client, our investigation convinced us that the father was innocent; that the now 16-year-old step-daughter had leveled a false allegation.
Why would a child make such a terrible allegation?
3/4 of Allegations Made During Divorce are Unsubstantiated
A 1985 study titled “The National Study of Child Abuse” (Smith, 1985) found that of the 1.1 million child abuse and neglect reports made to Child Protective Agencies each year at the time, some 600,000 of these could not be substantiated. A more recent 2012 study, “Sexual Abuse Allegations in the Context of High Conflict Divorce,” found that 40 percent of child sexual abuse allegations occur in the context of a divorce proceeding, and that in roughly 3 out of 4 of these cases, the legal system found no evidence of abuse. And a series of studies between 1987 and 1995, found that the percentage of false child sexual abuse allegations ranged from as low as 6 percent to as high as 35 percent.
In the 1970s and 1980s when child sexual abuse allegations became more prominent in American society, there was a general reluctance in the criminal justice system to accept the allegations as true.
Flood of Unfounded Reports of Abuse
In 1974, Congress passed the Child Abuse Prevention and Treatment Act which established the National Center on Child Abuse and Neglect (NCCAN). A decade later, NCCAN’s first director, Douglas Besharov, said that “we now face an imminent social tragedy: the nationwide collapse of child protective efforts caused by a flood of unfounded reports.”
But, as Professor Shanks pointed out, “the pendulum has swung from a reluctance to believe any charge made by a child against an adult to a non-reflective embrace of every accusation made, no matter how implausible or fanciful.”
And that is precisely what happened in the case of our client.
Anatomy of a False Allegation
Our client and his wife were experiencing serious and heated marital problems, with divorce becoming the most likely solution. The daughter, who had a history of lying and fabrication, was acutely aware of the increasing tension between her parents. At the time she made the allegations, the teenager was also experiencing emotional tension with a boyfriend who wanted to break off their relationship.
It was during an angry encounter with the teenaged boyfriend that the stepdaughter made her first outcry about being sexually abused by our client. The boyfriend demanded that the stepdaughter “report” the abuse. She resisted. The boyfriend finally gave her an ultimatum: the stepdaughter either report the abuse or he would.
A short time later, during a dinner engagement, the stepdaughter told her mother and grandparents, on her mother’s side of the family, about the abuse. The mother and grandparents made an initial decision not to do anything until they could “figure out” how to deal with the allegations and plan about how to proceed. Despite their legal obligation to report the alleged criminal sexual abuse of their child to law enforcement, the mother and her parents waited three weeks before they spoke to an attorney about the abuse. The attorney promptly reported the allegation to the proper authorities.
A criminal investigation was launched.
Tunnel Vision Prevents Thorough Investigation
A detective was assigned to the case. She immediately pursued a classic “tunnel vision” investigation directed against our client. Professor Shanks pointed out that the pendulum shift in the criminal justice system that now accepts child sexual abuse allegations as automatically true “has not been lost on police officers. In many cases involving young children who make allegations of sexual abuse, the police disregard their trainings and make arrest based exclusively on the words of the child, without confirming whether the story makes sense, whether it can be corroborated and whether the physical evidence is consistent with the child’s account.”
Protocols for Investigations
The generally accepted protocols for investigating child sexual abuse allegations include: 1) child interview, 2) medical exam, 3) non-offending parent interview, 4) interview with alleged offender, and 5) risk assessment.
The investigator in our case did not adhere to these protocols. She never interviewed our client. By failing to do so, the investigator, especially by being a woman, raised a legitimate question about gender bias against our client—or, as we said, it could have been that she simply operated under the widely discredited “tunnel vision” law enforcement investigation technique.
Whatever the reason, the failure to interview our client certainly indicated an assumption of guilt; and once the arrest was made, there was a presumption of guilt by both the detective and the prosecutor, who was also a woman. They arrested our client and then attempted to build a case of guilt against him.
Flawed Police Investigation
The detective had the authority to obtain a warrant and search all the premises where the sexual abuse allegedly occurred for any physical evidence. She could not operate on the premise that there was no physical evidence since the alleged abuse occurred over a protracted period. A search should have been done for biological or other physical evidence to corroborate the allegation. There were also electronic devices at the family residence that should have been seized and forensically examined for supporting evidence. No attempt was ever made to search for actual evidence of the crime, other than the child’s statement.
The purpose of a law enforcement interviews in child sex cases is this: the investigator seeks more information regarding the allegations, tries to assess the quality of the family relationships, and tries to understand the causes of the alleged abuse. These interviews also give an investigator a road map of what kind of evidence may exist and where to search.
Importance of Complete Investigation
Going into such an interview with an accused, the investigator must understand that there is a possibility that the suspect may provide information that refutes the allegation or, as often happens, corroborates to the offense. A professional investigator will never turn away from an opportunity to secure an admission of guilt.
While the investigator may enter an interview with a suspect having attached credibility to the allegation made against him, the investigator knows (or should know) that there are cases where an accused can provide a reasonable explanation contradicting the child’s allegations.
In our case, had the investigator understood the family dynamic, she could have worked under the investigatory premise that the mother and/or the victim had a vested interest in concealing certain information and/or presenting themselves in a favorable light. Thus, it would be essential to a complete investigation to gather additional information from other sources, including other family members (such as both sets of grandparents), the family’s informal social network and friends, and any past professional counseling the mother and/or daughter had undergone. To do no investigation at all is inexcusable, especially given that our client was facing life in prison.
Flawed Police Investigation in Child Sex Abuse Allegation
In effect, the criminal prosecution against our client began with a flawed law enforcement investigation and was presented to a jury only after the prosecutor had intensely coached the stepdaughter/victim about what exactly to say to the jury and how to say it.
Yet, despite all this pretrial “preparation,” the victim was caught in a number of inconsistencies and lies on the witness stand. The jury could not reach a verdict. The judge declared a mistrial.
The prosecutor, realizing that she could not correct the alleged victim’s lies and fabrications, dismissed all charges before a retrial could take place. Our client was facing possible incarceration for the remainder of his life, he is now a free man with a stain on his good name.
Tragedy Rocks Family
The end result of this social tragedy is this: two families have been torn apart; our client’s relationship with his son has been severely damaged, perhaps irreparably; and our client must now live the rest of his life with a red scarlet letter attached to his back.
The old saying “you can’t un-ring the bell” applies here.
We embrace an observation made by Professor Shanks:
“The challenges of child sexual abuse cases make it difficult to obtain justice for true victims while also protecting the accused from wrongful convictions. The stakes are incredibly high for both the alleged victim and the accused. For the accused, the mere accusation of sexual misconduct with a child may lead to financial devastation, job loss, family destruction and social and professional ostracism. For the child who was not in fact abused, the repeated retelling of fabricated and salacious story can turn an otherwise unharmed child into a victim…”
Our client’s case should never have been indicted, much less reached a jury. A complete and thorough investigation should have caused serious questions in the minds of both the investigator and prosecutor. While we believe that our client was falsely accused of this terrible offense, and we are thankful that a jury’s inability to reach a verdict convinced the prosecutor to dismissed the charges, the fact that is that these allegations have damaged his life and the lives of his family members. That bell cannot be un-rung.