As in most cases involving sexual assault, there are typically only two parties and no eye witnesses. Unlike most sexual assault cases in which the parties did not have a long relationship with one another, this is often quite the opposite in child sexual assault cases. An alibi defense is typically useless because the accused is often a person who has unfettered access to the child without supervision. And in situations involving touching, there are typically no marks. No bruises. No DNA. The evidence starts with a single statement of accusation, and it builds from there.
Because there is little physical evidence in child abuse cases, the strategy of law enforcement is to bolster the accusation. First, the law allows an outcry witness to testify as to the hearsay of the child’s statements. If the child told different facts to different outcry witnesses (typically more involved explanations of abuse) these outcry witnesses are similarly allowed to testify. Although there are no marks or tearing or bruising which would conclusively indicate sexual abuse, the prosecution typically calls a doctor to testify that the child’s physical examination is “not inconsistent with sexual abuse.”
The pattern of circumstantial evidence builds from there. While nothing ever conclusively proves sexual abuse, witness after witness testifies as to behaviors that are “consistent with” or “not inconsistent with” sexual abuse. Soon, every act of the child is viewed through that lens:
Is the child acting out at school? Consistent with sexual abuse.
Is the child behaving find at school? Not inconsistent with sexual abuse.
Is the child acting out at home? Consistent with sexual abuse.
Is the child acting like nothing happened? Not inconsistent with sexual abuse.
Does the child ask about the suspect? Consistent with sexual abuse.
Does the child ignore the suspect? Consistent with sexual abuse.
Does the child want to see the suspect? Consistent with sexual abuse.
Does the child not want to see the suspect? Consistent with sexual abuse.
Is the child hungry? Consistent with sexual abuse.
Is the child not hungry? Consistent with sexual abuse.
Because people respond in different ways to trauma, and because every person, every relationship, and every action is uniquely different, every single otherwise innocent action can and will be used as proof that the child was abused. With the experience of litigating these types of cases and defending against this prosecution strategy, one quickly learns that the attacking this myopic mentality is far more important than trying to attack the child.
That doesn’t mean that the child shouldn’t be subject to thorough cross-examination. As anybody with children knows, children do lie, and often quite convincingly. Most of the exonerations of people wrongfully accused of child sexual abuse cases occurred when a child lied about the assault out of spite, revenge, or from unwitting encouragement of a paranoid parent who planted the seed as an explanation for otherwise normal but aberrant behavior.
Two important bedrocks of criminal jurisprudence – the unanimous jury verdict and prohibition against character evidence – are being disregarded in the zeal to convict as many people of child abuse as possible.
Because there is often no physical evidence, the jury is left to decide the weight of the evidence by the credibility of the witnesses. If the jury does not unanimously believe the state has proven the charges beyond a reasonable doubt, the accused must be acquitted. In Texas, every person accused of a crime is entitled to a unanimous jury verdict.
The prohibition against character evidence as the sole basis to convict is based upon the quaint notion that there is a difference between proof and reputation, and simply because somebody has a reputation as being a bank robber doesn’t mean that they held up the Frost Bank last week. Without specific articulable, facts connecting a person to the crime in question, the prosecution is not allowed to obtain a conviction because he has a bad past.
Both of these principles have been compromised in child sex assault cases. In statutes like Continuous Sexual Abuse of a Child, the jury unanimity component has been eliminated entirely:
If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those Acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.
While the unanimity issue is at the forefront, the unspoken problem is that it provides the State with what would be an unlimited allowance on introducing character evidence and extraneous acts to meet their burden. Without the defense filing specific pretrial motions and seeking a proper election, most of the defense protections built into the rules of evidence disappear.
As in any panacea, the fear of the crime blinds rational policymakers into the reasons we have rules and standards and principles in the first place. In the arena of child sexual assault cases, this has never been truer. |
