By: Edward Martinovich, Attorney at Law and Ariella Rosenberg
In 1986, a defendant was convicted of four counts of first-degree sexual offense and ordered to serve two life sentences. In 2001, after spending fourteen years in prison, this defendant was released, two years after his daughter, admitted that she had lied about her father molesting her. Although a medical examiner had found no evidence of the defendant’s alleged sexual abuse, the daughters story was so convincing that it held up until she finally admitted to the falsehood. Her excuse: she had lied to escape her strict, religious upbringing. The cost: 14 years of freedom and his reputation. His life was irreparably harmed.
A similar case occurred last year, when, after spending twelve years in prison, the defendant walked free. The defendant had been sentenced to forty years in prison in 1992 for molesting a 3-year-old girl. A few years ago, the alleged victim found out that the defendant was in prison and told a relative that she had been coerced into lying to authorities. Apparently, another relative, who had harbored a long-standing grudge against the defendant, had coached the girl.
Sadly, false accusations of molestation are a frequent reality in the criminal justice system. Besides detracting from credible cases of true sexual abuse, false accusations have put many innocent men and women behind bars, while destroying their families and ruining their lives. The motives for manipulating a child into making a false accusation can range from revenge over a broken relationship to a desire to gain full custody of a child. In cases where there are huge sums of money at stake, or in cases involving celebrities, such as the recent Michael Jackson trial, the motives often include a desire to obtain a financial winfall from a public figure.
Federal Law on Child Abuse Prevention
The Mondale Act of 1974, also known as the Child Abuse Prevention and Treatment Act (CAPTA), brought the phenomenon of child molestation to the public eye. 42 U.S.C.A. 5101. Before the passage of CAPTA, child abuse was concealed and rarely reported. With the Acts adoption, states were required to enact more effective child abuse laws, threatening to withhold funding should the provisions of the federal code not be incorporated into state law.
Although the Act is clearly beneficial to the plight of abused children, it is also vulnerable to abuse by those with unseemly agendas. Whereas the Act contains provisions for immunity for individuals making good faith reports of suspected or known instances of child abuse, anyone failing to report any incident of suspected child abuse can be convicted of a felony and have their professional license suspended. 42 U.S.C.A. 5106a. Understandably, the system encourages officials and experts to err on the side of reporting cases of potential child abuse. However, the combination of extreme pressure on officials not to miss a valid report of abuse and the relatively minor consequences faced by false accusers create a tension in the bureaucratic structure, thereby creating a legal nightmare for the wrongfully accused.
After spending twenty years in a California prison after a 1985 child molestation conviction, on defendant was released last year on his 61st birthday. Four of the defendants accusers, now adults, testified that overzealous criminal investigators manipulated them until they fabricated the stories of abuse. Doctors had never even examined the victims. The defendants case demonstrates a classic case of nervous and overanxious childcare officials fearing the legal consequences of failing to protect a truly abused child, only to overreact and lead children into false accusations of molestation.
Different states maintain different statutes regarding punishment for those who coach their children into false accusations against a spouse to gain advantage during a bitter divorce or custody battle. The phenomenon is common enough to have been given a name by mental health professionals: SAID syndrome (sexual allegations in divorce). It goes hand in hand with Parental Alienation Syndrome (PAS), a disorder made up of a combination of brainwashing of a child by one parent to incriminate the other, and of self-created contributions by the child in support of the alienating parents campaign of incrimination. PAS is almost exclusively seen in the context of child-custody disputes, during which false accusations of molestation often arise. Whereas the legal consequences for convicted molesters can include life in prison and lifetime registration as a criminal sex offender, oftentimes those who coerce a child into a false accusation face no more than a fine and less than a year in jail. Let us examine the high-stakes custody battle between a casino mogul and former playboy model wife. Although the judge in the initial trial found that the defendant had coached the couples twin daughters, then 4, to make false accusations of sexual abuse against their father, on appeal, judges still returned the twins to their mothers custody. In this case, the penalty his estranged wife suffered for forcing their children to lie was actually a victory, in that she gained custody of the children.
What To Do If You Are Falsely Accused
False allegations of child molestation are different from most other criminal allegations due to their sexual content, which makes them emotionally charged and highly sensitive. Moreover, since a mere touch of a child can form the basis for a molestation charge in most jurisdictions, these allegations rarely have any medical evidence to support them. Consequently, the trial becomes a battle between the words of a very sympathetic young child versus those of a less sympathetic adult. Add to this, general public paranoia and outrage fueled sometimes by incessant media coverage and you have a recipe for disaster. Therefore, when a child claims to have been abused, the accused is forced to become a public figure and come forward to proclaim his innocence, and, in some instances, be forced to testify at a trial. This creates unfairness within the criminal justice system, wherein the accused has a right to remain silent and is presumed innocent until proven guilty by the prosecution.
Those who have been falsely accused of crimes against children, especially crimes that are sexual in nature, have options. It is imperative to retain expert legal counsel early on in the process. This means at the beginning of an investigation by either the social service agency or law enforcement. What is done at the outset can dictate how and if a criminal prosecution will ensue. Of course, it goes without saying that anyone who is facing criminal prosecution should have an attorney who is experienced in handling these types of criminal cases. Many accused adults decide to plead no contest or guilty to false accusations of molestation under the mistaken belief that a plea does not constitute a criminal conviction. Further, they feel compelled to accept such a plea offer because it results in less custody time than they face if they went to trial and were convicted. What the uninformed person does not know is that a plea of no contest or a plea of guilty is a criminal conviction, which may result in the loss of ones right to appeal, the requirement of lifetime registration as a sex offender, and the public posting of ones name and place of residence. 42 U.S.C.A. 14071. A convicted sex offender may also be ordered to undergo treatment, may be barred from holding certain kinds of jobs, and may be ordered to stay away from children, including their own, regardless of whether or not they were the alleged victims, or to enjoy only supervised visits. Moreover, convicted sex offenders often are subject to searches, seizures, and interrogations by law enforcement every time that a sex crime occurs in the area in which they live. The bottom line is that before one makes a decision that has such far-reaching consequences, one must be absolutely certain that he has received the best counsel possible.
For these reasons, a seasoned legal expert is crucial to help fight false accusations. A smart attorney will prepare a roadmap of the strategy to be used to defend against these types of allegations. A good attorney will discuss with the client what resources will be needed to wage the war against the governments charges. One most certainly will consider the need for medical, psychological and sociological experts. Experts can evaluate and analyze medical or scientific evidence. Experts can conduct an in-depth evaluation of the client. Experts can educate a judge and jury as to the nature of child witnesses and the subject of suggestibility of children. Experts can review and analyze video, audio and written accounts of a childs interview to determine whether the proper interviewing techniques were employed and whether or not a child is credible.
A smart attorney will also counsel the client as to how to conduct himself and what proactive steps to take prior to any trial in order to prepare for certain phases of the case. It is important to note that one who is accused should never confront the child or any other witness about the investigation. A simple conversation may lead to charges of violation of an order of protection, which orders are routinely issued in these types of cases, as well as accusations of intimidating a witness or endangering the welfare of a child.
A smart attorney may also discuss the possibility of having the client submit to a polygraph test (records the bodys responses to truths and lies to judge credibility) and/or a plethysmograph test (records sexual responses to pedophilic material to determine whether any sexually based mental health disorders may be present). Some of these tests and their results may not be legally admissible in court; however, they may be successfully used in discussions with a prosecutor prior to the filing of a criminal complaint to affect the decision as to whether and what types of charges are filed or in negotiation and mitigation once the criminal prosecution has begun.
If I am innocent of the allegations, why do I need a lawyer?
A person who is being investigated for a crime he or she did not commit can benefit from hiring an attorney as soon as possible, even before charges are brought. In particular, in investigations of sexual crimes, such as child molestation, it is important to have the benefit of counsel as early as possible. As a person under investigation, your most important protection is your right to hold the government to the burden of proving its case without any voluntary statement from you.
Your attorney can communicate on your behalf to the investigators. False allegations of child abuse and child molestation sometimes occur when a family member is engaged in a child custody or divorce proceeding. Although many states have laws that impose sanctions for making such accusations, (for example, California Family Code Section 3027.1)(*1) many accusations are still made because it is often difficult for the court to conclude that the allegation was made in bad faith, and not out of an exercise of caution in response to some statement by the child.
If child abuse investigators are contacting you, they have already concluded they have some basis to believe the accusations are true. Investigative agencies are not legally required to follow up on all accusations they receive, and often reject fanciful and contrived allegations without contacting the suspect. If the allegation is false but sufficiently believable for investigators to proceed, the accuser has most likely provided a wealth of factual detail to support the allegations. In questioning a suspect, investigators rarely provide the accused with reports of the allegations, and are even permitted to mislead the accused in an effort to prompt the accused to give a statement. Your statement may inadvertently corroborate relatively minor details, providing sufficient evidence for an arrest to occur.
If you are falsely accused of child molestation it is important to take precautions. Falsely accused persons often mistakenly believe that hiring counsel will cause the authorities to assume the suspect must be guilty. In truth, investigators, prosecutors, and courts must respect your right to counsel and your right to remain silent. They cannot infer that your statement would have implicated you merely because you have retained counsel, or you have declined to give a statement. On the other hand, any statement a falsely accused suspect gives may supply inadvertent corroboration to the accusations, and therefore allow the authorities to obtain probable cause for arrest.
Furthermore, there is no guarantee as to the length of time an accused person will be questioned or under what circumstances. Investigators who believe they can break down a suspects resistance to admitting the truth of a crime may prolong questioning for many hours. They may also question the accused about a wide range of topics, which may appear to not even relate to the present situation. They may conduct the interview in a very uncomfortable setting, even leaving the accused isolated for many hours in an effort to overcome resistance and make the suspect feel hopeless. Finally, investigators are trained at obtaining statements and admissions that are favorable to the prosecution, and may succeed in doing so, even when the accused is innocent.
Due to the current legal and political environment described above and the significant consequences of a sex crimes criminal conviction a criminal defense attorneys assistance could prevent formal charges.
A person investigated for child molestation should remember that only conversations with his or her attorney and the attorneys staff and investigators are privileged against discovery. Any conversation with police investigators, child protective services, family, friends and the alleged victim can be admitted into court as evidence of admissions (*2) or prior inconsistent statements. Even minor deviations between a different persons accounts of the accusers side of the story can appear significant in a later trial.
Frequently police set up a call from the alleged victim to the suspect and monitor the call for any type of incriminating statement, which may be used in the subsequent criminal prosecution. A person is under no obligation whatsoever to cooperate with authorities in his own criminal prosecution and by allowing an attorney to speak for him, the falsely accused may very well save himself from a criminal conviction. An attorney may even be able to supply evidence in your favor, such as statements from other witnesses, or arrange for a psychological evaluation showing that you do not have the personality profile of a person who victimizes children.
The vast majority of those convicted of criminal charges have made some type of statement in investigators, while conversely those who exercise their right to remain silent have a much stronger likelihood of avoiding a criminal prosecution.
As our discussion reveals, the crime of child molestation and other crimes against children are serious offenses that are not to be taken lightly under any circumstances. Given the gravity of the offenses and the severity of the possible consequences, those who have been falsely accused of child molestation or similar crimes must have an experienced attorney at their side in order to prepare and execute an effective defense.
*1. California Family Code 3027.1. False accusations of child abuse or neglect during child custody proceedings; knowledge; penalties
(a) If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.
(b) On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served.
(c) The remedy provided by this section is in addition to any other remedy provided by law.
*2. An admission is any statement made by a criminal defendant outside of court. An admission need not even be a statement adverse to the defendants interest. For example, California Evidence Code Section 1220 defines an admission by a party as:
1220. Admission of party
Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.
This rule is very advantageous to a criminal prosecutor, because while any alleged statement of the defendant can be admitted, because the defendant is a party to the case, the accuser is not a party to the case, and his or her statements out of court are therefore not admissible under this rule.
A prior inconsistent statement is also admissible. California Evidence Code Section 1235 provides:
1235. Inconsistent statements
Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing
CALCRIM Instruction No. 318 explains to juries that all versions of a witnesss statement, whether spoken live in court, or introduced as a prior inconsistent statement are admitted for the jury to consider for their potential truth. This also allows jurors to decide if the version presented in court by the witness is to be believed:
318. Prior Statements as Evidence
*3. You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways:
1. To evaluate whether the witness’s testimony in court is believable; AND
2. As evidence that the information in (that/those) earlier statement[s] is true.
This rule applies to any witness who testifies on either side of the case, or whose hearsay statements are admitted through another witnesss testimony.
3. All criminal courts allow the accused to admit evidence of his or her good character as a defense to crimes. Juries may find a verdict of Not Guilty based on good character alone, for example, CALCRIM Instruction 350 reads in part: Evidence of the defendants character for _______ <insert character trait> can by itself create a reasonable doubt In the California case of People v. Stoll (1989) 49 Cal.3d 1136, 783 P.2d 698, 265 Cal.Rptr. 111, the California Supreme Court found that a defendant may introduce evidence of a psychologists expert opinion, based on interviews of the client and standardized psychological testing that the defendant is not sexually deviate:
we found prejudicial error in the exclusion of expert opinion testimony that defendant is “not a sexual deviate” where offered to prove that he did not commit lewd and lascivious acts upon a child. (Stoll, supra, 49 Cal.3d at 1152).