Basic Laws Specific to
False Allegations of Abuse Cases
Provided by Allen N. Cowling
The following consists of basic laws and issues that
may, or may not become a problem in defending false allegations of child sexual abuse. Each topic is
addressed by individual state laws and each should be carefully researched before assuming that it
applies to any one jurisdiction. We identify the following simply as a means of providing a defendant
or their attorney the opportunity to head off potential problems, prior to trial. As stated, each state
has laws that address each of the following issues and many, although accepted in some jurisdictions,
have been shown in others to be a violation of a defendant's constitutional rights. For example,
cases have been overturned because a Court allowed the testimony of a child accuser via videotape
stating that it was a clear violation of the defendant's constitutional right to confront their
accuser. If, however, a defending attorney is not aware of the local statute, the accused may find
themselves in an awkward position at trial with no argument when the prosecutor files a motion to allow
the child to testify via videotape.
Mandatory Reporters of Child Abuse and
Neglect
- Every State and the District of Columbia have statutes identifying
mandatory reporters of child maltreatment, and under what circumstances they are to report. Any
person, however, may report incidents of abuse or neglect. Today, reporting laws embrace all
professionals working with children. Individuals typically designated as mandatory reporters
include physicians, nurses, hospital personnel, dentists, medical examiners, coroners, mental
health professionals and social workers, school personnel, law enforcement officials and child care
providers.
- In 18 States, any person who suspects child abuse or neglect is
required to report. Typically, a report must be made when the reporter suspects or has reason to
suspect that a child has been abused or neglected. Mandatory reporting statutes also specify when a
communication is designated as being privileged. Privileged communications are specific situations
where mandatory reporters are not required by law to report cases of child maltreatment. The
privilege most widely recognized by states is that of attorney-client. The clergy-penitent
privilege also is frequently recognized. Basically, false allegations of sexual abuse increased
when the mandatory reporting laws began. Incidents that may not have been reported prior to the law
being established were then reported out of fear of conviction for failure to report.
Penalties for Failure to Report
- Many cases of child abuse or neglect are neither reported nor
investigated even when suspected by professionals, therefore, the majority of states impose
penalties, in the form of a fine or imprisonment, on those who knowingly or willfully fail to
report. Approximately 45 States and the District of Columbia have enacted statutes specifying the
penalties for failure to report child abuse or neglect. The majority of States apply a
"knowingly," "knows or should have known" and/or "willfully"
standard. Other standards include "intentionally" and "purposely." A few States
impose penalties without providing a standard.
Central Registries, Expungement of
Records
- The term expungement refers to the procedures used by States to
maintain and update their central registries and record-keeping by removing old or inaccurate
records. Under the Child Abuse Prevention and Treatment Act (CAPTA), in order to receive a Federal
grant, states must submit plans which include provisions and procedures that facilitate the prompt
expungement in unsubstantiated or false cases of any records that are accessible to the general
public, or are used for purposes of employment or other background checks.
- Under CAPTA, state child protective services agencies may, however,
keep information on unsubstantiated reports in their casework files to assist in future risk and
safety assessment.
- Following an investigation, states classify child abuse records in
a variety of ways, depending on the state's statutory language. Terms such as
"unfounded," "not indicated," "unconfirmed," and
"unsubstantiated" are used to describe situations where there has been no determination
of abuse or neglect. Terms such as "founded," "indicated,"
"suspected," and "substantiated" are given to a report of abuse or neglect.
Several states maintain all investigated reports of abuse and neglect in their central registries,
while other states only maintain substantiated reports.
- Several due process and protection issues arise when a state
maintains a central registry that identifies individuals accused of child abuse or neglect. Persons
whose names are listed as alleged perpetrators in a central registry have asserted that the listing
of their name in the registry deprives them of a constitutionally protected interest without due
process of law.
- Due to the nature of the interests that may be adversely affected,
most states authorize procedures whereby an individual may challenge the validity of a report and,
if successful, have the report expunged or deleted from the registry. Statutes vary as to
expungement standards and procedures. For example, the time specified for the expungement of
unfounded or undetermined reports generally ranges from immediately upon determination to 10 years.
A few states, however, do not permit unfounded reports to be placed on the registry at
all.
Child Witness, The Use of Closed-Circuit Television
Testimony
- Many states allow special courtroom procedures for child witnesses
who will be traumatized if they are required to testify in court. A common innovation is the use of
live, closed-circuit television testimony in place of in-court testimony by the child. The
particulars of closed-circuit television statutes vary greatly among the states. In some states,
the defendant, defense attorney, prosecutor, and judge are all in the room with the child and the
jury remains in the courtroom. Two-way closed-circuit television transmits the images of each room
to the other simultaneously. In some states, most of the participants, including the defendant, are
required to stay in the courtroom to watch the child's televised testimony.
- The United States Supreme Court has held that the state's
interest in protecting children from trauma can justify altering traditional methods of confronting
witnesses in court. As a result, statutes identify the degree of trauma to the child that must be
shown before closed-circuit television may be used.
Child Witness, Admitting Videotaped Depositions or
Testimony
- Many states allow special courtroom procedures for child witnesses
who will be traumatized if they are required to testify in court. One innovation is the use of
videotaped direct and cross-examination of the child in place of in-court testimony. The
particulars of videotaped testimony statutes vary among the states. In some states the testimony is
prepared before trial as a deposition while in other states the videotape is of the child's
grand jury or preliminary hearing testimony. If the tape is in the form of a deposition, statutes
specify who may be present when the videotape is made.
- The United States Supreme Court has held that the state's
interest in protecting children from trauma can justify altering traditional methods of confronting
witnesses in court. As a result, statutes identify the degree of trauma to the child that must be
shown before videotaped testimony may be used. This also has lead to many arguments specific to
violation of civil rights in that, in most cases, the defendant does have the constitutional right
to confront their accuser.
Child Witness, Admitting Videotaped Interviews or
Statements
- Several states have enacted laws allowing the introduction of
videotaped pre-trial interviews of child witnesses under certain circumstances. These statutes are
closely related to child hearsay statutes and raise many of the same constitutional issues. In
general, these statutes either require the child to be available to testify subject to
cross-examination, or require a showing of trustworthiness of the statements if the child is not
available to testify.
Child Witness, Child Hearsay
Exceptions
- Out-of-court statements made by child victims often do not fall
within one of the traditional hearsay exceptions. As a result, state legislatures have enacted
special exceptions to admit a child's statement so long as the trustworthiness of the
statements can be established. Most states also require either that the child testify at the
proceeding or be unavailable to testify before the statement is admitted. Because constitutional
issues are raised by these statutes, carefully research case law citations specific to your
jurisdiction. Many of these issues have been successfully challenged and kept from a
jury.
Competency of Child Witnesses to
Testify
- Many states have adopted the approach of Federal Rule of Evidence
601, presuming the competence of all witnesses, including children. Other states have enacted
provisions specifying that children are presumed competent to testify.
Child Witness, Support Persons in Criminal
Proceedings
- Because testifying in court can be a frightening experience for
child witnesses, many state legislatures have authorized the appointment of special support persons
to help the child through the process. In some states attorneys must be appointed to represent
child victims of abuse or neglect. States also allow appointment of non-attorney support persons to
provide emotional support to the child while testifying or to independently represent the
child's interests to the court. This is normally a "victim" advocate, employed by the
prosecutor's office or local department of human services.
Special Statutes of Limitations for Offenses Against
Children
- Recognizing the delay in reporting that often accompanies child
abuse crimes, many states have extended their statutes of limitation for crimes committed against
children. Some of these statutes allow prosecution until the alleged victim reaches a specified
adult age. For example, Indiana Code Ann.35-41-4-2(c), Michie 1998, allowing prosecution until the
adult victim reaches the age of 31. Other states simply add five years or more to existing statutes
of limitation for cases of child abuse. Colorado Revised Statute. Ann, 16-5-401(6) & (7), 1998,
extending statute of limitation an additional seven years. Although the prosecution of long-delayed
cases is rare and difficult, extended statutes of limitation leave open the possibility of
prosecuting these secret crimes.
Special Procedures in Criminal Child Abuse
Cases
-
Many states have passed legislation to assist children through the
court process. These innovations include:
- Allowing the judge to close the courtroom during a child
victim's testimony. The purpose of these statutes is to reduce a child's fear of
testifying and protect the child from the embarrassment of talking about their
victimization.
- Allowing leading questions to be asked of child witnesses.
Although trial courts have the inherent authority to allow leading questions of witnesses on
direct examination, a few states grant this authority by statutes addressing child
witnesses.
- Allowing the use of anatomical dolls in child abuse trials. A
few states have specified that courts may allow use of anatomically correct dolls to aid in a
child's testimony, even though the overall scientific community believes that the use of
these dolls is leading and suggestive and not recommended.
- Limiting the length of a child's testimony. While trial
courts have the inherent authority to control their courtroom, some states direct judges to be
sensitive to the time of day and length of time a child testifies.
- Limiting the number of interviews or interviewers during
investigation. A few states attempt to reduce repeated pre-trial interviews of child victims by
statute.
- Requiring cases involving child witnesses to be given
precedence in the criminal docket.
- Many of these special procedures can be implemented without
special statutes as they are matters within the trial court's inherent authority, but a
careful record should be maintained for appeal.
Sexual Offense Crimes
-
Statutes addressing sexual activity between adults and children vary
greatly in their wording, but all states prohibit acts between adults and children that involve
sexual penetration or sexual contact. Some states prohibit all sexual activity with broadly
written statutes prohibiting "lewd and lascivious acts," while many other states
specify different levels of severity for different conduct. Sexual penetration offenses are
accompanied by uniformly more severe penalties than sexual contact offenses. Only those offenses
involving some form of physical contact between an adult and a child are included in this
collection. Researching the statute is vital because many indictments have been dismissed
strictly on the grounds that they did not cover the issue for which the accused was being
charged, or identified the charges improperly.
For additional Information
Specific to an Attorney's Expertise
Visit Each of The Following Links
Your Attorney
Attorney Issues
Defending the Falsely Accused at
Trial
Defense Motions
Remember, your life and future are in that
attorney's hands. A mistake could easily put you in prison for years.
You have accessed one of the many pages here at the
Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist
our clients who have been falsely accused, see Our Expertise, We Can Help. If you have been
falsely accused, see What to Do - What Not to Do When Falsely Accused.
|
