Basic Laws Specific to
False Allegations of Abuse Cases
Allen Cowling
Cowling Investigations, Inc.
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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
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
Sexual Offense Crimes
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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
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