The steep rise in social media users over the last decade and a half, and the inclination of news sources towards sensationalist reporting has child sex crimes on the forefront of the public consciousness; ostensibly, there’s a child predator lurking around every corner. What these types of reports often fail to convey is that these kinds of cases rarely involve a stranger in a trench coat stalking the streets at night. In fact, the alleged perpetrator is usually a family friend, relative, father, step-father, teacher, counselor, etcetera. The closer the relationship between the alleged victim and the accused, the more complex the case becomes; in other words, a pre-existing relationship between those involved in the case invites a greater likelihood of ulterior motives on the part of the accuser. In Nashville, for instance, there was a case in which a child made assault allegations against the father as a means to change the terms of the custody arrangement, and live with her mother. The mother, in turn, would see her child support increase tenfold. In another instance, a woman could find themselves battling these kinds of allegations because a teenage boy wanted to brag about being with someone older. Somewhere in the mix of all the readily available, sensationalist reports, those nuances get lost, and the accused– even the falsely accused– often find themselves in an uphill battle, legally, and in the public eye. Whatever public opinion might maintain, false accusations happen.
Sexual assault allegations are some of the hardest to defend. In cases such as drug trafficking, theft, or white collar cases, juries typically demand and expect evidence that corroborates the accuser’s testimony. While news and social media certainly sensationalize these types of cases as well, the nuances can typically reach the jury much more easily compared than that of sexual assault cases. In those instances, it often comes down to a matter of image, despite what evidence is or isn’t corroborated. The sole testimony of one child, even when unsubstantiated, can land someone life in prison. This is exacerbated by police and social workers who often enter their field armed with the predisposition and self-image of being an advocate for the victim instead of unbiased investigators. This attitude reaches juries as well, who likely want to view themselves as champions of child victims, and not risk even the smallest possibility of letting a guilty person go, and ruining that image. The nature of these cases invites these sorts of attitudes, sometimes to the detriment of justice for the falsely accused.
Because of the aforementioned reasons, it’s understandable that the accused feel hopeless in fighting these types of charges, and defense strategies may not be completely evident. We, however, have assembled a short list of strategies and practices to help navigate one’s defense in these uphill battles.
1. Get a defense attorney involved immediately in order to investigate.
It should be no surprise the criminal justice system does not like to admit when it has made a mistake. For that reason, it is far easier to prevent the charges from being formally filed in the first place than it is to have the charges be dismissed once they are already levied against the defendant. Although, as previously stated, investigators and social workers might come into a situation with a natural, inherent bias, this bias is typically unconscious and not formed through forethought or malice: they are not out to get innocent people. While they are likely not looking for exculpatory evidence, they can adopt new attitudes once a defense attorney presents them with new evidence. Presenting investigators with favorable evidence by way of a preliminary, or even pre-file investigation, is absolutely a prudent step in having charges dropped. Consider also how often a child might relay the same story once they have told it to counselors, psychiatrists, a trusted adult, or any police or pertinent investigator: a story, once told and retold, can begin to be collectively considered as fact, making it harder to reach the truth. It puts the defendant in a position of trying to undo an accepted truth, instead of having the facts speak for themselves. Having an attorney involved as early as possible can mitigate this. While it is not always possible for a defense attorney to have access to the accuser, instances where that access is permitted can be considerably favorable to the client. In one example of this, again in Nashville, a ten year old claimed she saw the defendant– in this case, her stepfather– “French kissing” her sister. The defendant’s attorney, upon interviewing the ten year old, found that she couldn’t even describe what French kissing was. The obvious question arose: why use the term French kissing at all, if she did not know what it meant? The investigation later concluded that the girl’s biological father had coached her to use certain phrases, as a means to gain full custody of the child. Oftentimes, a jury will convict a client under the pretense that a child couldn’t know and use certain terms unless violently exposed to them. The fact of the matter is, with information more readily available at a younger and younger age– combined with adults using children for their own motives, coaching them in sexual terms and phrases– examples like the aforementioned ten year old are probably more common than we’re led to believe.
There are other means of fending off potential charges before they are formally levied, even some considered somewhat unorthodox. In a large majority of cases, a client should probably decline a lie detector test. Common and completely understandable factors such as fear and nervousness can cause a client to fail such a test. Despite the accepted consensus that lie detector tests are unreliable, and therefore inadmissible as evidence in court, investigators often use the results of a failed test to confirm their bias, making formal charges all the more difficult to prevent. On the other hand, a client’s understandable and prudent reluctance or outright refusal of a test can be– in an investigator’s mind– construed as a likelihood of guilt. It’s a catch twenty-two. However, in certain cases, when a client has proven that they can perform a dry run of the test without the impediment of nervousness affecting the results, a defense lawyer might agree to a polygraph test. Passing a lie-detector test isn’t a silver bullet, but it can break down the biases held by investigators, and open their minds to the possibility that the client is innocent. Again, while the results are inadmissible in court, in a preliminary investigative setting, it can be effective in bolstering what favorable evidence is already there.
Another powerful tool, though still inadmissible in court, is a psychosexual exam which is used to delineate the client’s psychological makeup, and determine whether or not said client has traits which fit the profile of someone likely commit a sex crime against a child. If a person does not fit that particular psychological profile, the result of that test, combined with a favorable polygraph test can be used in tandem as a powerful tool to reshape the investigators biases, and decrease the likelihood of having charges dropped.
2. Determination of and presentation of the child’s motive to make a false allegation of sexual abuse are essential.
It is absolutely paramount that a motive for a false allegation be discovered, and to have that motive– be it from the child themselves, or some influencing adult– be presented to the pertinent investigators or jury. Juries don’t like to believe that a child could lie, so lessening the credibility of the accuser by suggesting motive is one of the best ways to circumnavigate that bias. As previously stated, these motives could range from a child’s own desire to live with one parent over the other, bragging rights, or one parent gaining leverage and assured compliance over another in a custody battle. A child can be coached to say anything, especially when another adult has something at stake. Even when an ulterior motive is not readily apparent, it’s best to develop working theories as early as possible. Again, it's a matter of breaking down the story against the client, which has probably been told and retold countless times, and lessening the credibility of the person (or persons) telling it.
Sometimes there is no conscious or intentional motive at all. An obsessive or hysterical parent might ask the child repeatedly if they had been touched, following certain situations, such as staying over at a grandparent’s or family friend. In these situations, it’s easy to trace the logic that a child might believe that the parent wants to be told that they have been touched. Unable to distinguish fantasy from reality, an impressionable young mind might create a false memory to shape the narrative of what they think a particular adult wants to hear. While a jury, again, is predisposed to believe a child couldn’t possibly lie about sexual scenarios, the influence of other adults, intentional or otherwise, presents to the jury the simple fact that the malleability of a young mind can simply cause confusion in these circumstances.
3. Demonstrating the basis of the child’s knowledge of sexual terms, situations, and acts is very important.
Juries will believe a child’s word that they have been victim of a sex crime under the premise that said child couldn’t otherwise have knowledge on such things. It’s important, in these cases, to prove that a child’s basis of knowledge is sourced from somewhere besides the alleged abuse. An investigation should therefore demonstrate the child’s access to television, pornography and other media, as well as delineate the child’s dating behaviors, relationships with other adult peers, and sexual education curriculum.
4. Use civil custody proceedings to gain information and to assess the State’s case.
When the accused is a parent, step-parent, a guardian in some capacity, as is so often the case in sex crime allegations, the State will file civil proceedings to obtain a court order as a means to dictate that the accused to stay away from the alleged victim. It’s understandable that the accused may wish to forgo challenging this process; they are already overwhelmed at the sex crime charges brought against them, and challenging these proceedings probably doesn’t seem like the biggest priority. However, going through with the proceedings is a viable strategy, even if the outcome probably won’t end favorably for the accused. In most States, the accused has limited access– if any at all– to witness statements and depositions. Securing a defense attorney’s access to a child to gather more information is improbable at best. For these reasons, the defense might go into a trial with little-to-no knowledge of what might be used against their case, or even knowing what the client is specifically being accused of, other than simply the general charge. Civil discovery– meaning the formal process of exchanging information as to which witness, and what evidence will be used at trial, between both sides– typically covers more ground than discovery proceedings in a criminal case. In other words, engagement with the civil court process can be used as a preliminary fact finding mission to figure out what the prosecution has against a client. Not only will a defense have a better idea of what to prepare for, but may find inconsistencies in witness statements between the civil and criminal case, lessening the credibility of those witnesses.
5. Words Matter
Amidst the legal jargon inherent to court proceedings, and conversational shorthand used by attorneys, oftentimes the humanity of the individuals gets lost in all the noise. Those involved become “victim” and “defendant”. The vernacular used already puts credibility towards the former, and places guilt on the latter, on top of being mentioned with depersonalized indifference. Your defense attorney should always humanize you by addressing you by name in court proceedings, and if they are any good, this will come habitually to them. Remind the jury that a real person’s life is at stake. Do not under any circumstance address the accuser as the “victim” or even “alleged victim;” don’t offer up that kind of credibility. Even though the term “victim” suits the everyday legal shorthand fine, repeated often enough, the jury might get the message that the child is, in fact, just that. Instead, address them for what they are: “the accuser.”
Remember how we previously stated that a jury is predisposed to believe a child. Prosecutors play into this. A favorite tactic is to bluntly ask the defendant if the child is lying. Unless the defense is built on the premise that the child is very young and has built a false memory, or is receiving instructions from another adult as to what to say without understanding it themselves, the defendant should be prepared to simply say “yes.” Naturally, calling a child a liar seems impolite, even wrong. The prosecution will rely on that discomfort. But it is your life that is on the line. Like the rest of us, children are fallible beings, capable of lying, and equally capable of dramatically altering someone’s life for the worse, intentionally or otherwise. To a jury, if the child isn’t lying, then they must be telling the truth.
6. Have a strategy for the forensic interview.
A “forensic interview” is the process in which a trained professional, usually a social worker, will interview the child in order to attain as factual and reliable information as possible. This interview is typically recorded. However, there are issues inherent in this process. Recall, as previously stated, how social workers enter this kind of field with their own objectives fed by personal biases, whether they be conscious or unconscious. This no doubt has some effect on what kind of questions will be posed, and even in what order. Children, remember, through no fault of their own, will often try to tell an adult what they think they want to hear, especially if they’ve had the same question posed to them over and over. A key strategy surrounding the interview, is to remind the jury that the process is an exchange between two fallible humans, and delineate further for the jury which questions were leading the interviewee, what manipulative tactics were used, and state the objectives and biases behind the questions posed. Sometimes the interviewer will dismiss responses, which could be favorable to the defendant, as negative, and dismiss it out of hand, or reframe the question for the child. A child will pick up on this and adapt to what they think the adult wants to hear. In most cases, the defense will be allowed to see the recording before it reaches court, and given the opportunity to challenge the merit and conduct of the interview once it is presented. It would seem, at first, that giving your attorney the opportunity to poke holes in the interview– and outline for the jury how it had been improperly conducted– would be beneficial to your case. And if the recording does eventually reach court, this is a likely course of action. However, having the interview played at all is essentially giving the accuser a second testimony. A lie, once repeated, is often believed. Unless the interview is shown to be so bewilderingly and obviously inconsistent that it couldn’t help but support the defense, it’s best to challenge its use before it reaches court.
7. Your attorney should pay close attention to several special evidence rules.
In most jurisdictions, there are certain rules and provisions that govern what kind of evidence is admissible in court. In the instances of sex crimes, these provisions usually dictate that information on the accuser’s sexual history, and character, are inadmissible. This is referred to as the rape shield law (also referred to as Evidence 412). Sometimes, certain jurisdictions allow for some exception to that rule. Because those exceptions are granted on a relatively rare basis, however, your attorney might not be as familiar with using those provisions, once granted. In sex crime cases, which are so often encumbered with biases in favor of the accuser, it is important that the character and reliability of the accuser also be brought to light. For example, if an accuser has knowledge of sexual acts not typical of someone their age, those rape shield law exceptions could bring to light that the accuser has been sexually active, in order to explain that knowledge.
8. Selecting the Jury
In sex crime cases such as these, the defendant will have the right to a trial by jury. The importance of the jury selection process cannot be overstated. While it is possible to lose a case after doing well in a jury selection, either from strategic errors or some other unforeseen variable, it is almost impossible to win a case after doing poorly in a jury selection. An attorney must keep a few things in mind, when engaged with the jury selection process, not the least of which is people’s inherent bias such as the natural repulsion towards the idea of sexual acts with a child, the inherent desire to protect a child, even superseding the desire to protect an innocent person, and the strong bias, as previously stated, towards believing a child over an adult. Unfortunately, in most circumstances around these cases, the defendant does not have the presumption of innocence in most people’s eyes. For these reasons, your attorney might pose questions to jury candidates such as the following:
“Do you feel that children have a natural inclination towards telling the truth, more so than adults?”
“Can you think of any reason why a child might levy a false allegation against an adult?”
While the aforementioned examples aren’t exactly a silver bullet in getting an unbiased, open-minded jury, it at least gets the jury selection process oriented in the right direction.
9 .Prepare the accused to testify.
Often it is the case that there is little evidence to corroborate the testimony of the accuser, and still just as little evidence to corroborate that of the accused. Practically speaking, it’s a matter of “he said– she said”. Given the inherent bias to believe a child, it is paramount that the accused also take the stand. This is an opportunity to humanize the accused. Remind the jury that there is a face to the name, and a life at stake. There is room for the accused to demonstrate nervousness, anger, confusion, to stumble over their words, or display any kind of human emotion that gives them a sense of earnestness in the eyes of the jury. As is often the case in trials, it’s not what the truth is, but how you present it. The accused should have a solid understanding of what will be asked when they have taken the stand, and how they will be cross examined. Practice sessions are critically important. Be wary of over-preparing, and appearing as though the accused has been coached in what they’re saying, and allow for the human element to come through.
10. Use of experts
It is typical of a criminal trial that only witnesses be given the opportunity to present their opinion as to the alleged incidents– what they saw, heard, or how they acted during the events in question. An expert may be brought in, however, to offer what they know as it pertains to the case. An example of this might be telling the jury on whether or not an injury sustained by the accuser is consistent with sexual assault wounds. Another example could have the expert witness offering their findings as to a specific bloodstain, semen, or some other piece of physical, forensic evidence found at the scene. In sex crime cases, there are typical two instances which most merit the use of an expert witness. Firstly, an expert might review or testify as to whether any scarring or tearing of the anus or vaginal wall exists, and whether those scars are consistent with sexual abuse. It is important for a jury to know whether or not such scarring could have been sustained through a consensual sexual act with someone other than the accused, or through some other accidental means. While rare, straddling injuries can be sustained through activities such as bike riding, and gymnastics. Secondly, an expert might testify as to whether or not the forensic interview was conducted adequately, with no leading or suggestive questions being posed to the child. In these instances, it might be helpful for the expert witness to help the jury see the subtle ways in which the interviewer was leading the interviewee towards a specific, favorable, answer.
Be cautious of choosing to forgo consulting with a defense expert, when the findings of the State’s expert witness are not necessarily in dispute. Though their findings might seem obvious at first, these types of expert witnesses change their opinion all the time, and might explain away inconsistencies in their statements with technobabble and jargon that will go over most jurors' heads. However obvious an expert’s finding might be, those inconsistencies, once exposed, can be invaluable to a defense.
11. The attorney must display a belief in his client.
Whatever strategies and evidence are implemented in a trial, passion and sincerity are what truly move a jury towards one verdict or another. In these types of cases, the defendant will have all sorts of emotions and insults levied at them, from disgust, anger, resentment. At some point, someone will probably say how the defendant irreparably stole the child’s innocence, before their guilt is even verified. The presumption of innocence until proven guilty doesn’t exist in the minds of the jury, in cases like these. It’s an uphill battle. Bearing all that in mind, the accused’s attorney should be unwavering in their loyalty to their client. The faith the defense attorney has for their client needs to match, even exceed when possible, the level of negative emotions and irrational thought inherent in trials like these. And that faith needs to be on display. Every day at trial should be seen as an opportunity for the accused to build trust with the jury, and regain their humanity.
Child sex abuse cases are some of the hardest to defend, carrying a conviction upon sentencing oftentimes harsher than that of even homicide cases. And those incredibly high stakes can hinge simply on the uncorroborated statements of a single child. Anyone accused of such an offense should have access to good counsel who will employ at least a few of these strategies.
