By Criminal Defense Lawyer Jeremy Rosenthal
It’s hard to think of a greater injustice than to have someone falsely accused or convicted of sexual assault of a child.
Why the Potential for Injustice is So Great in Cases with Child Accusers
We are programmed as humans to protect children. There is something wrong with you if it’s not your first instinct when you sense a child is in danger.
But it’s also the key dynamic which creates an environment where injustice is possible.
There are countless factors which make these cases hard. Trying to quantify some of the main ones are (1) the highly emotional nature of the subject matter; (2) the highly complex and intricate issues of child psychology and what might cause children to make false claims; (3) knowing and understanding the child’s environment to include other factors, people, or situations which could be causing the child stress or pressuring children in ways difficult to understand; (4) the relative lack any objective evidence proving or disproving allegations than we might see in non-sex cases; (5) the difficulty jurors have in saying “no” to the prosecution; and (6) the child advocates presentation to the jury is calculated to convict the accused, not just the guilty.
And those are only some of the factors.
The Emotional and Stigmatizing Nature of the Allegation
Charges of sexual abuse against children are emotionally and stigmatizing. The specific details of sex abuse cases cause the investigators, the prosecutors, the judges, jurors and even defense lawyers to wince. The gut reaction when learning details of any accusation is justifiably disgust. The problem is many people just can’t get past the “yuck” factor of the allegation itself. This is to say there is a presumption of guilt in these cases, not innocence.
Proving Guilt is Can Be Hard – Proving Innocence is Harder
Many sexual abuse cases involving children lack any type of physical evidence whatsoever. You would have pictures, lab reports, and spacial diagrams showing you within centimeters the dimensions of a bullet wound were this a case about a shooting. In a shoplifting case you’d have a video. In a DWI case, you’d have blood evidence much of the time and you could see the driving and field sobriety tests on camera.
Child sexual assault allegations, though, often hinge on years old memories of children which can be imperfect to begin with. An example could be a delayed outcry from years or even decades before. Courts recognize a child’s memory won’t be perfect as to locations or even years.
“I remember one night he came into my room when I was 10, 11 or 12…”
But where does that put the accused? It makes defenses such as alibis or considering witnesses to specific events practically impossible.
Physical evidence of sexual abuse such as DNA or possibly injuries are rare too. This leaves both the prosecution and the defense trying to explain their theory of the case in a relative vacuum filled imperfect and antiquated accounts and grasping for the smallest corroborating details.
Jurors have a Hard Time Saying “No.”
Sexual abuse of children sickens us. No one anywhere wants to condone it nor do they want to appear “soft” to others. The problem is people or jurors may silently agree the injustice is great — but they are also internally afraid to acknowledge the possibility of convicting an innocent person.
A critical role for the defense lawyer is giving the jurors “permission” to speak up by and through their own zealous advocacy.
Bolstering by Prosecutors, Investigators, and Children’s Advocacy Groups
Prosecutors often know their cases are as normally only as strong as the child’s story.
Investigators, CPS workers, and other law enforcement are highly trained and polished in the courtroom when they testify. Their main job is to sell the child’s story as if they were human truth detectors once they decide to push a case forward.
We know polygraphs are inadmissible because they’re not scientifically reliable — and we also know humans are worse than polygraphs when determining when someone isn’t being truthful. This is known as “bolstering” in a courtroom. Bolstering is an objectionable practice yet courts increasingly allow it in child molestation cases.
I ask potential jurors during jury selection how cases like this should be decided… by all of the professionals at the children’s advocacy center behind closed doors at a conference table? Or in a court of law? The jurors quickly get the point the only fair way to determine someone’s guilt is at a trial. Jurors quickly see the team at the Children’s Advocacy Center only think they have all the answers. And this is what makes them hard to beat in a courtroom.
The Harder We Work, the Luckier We Get
Defending sexual assault of a child allegations is often simply about working as hard as we can. The challenges come from every angle and it takes lots of skill and resolve.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.