Sexual Abuse Prosecutions Research Articles

Due Process and the Admission of Expert Evidence on Recovered Memory in Historic Child Sexual Abuse Cases: Lessons from America

This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.

The Role of Alcohol and Victim Sexual Interest in Spanish Students’ Perceptions of Sexual Assault

Two studies investigated the effects of information related to rape myths on Spanish college students' perceptions of sexual assault. In Study 1, 92 participants read a vignette about a nonconsensual sexual encounter and rated whether it was a sexual assault and how much the woman was to blame. In the scenario, the man either used physical force or offered alcohol to the woman to overcome her resistance. Rape myth acceptance (RMA) was measured as an individual difference variable. Participants were more convinced that the incident was a sexual assault and blamed the woman less when the man had used force rather than offering her alcohol. In Study 2, 164 college students read a scenario in which the woman rejected a man's sexual advances after having either accepted or turned down his offer of alcohol. In addition, the woman was either portrayed as being sexually attracted to him or there was no mention of her sexual interest. Participants' RMA was again included. High RMA participants blamed the victim more than low RMA participants and were less certain that the incident was a sexual assault, especially when the victim had accepted alcohol and was described as being sexually attracted to the man. The findings are discussed in terms of their implications for the prevention and legal prosecution of sexual assault.

Predators and Propensity: The Proper Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test of Federal Rule of Evidence 403 and its state equivalents. Over the years, courts and legislators have attempted to develop analytical frameworks to be used by trial judges when evaluating the probative value of prior bad acts propensity evidence in child sexual abuse cases. Unfortunately, the framework most often applied by the courts in these cases has minimal correlation to the determination of propensity, but instead is premised upon the traditional Rule 404(b) basis of establishing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident. As a result, courts end up applying differing, and sometimes inconsistent frameworks that bear no rational relationship to one’s propensity to commit a child sexual offense. Without such a relationship, it is virtually impossible to meaningfully engage in a Rule 403 balancing test to determine the probative value of prior bad acts evidence being offered to establish propensity. This Article proposes a new analytical framework (the “403 Propensity Proposal”) to be applied by courts when evaluating the admissibility of prior bad acts evidence in child sexual abuse prosecutions that directly correlates to the issue of propensity. If such evidence is to be admissible, courts must ensure that it be directly probative of researched behavioral patterns of those who sexually victimize children. The heart of this proposal is the consideration, evaluation, and application of three methods commonly employed by those who sexually victimize children. The 403 Propensity Proposal applies these three methods — trust, authority, and instrumental force/threats as factors in establishing a rational and consistent analysis for evaluating the probative weight of such propensity evidence. This Article culminates with the application of the 403 Propensity Proposal to a fictional case study involving a child sexual abuse prosecution where the prosecutor seeks to introduce the testimonies of three witnesses who allege prior sexual abuse by the defendant. The case study application demonstrates that the proposed propensity factors will better ensure that prosecutions for these types of crimes are based upon relevant and probative evidence that directly relates to one’s propensity to sexually victimize children. Both defendants and complainants are entitled to nothing less.

Using Ecological Theory to Evaluate the Effectiveness of an Indigenous Community Intervention: A Study of Sexual Assault Nurse Examiner (SANE) Programs

In recent years, there has been renewed interest among community psychologists in indigenous interventions, which are programs created by local practitioners (rather than researchers) already rooted in their communities. Indigenous interventions have strong ecological validity, but their effectiveness is often unknown because so few are rigorously evaluated. The goal of this project was to use Kelly and Trickett's ecological theory as a conceptual framework for evaluating an indigenous intervention and its mediating mechanisms of effectiveness. The focal intervention was a midwestern Sexual Assault Nurse Examiner (SANE) program, which provides post-assault medical care, crisis intervention, and medical forensic exams for sexual assault survivors. Prior studies of SANE programs have suggested that these interventions may help increase sexual assault prosecution rates. In this case example, we used a mixed methods design to determine if this program contributed to increased prosecution rates, and if so, why. Based on qualitative interviews with key stakeholders, we found substantial evidence for the Principle of Interdependence such that the SANE program strengthened the interconnections between the legal and medical systems, which contributed to increased prosecution. The intervention was effective in these outcomes because it promoted Cycling of Resources throughout the systems and fostered Adaptation of new roles for legal and medical personnel. Moving beyond this specific case example, this paper also examines cross-cutting advantages and struggles of using an ecological approach in the evaluation of indigenous community interventions.

Police Presence, Isolation, and Sexual Assault Prosecution

This article considers the effects of geographic isolation and local police presence on the processing of 239 sexual assault cases reported to the Alaska State Troopers. Geographic isolation is hypothesized to hinder case processing due to its impact on the celerity and thoroughness of investigations, whereas the presence of local police is hypothesized to facilitate case processing by legitimizing reported offenses and assisting with evidence collection. Controlling for a host of important legal and “extra legal” case characteristics, the authors find that geographic isolation and local police presence did significantly influence case processing. However, contrary to expectations, geographic isolation facilitates case processing in that sexual assault cases from isolated locations are actually more likely to be referred for prosecution. As expected, local police presence facilitates case processing by enhancing the likelihood that referred cases would be accepted for prosecution. Implications for rural policing are discussed.

Criminalizing Spousal Rape: The Diffusion of Legal Reforms

While efforts to criminalize spousal rape began in the 1970s, by 2002 only twenty-three states had adopted laws that allow for the full prosecution of sexual assault by a spouse. The authors present the first analysis of martial rape law reform to incorporate insights from research on diffusion. The authors find that states are more likely to criminalize spousal rape when women in the state have more economic power. Conversely, states are less likely to criminalize spousal rape when the legislature passed previous incremental reforms or when a neighboring state already criminalized spousal rape. The authors also find that states that criminalize spousal rape under a split-party government are particularly influential in the spread of such reforms and that the processes driving early diffusion are different than the processes driving later diffusion. Overall, results suggest that understanding law reforms requires greater attention to incremental change, negative effects of spatial diffusion, and the importance of time.

Reasonable Doubt in Credibility Contests: Sexual Assault and Sexual Equality

Sexual assault prosecutions present particular challenges in making credibility determinations in ‘he said/she said’ cases. An analysis of Canadian law illustrates how attempts to avoid the ‘either/or’ error can be vulnerable to a critique that the understanding of reasonable doubt in such cases is inconsistent with sex equality. The possible ways in which accused persons may be given the benefit of a less than reasonable doubt, and the resulting implications for both sex equality and judicial impartiality, are discussed in this article. A return to basic principles is suggested.

Predicting Sexual Assault Prosecution Outcomes

Sexual assault prosecution is often influenced by extralegal factors, such as victims' age, race, and prior relationship to the assailant. The importance of evidentiary characteristics remains unclear. Prior studies suggest that victim credibility may be a central concern to law enforcement and prosecutors. However, many communities have implemented interventions to improve the accessibility and quality of medical forensic exams for sexual assault victims. One such intervention, a sexual assault nurse examiner program, was the focus of the current study. The authors examined what factors predicted adult sexual assault case investigation and prosecution in a large Midwestern county with such a program. They compared the predictive utility of victim characteristics, assault characteristics, and forensic medical evidence in explaining case outcomes. Medical forensic evidence collected by the sexual assault nurse examiner program accounted for significant unique variance in case outcomes, above and beyond victim and assault factors.

The Sexual Assault Nurse Examiner and the Successful Sexual Assault Prosecution

In recent years, specialized nursing skills have proliferated. On the leading edge of this phenomenon are sexual assault nurse examiners (SANEs). This article, and its supporting research, examines the relationship between the SANE, the prosecutor's office, and the disposition of sexual assault cases in Texas. All prosecutors in this highly populous state were surveyed regarding their perceptions of the contributions of SANEs to the criminal justice process. Sexual assault cases present at each stage of prosecution unique obstacles to conviction, as thoroughly explored in other publications. The gauntlet of trial is intimidating to many, if not all, of the victims of this offense. Attempts to protect the victim from unnecessary and irrelevant personal attacks have been somewhat successful. SANEs, invariably volunteers with specialized forensic training, provide professional evidence collection and continuity of support for victims and are a pragmatic innovation in criminal justice. In this article, their role is examined through the lens of the prosecutors, the criminal justice officials most significant and influential in determining the ultimate resolution of complaints filed by victims of crime. The officials polled expressed great confidence in the abilities, commitment, and overall contribution of SANEs at each phase of the process, including trial. The progress and impact of this forensic specialization in gaining judicial recognition as an expert witness is also examined.

The contribution of children's advocacy centers to felony prosecutions of child sexual abuse

Objective To describe trends of felony sexual abuse prosecutions between 1992 and 2002 for two districts of a large urban city that differed primarily in their use of children's advocacy centers (CACs) for sexual abuse evaluations in children. Methods Aggregate data for two districts of a large urban city were provided from 1992 to 2002 from the district attorney's office, child protective services (CPS) agency, and all CACs serving both districts. Summary statistics were calculated over time and compared between both districts for ecologic trends using negative binomial regression. Results Over the time period of the study, substantiated reports of child sexual abuse declined: District 1 experienced a 59% decrease in the incidence of reports, while District 2 experienced a 49% decrease in the incidence of reports. Despite this decrease, felony prosecutions of child sexual abuse increased in District 1 (from 56.6 to 93.0 prosecutions/100,000 children, rate ratio 1.64, 95% CI 1.38–1.95), but did not significantly increase in District 2 (from 58.0 to 54.9 prosecutions/100,000 children, rate ratio 0.94, 95% CI 0.73–1.23); by 2002, the rate of felony prosecutions in District 1 was 69% greater (95% CI 37–109%) than the rate in District 2. In 1992, CACs in District 1 evaluated approximately 400 children, increasing to 1,187 children by 2002. The number of children evaluated by CACs in District 2 increased modestly from nearly 800 in 1992 to 1,000 in 2002. Conclusion Felony prosecutions of child sexual abuse doubled in a district where the use of CACs nearly tripled, while no increase in felony prosecutions of child sexual abuse was found in a neighboring district, where the use of CACs remained fairly constant over time. Practice implications Though many limitations exist when bringing together ecological data from different agencies, the strength of the association we observed between increased CAC use and increased felony prosecutions, and the stepwise fashion in which it occurred should support future research to confirm our findings and to delineate which attributes of CAC performance might impact the likelihood of prosecution of child sexual abuse.

Preparing Staff for Testimony in Sexual Assault Cases

The medico-legal interface is an important element to successful team relationships in the prosecution of sexual assault. Partnerships between clinical risk managers and attorneys can ease the process for health care professionals.

The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process

In the 1980's hundreds of childcare workers were accused of sexually abusing children in horrific ways. Arnold and Jesse Friedman, whose prosecutions are chronicled in the film Capturing the Friedmans, were among those convicted and sent to prison during this period. Sociologists have called this series of prosecutions a classic moral panic: a widespread, hostile, volatile overreaction to a perceived societal threat. This paper examines the concept of moral panic in the context of the day care sexual abuse prosecutions in general, and the Friedman prosecutions in particular. It begins by exploring the role of the legal system in the construction of a moral panic, asking how a system which styles itself as rational and process oriented becomes the handmaiden of institutionalized hysteria. It then considers whether moral panic is a useful heuristic for understanding how justice was derailed in the Friedman cases and so many others, and what ought to be done to address the problem. It argues that the concept is limited in its ability to distinguish normatively between cases of overreaction and cases of institutional denial. Further, it suggests that, to the extent the concept of moral panic misconceives these periods of institutionalized hysteria as a series of isolated phenomena, it does not adequately address the deeply entrenched causes of injustice in cases like the Friedman prosecutions. The paper ultimately concludes that the concept of moral panic is useful because it reminds us of the cultural and historical contingency of notions of criminal justice and criminal deviance. Nevertheless, the concept has limitations that render it inadequate to address the hurdles to justice encountered in the Friedman cases. Most prominently, the concept is hindered by its retrospective nature. Like the question of guilt or innocence, the notion of moral panic is backward-looking, and therefore not well suited to addressing the prospective question of how the justice system can be reformed to dismantle ongoing, systemic hurdles to criminal justice. Law, Culture and the Humanities 2007; 3: 293—319

Expert Evidence of Delay in Complaint in Childhood Sexual Abuse Prosecutions

This article reviews the use of expert evidence to explain delay in complaint in prosecutions for childhood sexual abuse in Australia, New Zealand, Canada, the United States, Ireland, Scotland and England and Wales. Such expert evidence is ‘counterintuitive evidence’ designed to dispel myths, misconceptions or misunderstandings in the minds of jurors which may adversely affect their evaluation of the complainant's evidence.

Delayed Complaints in Childhood Sexual Abuse Prosecutions—A Comparative Evaluation of Admissibility Determinations and Judicial Warnings

This article reviews legal responses to delayed complaints in child sexual abuse prosecutions in Australia, Canada, the United States, Ireland, and England and Wales, focusing on recent legislative and judicial modifications to the historical common law requirement for early or recent complaint. Consideration is given to three legal mechanisms regulating the jury's access to information about delayed complaints: cross-examination of the complainant on the issue of delay, the admissibility of a late complaint for the prosecution, and judicial warnings indicating how, if at all, jurors should incorporate the fact of late complaint into their deliberations.

Gender Inequality and Criminal Seduction: Prosecuting Sexual Coercion in the Early-20th Century

This article analyzes narratives of sexual consent and coercion in 15 criminal seduction cases tried in New York City from 1903 to 1918. I explore courtroom accounts of seduction to explain how dominant notions of masculinity and femininity constrain the effectiveness of sex crime laws. Unlike men, women in the Progressive era (1900–1920) who engaged in premarital sex faced potentially significant social costs in the form of unwanted pregnancy and ostracism. These women could sometimes seek redress by bringing felony charges against men who reneged on their promises of marriage. New York's “seduction law” not only criminalized betrayal but it also functioned as a tool in the prosecution of sexual assault. Yet a patriarchal ideology of romantic courtship embedded in the statute, and defense attorney strategies that drew on this ideology, limited the law's ability to address sexual coercion.

Child Witness Policy: Law Interfacing with Social Science

Dorothy F. Marsil (*) Jean Montoya (**) David Ross (***) Louise Graham (****) I INTRODUCTION The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. (1) Among the innovations were: placing a screen between child witnesses and the defendant during children's testimony; (2) transmitting children's testimony into the courtroom by closed-circuit television; (3) and admitting children's otherwise inadmissible hearsay, (4) including children's videotaped interviews. (5) These innovations spawned a fair amount of appellate litigation regarding their constitutionality . Much of the litigation focused on whether a given innovation violated the Confrontation Clause, (6) but questions about due process arose as well. Court decisions regarding the constitutionality of child witness innovations rest on a number of assumptions that are subject to empirical testing. This article examines many of these assumptions and evaluates whether they are supported by social science evidence. Part II of the article examines the use of shielding procedures in child sexual abuse prosecutions. It begins by exploring the Supreme Court's analysis of state laws providing protection by shielding the child witness from the defendant. Next, it explores various questions: Do child witnesses need protection from confrontational stress? Does shielding prejudice the defendant? Does it impact juror perception of the proceedings' fairness? Does shielding impact juror perception of the child witness? How reliable is children's shielded testimony? Does shielding impair juror ability to detect deception in the child witness? Part III examines the use of hearsay testimony in child sexual abuse prosecutions. As with Part II, it begins by painting a picture of the legal landscape. Specifically, it considers the evidentiary and constitutional implications of using hearsay when children are witnesses. Part III then addresses various questions: Does admitting hearsay testimony protect the child witness? Does admitting hearsay testimony prejudice the defendant? How reliable is hearsay testimony offered in trials involving child witnesses? How accurate are the hearsay witnesses? Are they able to reconstruct details of their out-of-court exchange with the child witness? Does the eyewitness report deteriorate as it is transmitted down the hearsay chain from the child to the hearsay witness? Part IV concludes the article. It highlights the insights gained from the interface of law and social science and makes suggestions for legal practice and future social science research. II CHILDREN'S SHIELDED TESTIMONY Using shielding procedures is distinct from admitting hearsay statements. With shielding procedures, the child's view of the defendant is obstructed during the child's testimony at trial. When a screen is used, the child testifies from behind a screen placed between the child and the defendant. When one-way closed-circuit television is used, the child testifies from a separate testimonial room, and the child's testimony is transmitted into the courtroom where the defendant, jury, and judge are able to view the testimony. (7) In either case, the child witness testifies under oath and is subject to cross-examination. In contrast, when hearsay is admitted in lieu of the child's testimony, not only does the child avoid physical confrontation with the defendant, but the child witness is also not subject to cross-examination, because the prosecution relies on the testimony of a hearsay witness who reports the child's out-of-court statements. …

The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases

Robert P. Mosteller (*) I Introduction The purpose of this symposium is to examine the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century and, from that experience, to draw lessons. In this essay, I examine what we have learned about the hearsay exception for for purposes of diagnosis or (1) Earlier, I studied this exception as applied in child sexual abuse prosecutions and found being stretched beyond the bounds of its theoretical justification. (2) In this essay, I reexamine our national experience with the exception over the past decade and find both a maturation of the exception and at least a partial disintegration. Briefly, the hearsay exception admits statements made by a person for the purpose of either receiving treatment or allowing a doctor to diagnose without any expectation of treatment. (3) The statements may concern the individual's present symptoms, history, or the general character of the condition or injury that prompted the visit. To be admissible, the statements must be reasonably pertinent to diagnosis or treatment, apparently from the perspective of either the declarant or the expert. Although central to the no definition of the term is provided in the rule itself or in the accompanying commentary. Finally, the availability or unavailability of the person who made the statement is irrelevant to admissibility. The exception is applied in a relatively straightforward and uncontroversial manner in typical civil cases involving accidents, injuries, sickness, and treatment. Its use is far more debatable as applied in child sexual abuse cases when one of the key issues is whether a child's statements describing sexual abuse, particularly statements identifying the abuser, are admissible. To illustrate how the use of the exception can, in my judgment, be very troubling, consider the following hypothetical case: A four-year-old female child, in the care of a single mother and her current live-in boyfriend, is found by social workers to be malnourished and poorly clothed. She is also apparently emotionally withdrawn. A physical examination reveals irritation in the genital area that is suggestive of sexual abuse several days earlier, but could also be fully explained in other ways. When asked by the examining pediatrician about her genital area, the child responds with very little information and the best that can be determined is that it hurt. Because of the conditions of her care, the child is temporarily taken from her mother's custody. While in emergency care, the child is interviewed several times by social workers trying to determine whether sexual abuse occurred. She provides no additional information that would suggest sexual abuse. The interviews are not recorded. Investigators continue to suspect abuse because of an unproven but reported incident of sexual abuse of a child two years earlier by Buddy, the mother's live-in boyfriend. The child is sent to a pediatrician who works regularly with the Department of Social Services in detecting and treating sexual abuse. The doctor is briefed on all the information in the case and the suspicions regarding Buddy. He conducts no physical exam, because the symptoms are no longer present. Without any witness present or any recording made, and with very few notes, the doctor interviews the child. He reports that the child told him that hurt her bottom with his pee pee, writing this quotation in his notes. The child never repeats a statement of this sort in later interviews. Buddy is charged with child sexual abuse. The child is not called as a witness by the state; she is found incompetent to testify because she does not understand the oath. The trial judge rejects the defense's objection based on hearsay and Confrontation Clause grounds, and allows the pediatrician to testify to the child's statement to him under the medical examination exception, the doctor explaining that the inquiry was pertinent to the child's placement in foster care, away from Buddy. …

Child sexual abuse: a case study in community collaboration

Objective: This is an exploratory study that describes the process and outcomes of a Midwestern US community’s approach to case management of child sexual abuse. Method: Data were abstracted from 323 criminal court files. Specific information gathered included child and suspect demographic data, law enforcement and CPS involvement, child disclosure patterns and caretaker responses, offender confession, offender plea, trial and child testimony information, and sentences received by offenders. Both case process and outcome variables were examined. Results: In this community, criminal court records reflect a sex offense confession rate of 64% and a sex offense plea rate of 70%. Only 15 cases went to trial and in six the offender was convicted. Conclusion: Communities can achieve successful outcomes when criminal prosecution of sexual abuse is sought, but the child’s testimony is not necessarily the centerpiece of a successful case. In this study, desired outcomes were a consequence of the collaborative efforts of law enforcement, CPS, and the prosecutor’s office, which resulted in a high confession and plea rate.

Child Hearsay Statutes: At Once Over-Inclusive and Under-Inclusive

Special child hearsay statutes allow for the admissibility of demonstrably reliable but otherwise inadmissible children's hearsay. These statutes were one among other child witness innovations that proliferated in the 1980's and 1990's to redress the proof problems that arise in child sexual abuse prosecutions. In this Article, Professor Montoya argues that the special child hearsay statutes are at once over-inclusive and under-inclusive. She argues that these statutes are over-inclusive in that child sexual abuse prosecutions typically include the testimony of the child witness and multiple hearsay witnesses. She argues that these statutes are under-inclusive in that they allow for the admissibility of children's hearsay in child abuse cases but may require the child declarant to be the child victim, excluding the hearsay statements of other child witnesses, and typically do not apply to the hearsay statements of children who witness crimes other than child abuse, like domestic violence. Accordingly, she proposes reforms to remedy these deficiencies in the special child hearsay statutes.

Child hearsay statutes: At once over-inclusive and under-inclusive.

Special child hearsay statutes allow for the admissibility of demonstrably reliable but otherwise inadmissible children's hearsay. These statutes were one among other child witness innovations that proliferated in the 1980's and 1990's to redress the proof problems that arise in child sexual abuse prosecutions. In this Article, Professor Montoya argues that the special child hearsay statutes are at once over-inclusive and under-inclusive. She argues that these statutes are over-inclusive in that child sexual abuse prosecutions typically include the testimony of the child witness and multiple hearsay witnesses. She argues that these statutes are under-inclusive in that they allow for the admissibility of children's hearsay in child abuse cases but may require the child declarant to be the child victim, excluding the hearsay statements of other child witnesses, and typically do not apply to the hearsay statements of children who witness crimes other than child abuse, like domestic violence. Accordingly, she proposes reforms to remedy these deficiencies in the special child hearsay statutes.