Karen Staller - Seeking Justice in Child Sexual Abuse

edited by

Karen M. Staller and
Kathleen Coulborn Faller

COLUMBIA UNIVERSITY PRESS NEW YORK

Columbia University Press

Publishers Since 1893

New York Chichester, West Sussex

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Copyright 2010 Columbia University Press

All rights reserved

E-ISBN 978-0-231-51826-0

Library of Congress Cataloging-in-Publication Data

Seeking justice in child sexual abuse : shifting burdens and sharing responsibilities / edited by Karen M. Staller and Kathleen Coulborn Faller.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-231-14614-2 (cloth : alk. paper) ISBN 978-0-231-51826-0 (e-book)

1. Child sexual abuseUnited States. 2. Child sexual abuseInvestigationUnited States. I. Staller, Karen M. II. Faller, Kathleen Coulborn.

HV6570.2.S44 2009

363.25'9536dc22 2009024187

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Contents

1 Child Sexual Abuse: Legal Burdens and Scientific Methods
KAREN M. STALLER AND FRANK E. VANDERVORT

4 Investigation of Child Sexual Abuse:
Interviewing Victims and Interrogating Suspects
KATHLEEN COULBORN FALLER

5 Professional Practitioners Views on Videotaping:
Capturing and Conveying a Childs Story
KAREN M. STALLER AND FRANK E. VANDERVORT

6 Polygraph Magic
KATHLEEN COULBORN FALLER

7 Shifting the Narrative Burden Throughout Investigations and Prosecutions of Child Sexual Abuse
ELANA D. BUCH

8 Shouldering the Shifted Burden: The Defense Attorneys
FRANK E. VANDERVORT

9 Victim and Offender Treatment and Therapeutic Justice
KATHLEEN COULBORN FALLER

10 People, Protocol, and Process: The Inman Case
KAREN M. STALLER

11 Conclusions from the Study of St. Mary County
KAREN M. STALLER

In his waning days as the prosecutor in St. Mary County, Mark Jameson stood one snowy morning in December 2002 before a jury and told its twelve members that in the next three days he would prove beyond a reasonable doubt that forty-eight-year old Tommy Inman had repeatedly sexually assaulted twelve-year old Takisha Johnson. Eight men and five women would hear the evidence against the defendant, much of it presented by the preteen girl, and decide Inmans fate.

Inman was charged under state law with three counts of criminal sexual conduct (CSC) in the first degree. When Jameson, in his relaxed, plainspoken manner, explained to his fellow citizens that the evidence would show that this man committed separate acts of digital and penile penetration and forcing Takisha to perform fellatio upon him, he promised one of the laws most difficult tasks: proving a criminal case of child sexual abuse (CSA) beyond a reasonable doubt.

Beyond reasonable doubt is a standard designed for a system that seeks to protect the innocent from being wrongly accused and convicted. If the scales must tip in favor of one side or the other, then in theory the legal system would prefer the guilty to walk free than deprive an innocent person of liberty. The power behind this presumption plays out in favor of the defendant throughout the process. The accused has the right to an attorney, the right to remain silent, the right to confront and cross-examine his accusers in a court of law, the right to a trial by a jury of his peers. Once in court, the burden rests on the prosecution to go well beyond establishing a plausible case, one supported by lower legal standards such as the preponderance of the evidence, and to convince the jury of the defendants guilt beyond reasonable doubt.

American prosecutors possess broad discretion in determining which criminal suspects should be charged and what charges to level (United States v. Armstrong). When they exercise this discretion, they must take into consideration the fact that in order to get a conviction they need to meet the beyond a reasonable doubt standard of evidence. This creates a margin of error in criminal charging. Unless the prosecution is convinced of a realistic opportunity to meet the standard, it will not typically charge a defendant (Kaplan, 1965). This helps to explain why the prosecution so rarely loses a case and provides one rationale for why so many criminal cases are resolved when the defendant pleads guiltyonly cases with overwhelming evidence actually result in criminal charges. There is nothing untoward about this. Indeed, the American criminal justice system is designed to achieve just this result. The margin of error seeks to ensure that innocent people are rarely charged with a crime and that individuals should not be charged unless there is substantial evidence indicating guilt.

Unique challenges presented by CSA cases are layered atop this ever-present margin of error, and over the years children have paid a price as a result. Studies suggest that vastly larger numbers of children are victimized by adults (Berliner and Elliott, 2002) than are vindicated through criminal proceedings (Jones et al., 2007; Cross et al., 2007; Walsh et al. 2007; Walsh et al. 2008; Palusci et al., 1999; Martone, Jaudes, and Cavins, 1996; Cross, De Vos, and Whitcomb, 1994; MacMurry, 1988).

Writing in 1987, the United States Supreme Court observed, Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim (Pennsylvania v. Ritchie, 60). In order to prove such a case, a prosecutor must overcome a host of practical and legal problems: most cases of CSA leave no physical evidence, no injury that can be observed or detected by a medical examination (Palusci et al., 1999), and no bodily fluids that can be tested by forensic scientists.

The prosecutor must be able to convey a coherent legal narrative to the jury. Scholars have noted the significance of these legal narratives, the resolution of any individual case in the law relies heavily on a courts adoption of a particular story, one that makes sense, is true to what the listeners know about the world, and hangs together (Scheppele, 1989:208). The prosecutor must shape his or her clients case into a coherent story (Korobkin, 1998:10). In the case of child sexual abuse, the prosecutor must explain why children sometimes do not report their sexual victimization for months, even years; must help juries understand why, when children do report abuse, they may not tell the entire story in their initial disclosure, which can leave the uninformed juror with the impression that the child has embellished the story over time; and may need to make sense of why children sometimes recant valid disclosures of sexual abuse. They must somehow explain to average citizens what seems to be counterintuitive behavior on the part of some victims of CSA, such as why a child would run into the arms of the man who has hurt her or why a childs description of sexual victimization may contain fantastical elements.