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.
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Mandatory Reporters of Child Abuse and Neglect
- 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.
- 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 Child Abuse
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- Many states have passed legislation to assist children through the court process. These innovations include:
- Allowing the judge to close the courtroom during a child victim’s testimony. The purpose of these statutes is to reduce a child’s fear of testifying and protect the child from the embarrassment of talking about their victimization.
- Allowing leading questions to be asked of child witnesses. Although trial courts have the inherent authority to allow leading questions of witnesses on direct examination, a few states grant this authority by statutes addressing child witnesses.
- Allowing the use of anatomical dolls in child abuse trials. A few states have specified that courts may allow use of anatomically correct dolls to aid in a child’s testimony, even though the overall scientific community believes that the use of these dolls is leading and suggestive and not recommended.
- Limiting the length of a child’s testimony. While trial courts have the inherent authority to control their courtroom, some states direct judges to be sensitive to the time of day and length of time a child testifies.
- Limiting the number of interviews or interviewers during investigation. A few states attempt to reduce repeated pre-trial interviews of child victims by statute.
- Requiring cases involving child witnesses to be given precedence in the criminal docket.
- Many of these special procedures can be implemented without special statutes as they are matters within the trial court’s inherent authority, but a careful record should be maintained for appeal.
Sexual Offense Crimes
- 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.