A Lawyer Speaks Sentencing and Child Molestation

This is a follow-up to yesterday’s blog; Jarod Fogle Sentencing Child Molesters.   The following article is from last year; however, I feel it is relevant to understanding the prosecution of child molesters. This lawyer discusses both the difficulties of deciding to prosecute a case and the difficulties in the actual prosecution. The article was taken from xojane. A link to that site and the article follows my repost.

Our laws are being interpreted in ways that protect the predators and not the victims. The offenders hold all the rights. Consider this as you read–we need to have a paradigm shift in our thinking, in our approach, and in our laws. JDP

RePost:

“I’ve Worked As a Lawyer on Child Molestation Cases, And Just Because Woody Allen Wasn’t Prosecuted Doesn’t Necessarily Mean He’s Innocent”

Many times what it comes down to is whether a conviction can be obtained. And that’s it. No matter what a child is saying, no matter if they’re telling the truth — that is what decides whether a case is prosecuted at all.   Anonymous   · Feb 10, 2014

Prosecuting child sex abuse cases is a tragedy unto itself.

Over the weekend, Woody Allen came out with a letter in the New York Times entitled “Woody Allen Speaks Out” where he addressed the renewed allegations of sexual assault and said that after this, he would not address the issue of Dylan Farrow’s accusations ever again.

In the piece, he wrote: “I naïvely thought the accusation would be dismissed out of hand because of course, I hadn’t molested Dylan and any rational person would see the ploy for what it was. Common sense would prevail. After all, I was a 56-year-old man who had never before (or after) been accused of child molestation. I had been going out with Mia for 12 years and never in that time did she ever suggest to me anything resembling misconduct. Now, suddenly, when I had driven up to her house in Connecticut one afternoon to visit the kids for a few hours, when I would be on my raging adversary’s home turf, with half a dozen people present, when I was in the blissful early stages of a happy new relationship with the woman I’d go on to marry — that I would pick this moment in time to embark on a career as a child molester should seem to the most skeptical mind highly unlikely. The sheer illogic of such a crazy scenario seemed to me dispositive.”

This, of course, is in response to Dylan Farrow’s open letter where she wrote, “What’s your favorite Woody Allen movie? Before you answer, you should know: when I was seven years old, Woody Allen took me by the hand and led me into a dim, closet-like attic on the second floor of our house. He told me to lay on my stomach and play with my brother’s electric train set. Then he sexually assaulted me. He talked to me while he did it, whispering that I was a good girl, that this was our secret, promising that we’d go to Paris and I’d be a star in his movies. I remember staring at that toy train, focusing on it as it traveled in its circle around the attic. To this day, I find it difficult to look at toy trains.”

What does this widely publicized case playing out in the headlines again 21 years later tell us? To me, it proves one thing with total certainty: Child molestation cases are perhaps the most difficult to prosecute and prove conclusively, and many accused abusers never make it to court simply because there is not sufficient evidence to do so. Of course, this doesn’t always mean they aren’t guilty, just that their crime cannot possibly be proven in a court of law.

 

How do I know this? I am a lawyer who has worked on exactly these kinds of cases, and for a number of reasons, they are incredibly hard to prove.

  1. Many cases are dismissed or never charged simply because of a lack of evidence.
  2. Confessions are difficult to achieve, and without one, winning a case is much more odds stacked against you than any other case because of the accusations in question.
  3. A child is not a fully formed adult and many are deemed to young to take the stand.
  4. Children are inconsistent and are eager to please adults. Testimony is difficult and unreliable, even when the truth is being told.
  5. Many children do not come forward at all, and eventually fall through the cracks of the system.

One of the most heartwrenching cases I ever worked on involved the rape of a young 8-year-old girl. Not only did she have to take the stand to testify, but like the Allen case, it occurred during a bitter and acrimonious breakup. There was an attempt to obtain a penile plethysmograph (a device to measure sexual arousal on a man’s penis), which never occurred, and even if it had been obtained, would not have provided the concrete evidence that a jury often needs to convict.

Even though we see it played out on so many “Law & Order” TV shows, it is still easy to forget. Many times what it comes down to is whether a conviction can be obtained. And that’s it. No matter what a child is saying, that is what decides whether a case is prosecuted at all.

You need 12 people on a jury to agree to convict a person. Without proper and indisputable evidence (semen on clothing or bed sheets as detected by infrared technology), how do you get “beyond a reasonable doubt”? Physical evidence is challenging because unless you get a child to the ER for a rape evaluation, it is hard to tell months later if the hymen was torn. And even if the hymen was torn, there are other ways for this to occur. One case I dealt with was ruled out because mounds that were found in the vaginal area, which can be caused by rape, can also be caused by pure genetics — again establishing reasonable doubt.

A trial is a quest for the truth. But when evidence can point in two different directions, the truth — at least in a court of law — is not readily discernible.

The psychological experts will always be conflicted in these situations. On the one hand, the defense attorney will be able to say that the abuse was a story created by the soon-to-be ex and implanted in the child’s mind. Then the child starts filling in details that don’t hold up on cross exam.

Because a child is involved, she is often — understandably — giving inconsistent versions, which can dramatically hurt the case.

Of course, the victim here is the child, and since we are dealing with someone so very young, inconsistency is entirely understandable — but in the court of law, compassion is rarely a factor.

There are varying degrees of abuse. It could be fondling. It could be making the child touch the adult. It could be digital penetration. Those types of abuse will not produce physical evidence.

So then as a prosecutor, you have turn to the field of psychology and have a psychologist interview the child. Has the child’s mood changed? Was she a good student before and now having difficulty in school? Is she exhibiting any type of withdrawal behavior?

Generally, psychologists will tell you that there is a “grooming” period where the abuser will do non-sexual acts to gain the trust of the child. Doing nice things, such as normal hugging. The problem with that is that most step-dads are trying to create a family atmosphere with the new spouse and her child. So any type of behavior could be classified as “grooming,” even if there is no abuse.

We also have the issue of a psychologist’s testimony holding up. The prosecutor’s psychological expert will say that all the behavior of the child is consistent with child abuse. But on cross, a good defense attorney can get the psychologist to admit to a whole host of behaviors that are consistent with child abuse: if she acts out — it’s consistent with child abuse; if she withdraws — it’s consistent; if she cries — it’s consistent; if she laughs — it’s consistent.

The problem is that without a good physical evidence case, any behavior the accuser exhibits is consistent. The potential for reasonable doubt here is astronomical.

I think a mistake prosecutors make is to have the accuser/child testify on video and then play the video in court to the jury to avoid having to put the child on the stand to spare the child stress. I think that, while that’s noble and protective of the child, it damages the case because a jury gets more from body language when the testimony is live. There are physical cues and body language. On an everyday basis we evaluate if people are telling us the truth by body language. When you take that away from a jury, it hurts the case.

The child will end up being interviewed half a dozen times before she has to testify. It’s an ordeal. First the cops; medical evals; psych evals; the prosecutor; the defense may get to do a pre-trial examination; the grand jury and then the prosecutor again to prep her to testify and then finally the trial. It’s a lot over a one year period for a child to take.

Prosecutors hate these cases. Nobody wants to touch them. They are that hard.

The fact of the matter is that the pressure on the lawyers on both sides is tremendous. Everybody is expecting the prosecution to win and put the guilty bastard away. If the prosecutor loses, he’s blamed for letting a child molester loose.

Some statistics place false accusations as low as 1 percent, and when a jury or a judge does not move forward, it does not necessarily mean the accused person is innocent. It means that the case simply cannot be won.

Of course, I would never claim to say I could point to Woody Allen’s guilt or innocence, but I can say without a doubt, that innocence or guilt has very little to do with what is prosecuted. Evidence is is the key, and that’s it.

In terms of verbal admissions, cognition only truly forms at the age of around 7 in children, and there is a high degree of suggestibility in these cases, which complicates matters to a degree that has made many in the law wary of “witchhunts” like the McMartin preschool trial in the 1980s. At that time, children began telling stories of baby bunnies being killed and ritualistic cult activities. It is one of the classic cases that has become legal shorthand for being careful about children’s testimony.

In fact, in one study examining the prosecution of 1,000 child sex abuse cases for the Center on Children and the Law at the American Bar Association, the majority of the prosecutors revealed that they frequently decided not to proceed in prosecuting a sex abuse case simply on the grounds that a victim is too young to take the stand.

It’s a heartbreak no matter which angle you are examining the phenomenon.

The Dylan Farrow-Woody Allen case is but emblematic of a greater tragedy that has been unfolding for years.

Children can be telling the truth, but the law does not always protect it.

Source: http://www.xojane.com/issues/woody-allen-open-letter

Of course other factors besides the ones mentioned in this article come into play with the decision not to prosecute. Athletes have their records to hold and medals to show. Actors have their list of blockbusters and their Emmys or Oscars. Similarly, the team members who work on these cases have records to earn and their jobs to protect. No one wants to be on a losing team. In their defense the decision to prosecute is not always in the hands of the team members. Power usually works from the top down.

The more we prosecute the more we create a record of these predators. Then when the next incident occurs, and it will, that next victim has a better chance of being heard, being believed, and gaining freedom. As our current process stands the children are easily silenced and remain available to the offenders. We need to rethink the way we handle prosecution and put our children first, not our records. Then those team members who really care about our children can take the actions needed to protect our children. Remember pressure comes from the top down. Keep informed about your elected officials and how they vote on these issues. As we head into a huge election year make sexual crimes against children an issue one that our candidates must address! JDP

Jarod Fogle Sentencing Child Molesters

I have read and heard many comments about the leniency of the sentence against Jarod Fogle. I am still amazed that so many are unaware of the reality of prosecuting child molesters.  These cases are difficult to prosecute for a variety of reasons.  Therefore charges are not pressed, prosecution does not occur, and obviously sentencing is not given nor is the public made aware of the child molesters in their midst.  This is the norm.  Do I agree with the light sentence of Jarod Fogle—NO!  Until, as a society we educate ourselves, advocate for children’s rights, and make our elected officials accountable for supplying funds and creating laws that will curtail the activities of these child molesters, and those that protect them, we will have the same results or lack thereof.  Furthermore, I fear that if we continue down this path we will one day normalize this type of crime.  As I searched for news articles about the sentencing I had difficulty finding mainstream news articles that did not gloss over the crimes committed by Jarod Fogle.  Most did not mention the taped conversations he had about wanting access to younger victims. JDP

http://www.cbs19.tv/story/30561611/jared-fogle-sentenced-to-nearly-16-years-on-child-porn-charges

http://www.people.com/article/jared-fogle-sentence-too-light-say-convicted-child-pornographers

http://www.foxnews.com/us/2015/11/19/ex-subway-spokesman-jared-fogle-pleads-guilty-to-child-porn-sex-crimes

I want to show you a brief set of statistics. Look closely at the fifth statistic.  Astonishing the short length of the average sentences and the brevity of actual time served.  That is our reality.  Now imagine how few are even sentenced.

Child Molester Statistics: According to the U. S. Department of Justice Bureau of Justice Statistics, there were 9,700 convicted sex offenders who were released in one year alone.

* Nearly 4,300 of the 9,700 were labeled child molesters.

* Of the 4,300 child molesters that were released in that one year, 3.3% were rearrested for another sex crime against a child within three years of their release.

* A Bureau of Justice Statistics survey shows that the victims of approximately 70% of the convicted sex offenders were children.

* In almost half of the child molestation cases, the child was the convicted sex offender’s son, daughter, or relative.

* The average sentence given to the 4,300 child molesters was approximately seven years, with three of seven years typically being served.

Source: http://childprotection.lifetips.com/cat/63573/sex-offender-statistics/index.html

Remember, these are only statistics that were extracted from actual prosecutions. There are multitudes of cases that never come to trial.  I am posting a separate follow-up article that is a bit lengthy, but it is a revelation to those who truly do not understand how the system works.  Find the time to read the follow-up article A Lawyer Speaks Sentencing and Child Molestation. Of course other factors besides the ones mentioned in the follow-up article come into play with the decision not to prosecute.  Athletes have their records to hold and medals to show.  Actors have their list of blockbusters and their Emmys or Oscars.  Similarly, the team members who work on these cases have records to earn and to protect.  No one wants to be on a losing team.  However, the more we prosecute the more we create a record of these “alleged” predators.  Then when the next incident occurs, and it will, that particular victim has a better chance of being heard, being believed, and gaining freedom.  As our current process stands the children remain silenced.  We need to rethink the way we handle prosecution and put our children first, not our records.  Then those team members who really care about our children can take the actions needed to protect our children.  Remember pressure comes from the top down.  Keep informed about your elected officials and how they vote on these issues. As we head into an big election year make sexual crimes against children an issue that our candidates must address! JDP

Mothers Who Hurt Their Children: Mom knows best – right? RePost from Out of The Fog

We know that the factors leading to child abuse vary.  We also know that not all abusers are male.  Yet, we seldom see that addressed so in all fairness I do so now.  Recently, I came across the article Mothers Who Hurt Their Children: Mom knows best – right?  This piece addresses personality disorder as a factor in child abuse.  The article includes numerous statistics, charts and graphs therefore; I only share a few excerpts and instead include a link to the full article at its home site Out of The Fog. The site states their purpose is to: “Provide information and support to the family members and loved-ones of individuals who suffer from a personality disorder.”   

If you do not have the time to read the entire article Mothers Who Hurt Their Children: Mom knows best – right?, please go to the site and bookmark it, or print it out to read later.  The Out Of The Fog site includes among its pages; Disorders, Traits, Toolbox, Books, Links, C-PTSD, Resources In An Emergency, Private Messages, Guidelines, Glossary, Acronyms, Support, and a Support Forum. http://www.outofthefog.net/Relationships/MaternalChildAbuse.html

Take the time, you may recognize someone you know, save the life of a child and get a female guardian help.  JDP

Mothers Who Hurt Their Children:  Mom knows best – right?

It must be true… A mother knows what’s best for her children. Who isn’t for motherhood and apple pie? It’s reinforced in our literature, movies, books, our laws, our religion. Mom knows best. There is no love greater than that of a mother for her children…

Our governments, schools, churches, courts bend over backwards to protect and support the rights of mothers. Mothers are encouraged and empowered to home school their children, diagnose their illnesses, control their activities, choose their friendships, dictate their living conditions, even select their religion.  Parenthood isn’t easy and many mothers do an excellent job of what is a very challenging assignment.  But not all…

Who Is Abusing the Kids?

The answer may surprise you. It is most commonly not the proverbial “stranger” that most children are warned to avoid – it is more likely to be someone much closer to home.  Child Maltreatment Statistics

Qualifications for becoming a Mother

So who really does know best?  In the US, there are laws to protect all sorts of individuals from reckless behavior of others. For example, you must pass an exam before you may:

  • Drive a car,
  • Fly a plane
  • Operate a crane
  • Run a restaurant
  • Educate school children
  • Become a social worker or any kind of therapist
  • Diagnose an ailment or prescribe, dispense or administer any kind of medicine or medical treatment…

But there is no qualification for becoming a Mother other than being female. Nor is there any review of your performance except in the most severe cases of physical violence and neglect.

When it comes to your treatment of strangers you may be prosecuted for:

  • hitting
  • slandering
  • harassing
  • stalking
  • invading their privacy
  • confiscating their property…

However

When it comes to treatment of minors, parents are held almost completely unaccountable. Minor children of abusive parents are completely trapped in their environment – dependent totally on an overwhelmed legal system to take action – after the abuse has been witnessed and reported by a neighbor, teacher, doctor or social worker. Many cases go unreported…

 If you suspect a child you know may be abused by someone with a personality disorder according to Out of The Fog the following are potential indicators. JDP

Examples of Common Dysfunctional Traits

Here are some examples of some dysfunctional maternal traits that are common among mothers who suffer from personality disorders. Click on the links for more information about each trait or Click Here for more Common Traits of People who Suffer from Personality Disorders.

Blaming – The practice of identifying a person or people responsible for creating a problem, rather than identifying ways of dealing with the problem.

Bullying – Any systematic action of hurting a person from a position of relative physical, social, economic or emotional strength.

Emotional Blackmail – A system of threats and punishments used in an attempt to control someone’s behaviors.

Engulfment – An unhealthy and overwhelming level of attention and dependency on another person, which comes from imagining or believing one exists only within the context of that relationship.

False Accusations – Patterns of unwarranted or exaggerated criticism directed towards someone else.

Favoritism – Favoritism is the practice of systematically giving positive, preferential treatment to one child, subordinate or associate among a family or group of peers.

Gaslighting – The practice of brainwashing or convincing a mentally healthy individual that they are going insane or that their understanding of reality is mistaken or false. The term “Gaslighting” is based on the 1944 MGM movie “Gaslight”.

Infantilization – Treating a child as if they are much younger than their actual age.

Mood Swings – Unpredictable, rapid, dramatic emotional cycles which cannot be readily explained by changes in external circumstances.

Munchausen’s and Munchausen by Proxy Syndrome – A disorder in which an individual repeatedly fakes or exaggerates medical symptoms in order to manipulate the attentions of medical professionals or caregivers.

Objectification – The practice of treating a person or a group of people like an object.

Parental Alienation Syndrome – When a separated parent convinces their child that the other parent is bad, evil or worthless.

Parentification – A form of role reversal, in which a child is inappropriately given the role of meeting the emotional or physical needs of the parent or of the family’s other children.

Perfectionism – The maladaptive practice of holding oneself or others to an unrealistic, unattainable or unsustainable standard of organization, order, or accomplishment in one particular area of living, while sometimes neglecting common standards of organization, order or accomplishment in other areas of living.

Projection – The act of attributing one’s own feelings or traits to another person and imagining or believing that the other person has those same feelings or traits.

Push-Pull – A chronic pattern of sabotaging and re-establishing closeness in a relationship without appropriate cause or reason.

Raging, Violence and Impulsive Aggression – Explosive verbal, physical or emotional elevations of a dispute. Rages threaten the security or safety of another individual and violate their personal boundaries.

Scapegoating – Singling out one child, employee or member of a group of peers for unmerited negative treatment or blame.

Shaming – The difference between blaming and shaming is that in blaming someone tells you that you did something bad, in shaming someone tells you that you are something bad.

http://www.outofthefog.net/Relationships/MaternalChildAbuse.html

Disclaimer: Remember to consult a professional for an actual diagnosis.  JDP

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