Jeff Hohl
One of my biggest fears about being a prosecutor was trying a child sexual assault case. The range of punishment, the typical lack of physical evidence, and especially the child victim weighed on my mind. When we meet a child victim face-to-face, we realize we are the person who will help tell her story in court, the one responsible for questioning her, and the one under intense pressure while the jury deliberates guilt. Multiply those feelings by a million, and that’s how the victim probably feels.
One thing I’ve discovered in this job is that talking with, listening to, and sharing experiences with other prosecutors is invaluable. Those who try sexual assault of a child cases will experience a great sense of gratification and purpose that is hard to match and describe, but they’ll also likely encounter dizziness, exhaustion, anxiety, surprise, fear, and panic because these cases can be fraught with difficulty. In this article, I have tried to address the hardest parts of preparing for these cases and how to handle them.
Delayed outcry
Don’t panic. A delayed outcry does not mean that a child is lying. Most of the time it simply means the child was not ready to tell anyone about sexual abuse until that day. Research indicates that a large percentage of children do not outcry right away about sexual abuse.1 Several studies into disclosure of victims of sexual abuse suggest that “just over one-third of adults who suffered [child sexual abuse] appear to reveal the abuse to anyone during childhood. Furthermore, among children who do disclose during childhood, delay of disclosure is common.”2
A forensic interviewer and other professionals who provide counseling to sexual abuse victims are good resources for this phenomenon. They’ll report that delayed outcries are common, children outcry in a number of different ways, and the time of the outcry differs from child to child. A jury will need to understand this too, so get ahead of it early. Jury panels are generally receptive to the idea that most abused children don’t tell someone right away. Of course, there might be that one person or group of people who believe that a child who doesn’t tell right away must be lying, but most citizens will understand that delayed outcries are not outrageous. After covering it in voir dire, address it again in opening statement and again with the forensic interviewer or other professional on the stand who can explain the dynamics of an outcry. Forensic interviewers are trained to speak with children, do so almost every day, and can describe the process of disclosure to the jury.
Get to know the forensic interviewers in your area and take the time to sit and talk with them about their experiences. Their insight is invaluable and will assist in understanding child victims and their behavior. In addition, counselors, psychologists, and psychiatrists have a wealth of information about children who are victims of a traumatic event. Unless a juror has some background in understanding how children react to trauma, it will likely be a learning curve for the panel to understand the dynamics of disclosure, and having an expert explain this on the stand can put the disclosure and any delay in the right context. By the time the defense attorney cross-examines the child on why she didn’t say anything sooner, the jurors are probably answering in their own heads, “Because of all that stuff that we learned about delayed outcries from the State—duh.”
Some children don’t tell, even when asked
There may be a case where the child was asked about sexual abuse during an investigation and denied it. A study conducted of victims of a sexual perpetrator in Sweden demonstrates how children can be reluctant to disclose abuse, even when the evidence is unambiguous.3 In this particular case, a pedophile had videotaped abusing his victims. Of the 10 children studied, their ages ranged from 3 to 11 when they were abused and 4 to almost 13 when interviewed.4 “At least six of the children … experienced abusive incidents which should have been memorable. Some of them refused to admit that sexual abuse had occurred, however. Four children seem to have been unaware of what happened and could not ‘remember’ or provide specific details about their abuse.”5
Children do not report sexual abuse for many reasons. Maturity level, minimization, a pact with the perpetrator, fear of punishment, and fear of not being believed are all possible reasons why a child might not disclose sexual abuse.6
One of my first sexual abuse cases was an indecency with a child in which the defendant was the victim’s father. Based on the evidence, we knew that the abuse occurred; the victim was then interviewed by CPS and later outcried. When my victim talked with CPS, she was asked if anyone had ever touched her inappropriately, and she answered “no.” Her response highlights two rules that prosecutors should follow in child sexual assault cases. First, read CPS records (if there are any) for a victim and her family. CPS investigators talk with children and parents and include descriptions of those conversations in the records. This particular CPS investigation, where the victim denied any sexual abuse, happened to be separate from the actual abuse investigation, but it became extremely important to my case. Had I not known about it beforehand, the defense would have certainly used it to surprise my witness on the stand and me as well. Instead, because I knew about it, I spoke with my victim about it and addressed it in voir dire, opening statement, and direct examination. The victim’s explanation—that she wasn’t comfortable speaking with a stranger about sexual abuse—was completely reasonable. She wasn’t ready to disclose, and she wasn’t going to disclose to someone with whom she didn’t feel comfortable talking about sex. By the time the defense asked about it, it was old news. Which is the second important lesson: Get ahead of bad facts—which you will have. Doing so is essential to the credibility of the State’s case.
File notices
All children are different when it comes to coping with sexual abuse. Some children will suffer psychiatric and behavioral problems, and some will not.7 Researchers have found an array of symptoms in sexually abused children including suicidal ideation, anxiety, depression, substance abuse, aggression, and some level of post-traumatic stress disorder (PTSD).8 This can make them completely unpredictable on the stand. One child may be articulate and describe the abuse in perfect detail while another cannot say a word. Experts will be essential in explaining all of this to the jury.
One thing prosecutors can control is filing notices. Texas Code of Criminal Procedure Art. 38.37 provides an invaluable tool in child sexual assault cases that allows the introduction of prior bad acts into evidence. If there are prior bad acts that meet the statute’s criteria, give notice 30 days before trial. Make sure outcry notice, described by Art. 38.072, is filed 14 days prior to trial, has sufficient detail, and identifies the correct outcry witness. Most of the time you’ll get a good sense of who the outcry witness is from the case file. However, when speaking with the child’s family, sometimes you’ll discover that the victim explained the abuse to Grandma or someone else first. Then you realize Grandma was never interviewed and never wrote a statement and that you’ve never even spoken with Grandma. Go talk with her. Bring along an investigator or police detective to take a formal statement.
I had a sexual assault case where I reviewed the file and was aware—or thought I was aware—of all witnesses that the victim had spoken to regarding the offense. I filed my outcry notice, and I was ready for trial. Upon review of the victim’s medical records for an unrelated hospital visit shortly before the outcry, I found one line in the records saying that the victim told a nurse that the defendant was abusing her. This statement occurred before the victim told anyone else. That particular case ended with a plea and the statement in the medical records probably lacked the specificity necessary to qualify as an outcry statement—the statement must be more than just a “general allusion that something in the area of child abuse is going on.”9 However, this example demonstrates the importance of talking with the victim’s family. Ask about medical visits, and get those records early. Children, for a number of reasons, may tell a medical professional something that they’ve never told their family. Because a victim may talk to multiple people about the abuse, take time to understand the caselaw on multiple outcry witnesses. As stated by the CCA, “Hearsay testimony from more than one outcry witness may be admissible under Art. 38.072 only if the witnesses testify about different events. There may be only one outcry witness per event.”10
What do I say to a victim?
As already noted, every child is different. Some will discuss the abuse with the prosecutor openly, while some may never. When prosecutors meet with the child, ask the parent or guardian about counseling or other medical professional visits. These records can provide invaluable insight into how the child is coping.
The important thing is to avoid rushing the child. Every prosecutor differs on how he communicates with a victim. My method is two-fold: Build a rapport, and be honest. I try to meet with victims multiple times. The first time, I avoid any discussion about the facts of the case. I talk about school, hobbies, movies, TV—basically anything that the child would be doing if she didn’t have to talk with me. I always try to arrange a courtroom tour to allow a victim to sit in the witness stand, sit in the attorney chair, and generally become more familiar with the courtroom. Once these are complete, I’ll discuss the facts of the case with the child. I always tell children that I have to ask them about their body and about their body parts and that it may be uncomfortable. I tell them that I’m not doing it to make them uncomfortable but to better understand what happened to them. I’m usually very direct with children regarding this subject. If they are old enough, I let them know that they are mature enough to understand why I need to talk about these things. But the most important thing I tell the child is that she need not worry about testifying because all she has to do is tell the truth. That’s it.
Differing stories
Say you are meeting with a victim, going over the offense, and she tells you that the abuse happened at another time, that it happened differently from what she said before, or that the abuse never happened. Again, don’t panic.
First, never meet alone with a child victim. Include a victim-witness coordinator, an investigator, or another prosecutor at every meeting. While there are multiple reasons for this rule, one of the most important is if there is an additional outcry, someone other than the prosecutor can testify about it.
Second, any time a victim recants or gives a new account of what happened, the next step should be a notification to defense. Based on Brady and the Michael Morton Act, such information must be disclosed.11 A written notification that can be confirmed or filed with the clerk is recommended.
Our final step is analyzing whether the information affects how or even whether to proceed on the case. This will depend on your discussions with the child, your review of the case, and discussions with your superior. If dismissal is the just outcome, then dismiss the case as quickly as possible. If the child tells you the abuse didn’t happen but dismissal is not appropriate, a new or follow-up forensic interview can be a valuable tool. If you believe from the evidence that the child is recanting out of fear or some other motive, try to establish that fact. A forensic interview can give the child an environment to express those feelings of fear or any other motive to recant. The important thing throughout this process is to understand that children are not perfect. Cases where a child tells the prosecutor something different, gives more information, or doesn’t remember something are common. This is a reality.
“I still love him”
One of the hardest behaviors for juries to understand is why a child would still love, support, or even defend the perpetrator. “It is a misconception that child molesters are somehow different from the rest of us, outside their proclivities to molest. They can be loyal friends, good employees, and responsible members of the community in other ways.”12 It’s especially difficult to understand if the perpetrator is someone with a close relationship to the family or a family member. Because a child still loving that person isn’t a behavior that is automatically recognized or identified by non-professionals, it needs to be explained to the jury so that if the kiddo gets on the stand and says, “I still love him,” jurors understand why.
Kids in court
Keep in mind that statutes exist to protect children in court. Texas Code of Criminal Procedure Art. 38.074 states that the child’s testimony should be limited in duration, the time of day taken into account, and a recess ordered if necessary. It also prevents intimidation by either party.
On motion of any party, the child can bring a support item to the witness stand if the judge makes a finding that the child needs it and it won’t prejudice the jury.13 I’ve seen children bring up something as simple as a coin to rub while they are testifying. For a child required to talk about intimate sexual acts in front of the perpetrator, attorneys, and 12 strangers, a small comfort item can make a big difference. Anna Salter, who obtained her Ph.D. in Clinical Psychology and Public Practice from Harvard University, earned a Master’s Degree in Child Study from Tufts University, has written non-fiction books on sex offenders, and lectures and consults throughout the world on the topics of sex offenders and victims, relates an experience she had on the witness stand:
I was on the witness stand once against a man who had raped and murdered a 9-year-old neighbor child who came to his door on Halloween night. … He glared at me throughout my testimony as though he would take my throat out with a spoon. … Unfortunately, almost everybody in the courtroom was looking at me [and didn’t see his glare]. If it was sobering for me to testify with a predator glaring at me, imagine what it is like for a child. It is easier than you think for offenders to intimidate witnesses in open court and get away with it.14
Put it in perspective
When you work these sexual assault cases with child victims, take a look at the statistics. Some of them will shock you. A good resource is the Department of Justice National Sex Offender Public Website. It contains statistics regarding abuse of adults and children as well as information on disclosure of abuse.15 Reading the statistics will help prosecutors identify common areas that need to be addressed in voir dire and throughout trial. For example, it’s important to know how many victims don’t speak up, why they don’t, where the abuse often occurs, and to whom they often disclose. Armed with this information, you can better prompt a venire panel about common beliefs regarding sexual abuse: Do children outcry right away? Do they tell everything? Whom do they tell? Most cases will involve an issue that is addressed by the statistics on that website.
One final tip: Stay healthy!
It’s something prosecutors don’t like to talk about and don’t often admit, but working on cases involving sexual abuse of children can hurt not only the victim and her family but also the victim assistants, investigators, and prosecutors on such cases. It makes sense: We are reading, talking about, thinking about—and then thinking about some more—some of the most heinous things that an adult can do to a child. These cases take a toll on us, and they wear us out.
It’s important that prosecutor office staff are mindful of this danger and take steps necessary to stay healthy. No kidding, but I have to remind myself during trial to eat and drink water. Also, I try to work out or do something physical during the week that reduces stress and helps me sleep. Remember, if we aren’t healthy, we can’t try the case. And if we can’t try the case, we can’t fight for justice for the victims.
Endnotes
1 Margaret Ellen Pipe & Michael E. Lamb & Yael Orbach & Ann-Christin Cederborg, Child Sexual Abuse: Disclosure, Delay, and Denial, 16 (2007).
2 Id.
3 Id., 159-160.
4 Id., 161.
5 Id., 170
6 Id., 171.
7 Id., 228.
8 Id., 229.
9 Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990).
10 Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
11 Brady v. Maryland, 373 U.S. 83 (1963), Tex. Code Crim. Proc. Art. 39.14.
12 Anna C. Salter, Ph.D., Predators: Pedophiles, Rapists, & Other Sex Offenders, Who They Are, How They Operate, And How We Can Protect Ourselves and Our Children, 47 (2003).
13 Tex. Code Crim. Proc. Art. 38.074.
14 Salter, 50.
15 https://www.nsopw.gov/en-US/Education/FactsStatistics#reference.