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Legal Update 2000

Domestic Violence Victims Suing Child Welfare Agency:
Class Action Lawsuit Charges ACS Policies Endanger Women and Children
June 15, 2000
New York, NY

A class action lawsuit was filed in federal court against the New York City's Administration for Children's Services (ACS) and the New York Police Department. The plaintiffs claim that ACS and the police take children from victims of domestic violence and put them in foster care -- whether the children are in danger or not. The children are removed from their mother's care because the mother is said to have "engaged in domestic violence" while the children were present. It is claimed that this policy discourages abused women from seeking help by branding battered women "bad mothers." For example, Sharwline Nicholson called 911 for help when her ex (who had moved out of the area) suddenly returned and began beating her. New York police officers later removed Nicholson's children (ages one and five) at gunpoint and handed the children over to ACS, who kept the children in foster care for 3 weeks. Even after returning the children, ACS continued to charge Nicholson with child neglect in the Family Court.

Child Welfare Workers Liable for Negligence
June 15, 2000
Tyner v The State of Washington Department of Social and Health Services, Child Protective Services

No. 67602, Supreme Court of Washington, June 15, 2000, Filed. 2000 Wash. LEXIS 387

The Washington Supreme Court ruled that Child Protective Services social workers can be sued for mishandled, negligent investigations. The Court ruled that "CPS owes a duty of care to a child's parents, even those suspected of abusing their own children, when investigating allegations of child abuse." The ruling overturned a 1997 Court of Appeals decision and reinstated a $201,500 jury verdict against the Department of Social and Health Services won by David Tyner III. In 1993, Tyner was accused by his wife of molesting his then 4-year-old daughter. The Tyner's were in the process of divorce and no abuse was found, but CPS still barred Tyner from seeing his children for four months. Tyner sued, noting the failure of CPS to investigate or disclose information that could have helped him.

South Carolina Supreme Court Says Repressed Memory Can Be Basis for Suit
June 26, 2000
Moriarty v Garden Sanctuary Church, No. 25156 SC Sup Ct June 26, 2000, filed (1000 S.C. LEXIS 149)

In a unanimous decision, the Supreme Court of South Carolina said that repressed memory can be a basis to recover damages for sexual abuse that occurred when the victim was a child. In 1995, a woman sued Garden Sanctuary Church to recover damages for sexual abuse she allegedly suffered as a child between the ages of two and four in the church's day care center. She said the memory was triggered by counseling and by her nursing school classes. The justices affirmed a state Appeals Court decision and said that alleged victims must present independently verifiable, objective evidence to back up their claims. The justices expressed no opinions about the merits of the suit or the validity of the woman's claims of repressed memory. The case will now be heard in a lower court.

Wisconsin Appeals Court Blocks False-Memory Lawsuit
July 13, 2000
Johnson v Rogers Memorial Hospital No. 98-0445, Wisc Ct. Appeals Dist 4, July 13, 2000 (2000 Wisc. App.LEXIS 642)

The 4th District Court of Appeals ruled that Charlotte Johnson's parents had no standing to sue the psychologist who treated their estranged daughter because their daughter had not joined the lawsuit or waived the confidentiality of her medical records. The couple wanted to sue three psychologists for emotional injuries they suffered after their daughter accused them of sexual and physical abuse. The couple claimed the memories were falsely implanted by the therapists. The court stated that the daughter's rights to keep her records confidential outweigh her parents' interest in being compensated for their claimed injuries. The Johnsons' lawyer said they would appeal to the state Supreme Court.

New Missouri Law Requires Batterers to Pay for Their Victim's Care
July 18, 2000

According to the Centers for Disease Control (CDC), about 20% of emergency room visits for trauma and 25% of homicides of women involve domestic violence. Revisions to Missouri's domestic violence law, which went into effect August 28th, will allow judges to require batterers to pay their victims' medical bills. The bill also requires the state to participate in the FBI's uniform crime reporting system that tracks the number of domestic violence incidents.

NYC Child Abuse Policy Suit OK'd
July 19, 2000
People United for Children Inc. v. City of New York, 99 Civ. 0648

A federal judge has refused to dismiss a challenge to New York City's policies for the removal of abused or neglected children from the home. Southern District Senior Judge Robert J. Ward found that a parents advocacy group had stated a claim against the City in its case challenging the Administration for Children's Services. People United for Children Inc., a support group for parents and guardians who have lost custody of their children, argues that the ACS's policy of resolving any ambiguity in an abuse investigation in favor of finding that abuse has occurred is unconstitutional. On behalf of several named plaintiffs, the suit seeks money damages, a declaratory judgment that ACS's policies and practices are unconstitutional, and a permanent injunction. Judge Ward found that People United for Children had stated a claim based on substantive and procedural due process and equal protection violations.

Judge Throws Out Franklin Case against Prosecutors
July 19, 2000
Franklin vs. Fox, No. C 97-2443 CRB, 1000 U.S. Dist.
U.S. District Court, California

District Judge Charles R. Breyer threw out most of the malicious prosecution lawsuit brought by George Franklin against prosecutors and detectives in San Mateo, California. George Franklin was convicted in 1990 of murdering his daughter's friend based on the recovered memory of his now adult daughter.The case had turned largely on the credibility of the memory that Mrs. Franklin-Lipsker claimed to have repressed for 20 years.Franklin was released from prison in 1996 after a federal judge said that the trial had been riddled with errors. All that remains of the suit is Franklin's claim that his daughter conspired to have a therapist give false testimony Franklin's attorneys plan to appeal the ruling.

Pennsylvania Supreme Court Rules Psychiatrist Has No Obligation to Parents
August 22, 2000
Althaus v Cohen,
No 70 W.D. Appeal Dkt. 1998, No. 71 W.D. Appeal Dkt. 1998, Sup Ct Pa
Pennsylvania Supreme Court

The court held that a treating psychiatrist or psychologist does not have a duty to the non-patient parents, and reversed the decision of the Superior Court finding appellant (Dr. Judith Cohen) liable to appellees (Richard and Cheryl Althaus). The Althaus will forfeit $213,000 that they won in December 1994 in a lawsuit against Dr. Cohen and Pennsylvania Western Psychiatric Institute. The issue in this appeal is whether a therapist who treats a child for alleged parental sexual abuse owes a duty of care to the child's parents when the child allegedly has been abused by the parents.

Nicole's parents claimed that Cohen was responsible for their daughter's allegations of sexual abuse. The Supreme Court of Pennsylvania ruled that "The special nature of the relationship between a therapist and a child patient in cases of alleged sexual abuse weighs against the imposition of a duty of care beyond that owed to the patient alone. To hold otherwise would create an unworkable conflict of interest for the treating therapist, a conflict which would necessarily hinder effective treatment of the child. Therefore, we hold that the non-patient parents cannot sustain a medical malpractice cause of action against their child's psychiatrist under the circumstances of this case."

Ohio Court Dismisses Claims of Wrongful Imprisonment by Convicted Sex Offenders
September 2, 2000

In 1985, Robert Dale Aldridge and Mary Jenny Wilcox were convicted of engaging in criminal sexual conduct with a number of children. In 1996, Aldridge and Wilcox appealed based on the fact that three brothers who testified in the trial recanted. Several other victims were not available to testify and visiting judge Richard E. Parrott ruled that assistant Montgomery County prosecutors had violated the constitutional rights of Aldridge and Wilcox by not providing a full version of a police report of allegations that children had been involved in sex acts at aHuber Heights apartment complex. The judge's 1996 ruling freed the two defendants who then sued the state, claiming they were wrongfully imprisoned.
At the trial, the court heard from several of the victims not available during the 1996 hearing. After hearing from all of the victims, Judge Gregory L. Frost dismissed Aldridge and Wilcox's claims of wrongful imprisonment, saying that he was convinced that they had engaged in criminal sexual conduct with at least two of the children.

California Expands Mandated Reporting to Lay Persons
September 18, 2000
Sherrice Iverson Child Victim Protection Act California Penal Code, (SEC. 2. Section 152.3)

Sherrice Iverson Child Victim Protection Act requires that any person who reasonably believes that he or she has observed the murder, rape, or a lewd or lascivious act, where the victim is under the age of 14 years, to notify the police. Failure to do so is a misdemeanor punishable by a fine of $1,500, or by imprisonment in a county jail for up to 6 months, or both. This requirement does not apply to anyone related to either the victim or the offender, including a husband, wife, parent, child, brother, sister, grandparent, grandchild, or other person related by consanguinity or affinity. Privileged relationships as provided by law are also exempted, as is anyone who fails to report based on a reasonable fear for his or her own safety or for the safety of his or her family.

Violence against Women Act Passed
October 2000

The VAWA devotes more than $3 billion over five years to programs to prevent domestic violence and protect women victimized by it. The amount more than doubles the budget for the program, whose previous funding expired Oct. 1. The Act includes $1 billion to help prosecutors track down domestic abusers, $875 million to expand shelters for battered women and their children, $200 million for legal assistance for victims and $140 million to stop violence against women on college campuses.

Also included in the package are measures to:

  • Authorize $95 million over two years to help women trapped in the international sex trade and crack down on traffickers. This money would pay for rehabilitation and shelter programs for victims and aid to foreign governments trying to stop sex trade activities.
    It spares sex trafficking victims from deportation if they face retribution; increases punishment for those convicted of running trafficking operations; and sets up a process for cutting off non-humanitarian aid to governments that tolerate or condone sex trafficking.
  • Make states financially responsible for early releases of violent offenders. Under this provision, also known as "Aimee's Law", if a state releases a murderer, child molester or rapist before serving 85% of his or her sentence, or before his or her jail term passes the national average for the offense, the original jailing state must pay for the new investigation and incarceration if the offender later commits the same crime in a different state. The bill was named after Aimee Willard of Brookhaven, Pa., a student at George Mason University in Virginia. She was murdered in 1996 by Arthur Bomar, who had been released from a Nevada prison after serving 12 years for a prior murder.

Leading questions, anatomical dolls, may be used to develop a child's testimony
October 3, 2000
U.S.A. v. Archdale
(99-30297)
U.S. District Court, 9th Circuit

Appellant Wallace Archdale lived with Grace Devereaux, their four sons, and her daughters J.K. and Timberly. Grace left home for several days, and left Archdale with the children. J.K., age 12, testified that on two of the nights while her mother was away, Archdale called her into his bedroom and demanded that she perform oral sex on him. She complied. The next night, he touched her breasts and genitals and penetrated her with his penis. When Grace returned, J.K. told her mother what Archdale had done to her. Archdale was indicted on one count of sexual abuse of a minor and one count of engaging in abusive sexual contact with a minor. At trial, J.K. had difficulty talking about what happened to her. As a result, the prosecutor used leading questions and anatomical diagrams to assist her in her testimony. A jury convicted Archdale on both counts of the indictment.

Archdale appealed the decision contending that the district judge improperly permitted the government to ask leading questions. The Ninth Circuit Court ruled that the use of leading questions on direct examination of a child witness may be used as to develop the child's testimony. In addition, the court may permit a child to use anatomical dolls, puppets, drawings, mannequins or any other demonstrative device the court deems appropriate for the purpose of assisting a child in testifying. Archdale's conviction was upheld.

Michigan Judge Issues Landmark Decision against Husband for Spousal Abuse
October 17, 2000

In what is being hailed as a landmark decision by women's rights advocates, Judge J. William Callahan of the Wayne County Third Judicial Circuit Court, Family Division, issued a divorce ruling wherein the Judge found $150,000 in damages against the husband for spousal abuse. When it became clear that there were insufficient marital assets to pay this judgment, Judge Callahan awarded the wife alimony for life plus 100% of the marital estate including the husband's pension and 401k. Callahan commented: "Batterers have systemic immunity ... The legal system is failing people ... and the party that suffers is the victim. I want the victims of domestic violence to know that they can do more than just seek a divorce from a partner who abused them."

Louisiana Appeals Court rules trial court erred in refusing to apply Post-Separation Family Violence Relief Act in custody case
November 3, 2000
Lewis v. Lewis
, Docket No. 34,031-CA,
Louisiana Second Circuit Court of Appeal
The decision is available in its entirety at: <http://www.lacoa2.org/34031ca.PDF>

The appellant, Lisa C. Lewis, filed a petition for divorce, domestic abuse assistance, child custody, child support, and spousal support against her former husband, Mark Shannon Lewis. In that pleading, Ms. Lewis detailed the wide-range of abuse that she has suffered at the hands of Mr. Lewis, including broken bones. Mr. Lewis admitted at trial that he was abusive to Ms. Lewis on more than occasion she had to go to the hospital. However, he claimed the Ms. Louis also physically abused him. Although the trial judge made a finding that Mr. Lewis had been abusive towards his wife, he awarded joint custody, designating Mr. Lewis as the primary domiciliary parent for both children. Ms. Lewis was ordered to pay $250 per month in child support.

Ms. Lewis appealed arguing that the trial court erred in failing to apply the provisions of the Post-Separation Family Violence Relief Act, La. R.S. 9:364(A) states the following:
There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.

The Appeals Court stated that Mr. Lewis' history of perpetrating family violence, mandated application of the Post-Separation Family Violence Relief Act, and the trial court erred in refusing to do so. The Act only requires one serious act of violence resulting in serious injury, to create a rebuttable presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The evidence shows multiple instances of uncontroverted serious violent acts inflicted by Mr. Lewis upon Ms. Lewis during the marital relationship. Ms. Lewis rebutted all of the acts of minor physical violence that Mr. Lewis claimed that she committed against him. Ms. Lewis was awarded custody of the children and Mr. Lewis was allowed supervised visitation.

Georgia Appeals Court Rejects Psychiatric Privacy Claim
November 28, 2000
Karpowicz v. Hyles, No. A00A1731
Georgia Court of Appeals

The Georgia Court of Appeals ruled that a defense lawyer can obtain the psychiatric records of the victim in a criminal case. In his representation of an alleged rapist, defense lawyer Stephen Hyles subpoenaed the psychiatric records of Riann Karpowicz, a woman who alleged she had been falsely imprisoned and raped by the defendant. The records showed that Karpowicz had been admitted to the hospital for ``excessive lying." At the trial, Hyles introduced portions of those records to impeach Karpowicz's testimony. The jury deliberated for less than an hour before acquitting the defendant. Karpowicz and her mother sued Hyles, claiming, among other things, that the lawyer had invaded Riann's fundamental right to privacy by subpoenaing her psychiatric records. The Georgia Court of Appeals did not find that Riann's right to privacy had been violated in this case.

Statements defendant made to a court-appointed psychologist ruled inadmissible at trial
December 19, 2000
Commonwealth v. G. P.
Pennsylvania Superior Court

During a Children and Youth Services (CYS) mandated psychological evaluation, a man accused of sexually abusing his stepdaughter made self-incriminating statements regarding what he perceived to be the victim's sexual aggressiveness towards him. The defendant saw the physician only for an evaluation under court order and never received treatment from the psychologist. His inculpatory statements were used against him at trial and he was convicted for the abuse of his stepdaughter. The abuse started when she was 4 years old.

The Defendant appealed, arguing the statements he made to the court appointed psychologist should have been excluded on the basis of the psychotherapist-patient privilege. On appeal, the Pennsylvania Appellate Court noted that although the defendant's statements could have been used in the CYS procedure, the defendant's rights were violated because counsel was not present when he made the statements, and he was not informed that his statements could be used in the criminal trial.

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