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Legal Update 2001

High court rules that multiple personality diagnosis was unreliable, properly barred
State of West Virginia v. Carl E. Lockhart, No. 27053, W.Va. Sup. App. February, 2001
West Virginia Supreme Court of Appeals

The question of whether West Virginia recognizes Dissociative Identity Disorder (DID) as a basis for an insanity defense presented a question of law that the high court reviewed de novo. The West Virginia Supreme Court of Appeals found no reason why expert testimony related to DID should not be admitted in an appropriate case; however, admissibility must be evaluated on a case-by-case basis.

Defendant Carl Lockhart was convicted of first-degree sexual assault, battery and burglary after the trial court refused to allow a psychologist to testify that defendant Carl Lockhart suffered from DID. Lockhart appealed and argued that the trial court erred in refusing to permit him to present an insanity defense based upon DID, a condition which he claimed prevented him from knowing his crime's wrongfulness.

The Court of Appeals noted at least three possible approaches to analyzing DID to determine whether it resulted in the inability of a defendant to appreciate the wrongfulness of his or her act or to conform his or her act to the requirements of the law: (1) the Alter theory , which requires a determination of which personality committed the offense and an examination of that personality's state of mind at the time of the offense; (2) the Unified theory , which is based upon the premise that, regardless of the number of personalities involved, one body equals one person and it is that one person's mental state that is at issue; and (3) the Host theory , which maintains that if the host was unaware of an alter's actions and had no ability to stop the alter, so the host is not criminally responsible.

According to the Court, a DID diagnosis by itself provides an insufficient foundation to support a DID/insanity defense. The testimony of Lockhart's psychological expert was properly barred because the expert could not determine which of Lockhart's personalities was in control or even how many took part in the crime, and thus was unable to express an expert opinion regarding Lockhart's mental state at the time of the crime or satisfy any of the three DID theories.

Jury Finds Mother Guilty in Rape of Daughters
February 8, 2001
Massachusetts Superior Court, Hampden County

Justina M. Talbot of Holyoke , MA was found guilty in Hampden Superior Court of child rape and could be sentenced to life in prison. The jury deliberated for just a few hours before finding Talbot, 38, guilty of two counts of forcible child rape and two counts of indecent assault and battery of a child. The jury determined that Talbot was a "joint venturer," who aided her boyfriend, Fernand R. Daviau, in sexually abusing her two daughters. Daviau is currently serving a life term in prison following his December 1999 conviction on child rape.

Assistant District Attorney Linda Pisano said Talbot encouraged and allowed Daviau to molest and rape her daughters, and told the girls Daviau would prepare them for future husbands. Pisano claimed the girls were sexually abused for years until they ran away in 1998 at the ages of 10 and 14.

Plaintiff Allowed to Bring Suit for Child Sexual Abuse that Occurred 30 Years Previously
February 12, 2001
Massachusetts Supreme Judicial Court
Ross v. Garabedian, SJC-08286

The Massachusetts Supreme Judicial Court ruled that a 43-year-old plaintiff could sue his alleged perpetrator for sexual abuse alleged to have occurred nearly 30 years earlier.

From approximately 1968 to 1971, the plaintiff, then thirteen years old, was sexually molested by the defendant, then twenty-seven years old. The sexual contact produced feelings of guilt and shame in the plaintiff and when he was approximately fifteen years old, the plaintiff ended the relationship. During the next 30 years, plaintiff experienced numerous failed relationships and suffered from psychological and emotional difficulties. In 1978, he participated in several sessions with a therapist for problems he was having with his girl friend. In March, 1996, the plaintiff entered into psychotherapy with a different therapist, and was found to be suffering from PTSD. During the course of therapy, he became aware of the possibility of some connection between the sexual abuse and some of his presenting symptoms. The therapist testified that the plaintiff's inability to "link" psychological harm to the defendant's conduct stemmed from "unconscious coping or blocking mechanisms" commonly found in victims of sexual abuse.

The Defendant claimed that the suit was barred by the three-year statute of limitations because the plaintiff should have reasonably discovered there was a connection between the sexual relationship and his emotional problems a decade before filing suit. A Superior Court judge ruled that the statute of limitations barred the plaintiff's suit, and granted summary judgment for the Defendant.

The Massachusetts Supreme Judicial Court reversed, saying that it was unclear when the statute of limitations began running. In their opinion the Court noted ``A rational finder of fact could find that the plaintiff, a teenager at the time, felt shame or a sense of wrong because his conduct was contrary to accepted church or family morals, but he was not aware that he had suffered any appreciable or legally recognizable "harm." Consequently, a jury and not a judge should decide as a question of fact whether a plaintiff "knew or should have known" that the abuse he suffered as a child was "causally connected" to injuries the victim was experiencing as an adult. The Court noted that summary judgment might still be available to the defendant if it could be shown that at the time of the 1978 therapy sessions, the plaintiff was aware that the problems in his relationship were "causally connected" to the defendant's conduct.

Court overturns conviction after juror recovers abuse memory
March 2001
Colorado, State Court of Appeals

The state Court of Appeals ordered a new trial for Norman Mark Suazo, who was convicted in 1996 in Weld County District Court for sexually assaulting a child. A juror alleged that during deliberations the jury forewoman had revealed that she had been sexually assaulted as a child. The juror claimed he and another juror had changed their votes from not guilty to guilty because of the foreperson's statements.

The trial court held a hearing, and the jury forewoman told the court that during jury deliberations, she remembered an incident that had occurred 58 years earlier when she was about 5 years old, when an ``old man" had attempted to put his hand inside her underwear. The forewoman testified that she became distraught and disclosed to the other jurors that she had been sexually abused as a child. The trial court found that the forewoman's failure to disclose the attack was inadvertent and harmless.

Suazo appealed. The appeals court said even though the disclosure may have been inadvertent, it prejudiced the defendant's ability to exercise his peremptory challenges and ordered a new trial.

Parent can be sued for sexual abuse
March 15, 2001
Florida Supreme Court.
Herzfeld v. Herzfeld, No. SC95054

The Florida Supreme Court ruled that a teenage boy's lawsuit against his adoptive father for sexual abuse is not barred by "parental immunity." The Court ruled that, ``When a parent perpetrates such a crime upon his or her child, that act constitutes a breach of duty owed not only to the child, but to the public at large, and there is no reason to immunize such conduct from a civil action in damages merely because of the familial relationship." According to the Court, "the fear of disrupting the fabric and nucleus of families by allowing actions based upon intentional sexual abuse simply appears to be without merit."

Jury awards family millions in false memory case
Sawyer v. Midelfort, 96CV000381, March 16, 2001
Wisconsin Circuit Court

A jury ordered therapists and an insurance company to pay $5 million in damages to the family of Nancy Anneatra for making her falsely believe that she had been abused by her relatives. Anneatra accused her parents and brother of physically and sexually abusing her as a child. She died of cancer without recanting her allegations. After her death, the family sued her therapists for damages caused by her accusations.

Anneatra, then Nancy Sawyer, received counseling in 1984 from Lausted and a psychiatrist not named in the lawsuit. She was in her 20s at the time. After a year of treatment, she accused her parents of physically and sexually abusing her as a child. The Sawyers denied the abuse, but the daughter severed all ties with them and changed her name to Nancy Anneatra. She worked as an elementary school teacher in Eau Claire , Wisconsin . In 1987, she was treated by Midelfort, and a year later she sued her parents for civil damages for the alleged abuse. The suit was dismissed. She continued receiving therapy until she died in 1995.

In 1996 Delores and Tom Sawyer filed suit in Eau Claire County Court, alleging that the therapists implanted false memories. After their case was dismissed, the family appealed and eventually the case made it to the state Supreme Court (Sawyer v. Midelfort, 595 N.W.2d 423 (Wisc. 1999). The Wisconsin Supreme Court ruled that Anneatra's parents had a right to seek damages for the pain caused by their daughter's accusations.

The Eau Claire County jury found Anneatra's claims of childhood sexual abuse were grounded upon false memories implanted by Lausted and reinforced by Midelfort. The jury held Midelfort 80 percent responsible and Lausted 20 percent. The case opens the door for similar third-party lawsuits in the state.

New trial ordered in recovered-memory case
Commonwealth v. Frangipane, SJC-08359, decided March 20, 2001
Massachusetts Supreme Judicial Court

The Massachusetts Supreme Judicial Court ordered a new trial for a William Frangipane, a Middlesex County man convicted of raping a 14-year-old boy who did not recall most details of the assault until five years after it allegedly occurred.

Frangipane was a school bus driver hired in 1991 to take a church youth group to a night-time hay ride in Tewksbury . The Plaintiff alleged that Frangipane raped and fondled him during the event. He reported the fondling to his parents the next day, but did not describe the anal rape as he had no memory of it. His family decided not to prosecute Frangipane. It was not until he was a freshman in college that he recalled the alleged rape and contacted the police. At the criminal trial, an expert testified that it is not uncommon for victims of sexual abuse to repress some or all of a memory and recover it years later.

In a unanimous ruling, the Supreme Judicial Court said that the defendant is entitled to a new trial because the social worker used as an expert witness by prosecutors strayed too far from her expertise. The social worker testified to the neurology of how trauma victims store memories in the brain, evidence that the court ruled should have come from a medical doctor. In addition, the Court held that the concept of ''recovered memory'' is controversial and that the trial court may need to conduct a Daubert hearing to establish the reliability the science related to "dissociative memory loss."

Judge allows rape-by-phone charge
March 30, 2001
New Jersey, state court

In a ruling believed to be the first of its kind in the country, a New Jersey judge ruled that a man who called a 10-year-old girl and told her to perform a sex act on herself can be charged with first-degree rape. Although James Maxwell, 50, never met the girl, in June 1999 he allegedly called her on the phone. While pretending to be her mother's gynecologist, Maxwell instructed the child to girl to penetrate herself with her hand. The girl did not disclose the incident, until after Maxwell called a second time in September 1999. The girl then told her mother, who used a phone company feature to identify the number, which was traced to Maxwell.

Maxwell also allegedly made obscene phone calls to 10 other girls in the area. Maxwell apparently chose his victims by leafing through local free newspapers and picking girls who appeared in feature stories. Maxwell taped his conversation with the 10-year-old girl, which was seized by police, along with pornography created by pasting pictures of young girls' heads onto the bodies of adult women in pornographic poses. In the tapes, Maxwell can be heard using his status as a "doctor" to coerce the girl to continue when she objected.

Maxwell was charged with aggravated sexual assault under a section of the law that includes a sex act perpetrated "upon the actor's instruction." Maxwell's lawyer has argued that the Legislature intended for the charge to be filed only in cases in which the victim and defendant were physically together. He is considering an appeal. If upheld, the ruling has potential implications for Internet child sex abuse cases.

Child in incest is always the victim; Minor can't be held complicit even if sex act consensual
April 26, 2001
California Supreme Court

The California Supreme Court overturned a controversial appellate court ruling that found a teenage girl to be an accomplice to the crime of incest when she had a sexual relationship with her father. The California Supreme Court ruled the burden is on the adult to refrain from having sex with the minor and that a minor who has consensual sex with a parent cannot be an accomplice to the crime.

In July 1995, Joel Robert Tobias' 16-year-old daughter moved into his apartment with her infant daughter. The teenager, identified by the court as "V." had been living with her mother and said she wanted to get to know her father. Within a few weeks, the father and daughter began having sex.

V. said she didn't want to have sex with her 38-year-old father, but admitted that he didn't force her. She said she continued to live with him because, in other respects, ``he was a good father." After six months, she moved out. She gave birth to a baby a few months later, and tests showed Tobias was the father.

Tobias, who had a prior conviction for performing a lewd act on a child, was convicted of incest and sentenced to 18 years in prison. Tobias appealed, claiming the trial judge should have cautioned the jury about V.'s testimony because she was an accomplice to the crime. A state appeals court agreed with Tobias' argument, although the justices upheld his conviction, finding that there was ample evidence supporting his daughter's testimony.

In a unanimous decision, the state Supreme Court overturned the appellate court decision saying that it went against 75 years of consistent law. The court noted that there is a heavy stigma associated with incest, and if a child could be charged, the parent could use that threat to keep the minor from reporting the crime.

Crack-using mother convicted of killing unborn child
May 2001
South Carolina

A South Carolina jury found 24-year-old Regina McKnight guilty of homicide, and sentenced her to 12 years in prison for killing her unborn child by using crack cocaine during her pregnancy. The baby was still-born at 35 weeks gestation. The court held that a viable fetus is a person under the state's criminal code. An advocate for the defendant claimed the verdict marks the first time a woman in the United States has been found guilty of homicide for taking drugs during pregnancy.

Religious mother loses custody to 'pedosexual' father
May 2001
Nevada, Family court

The Las Vegas Review-Journal recently reported a child custody case involving two kindergarten-aged boys who were taken from their mother, an active member of the Apostolic Church , and placed under the custody of their father, whom the Court's independent expert described as a man with "a history of sexually deviant behaviors."

When the couple initially filed for divorce, Clark County Family Court Judge Robert Lueck awarded temporary primary custody to the father. Later, when Lueck learned of the father's prior history of child molestation charges (he was never convicted) and awarded custody to the mother without paternal visitation rights for the father. Last March, Lueck again reversed custody after hiring a psychologist to evaluate the family.

The psychologist was concerned with the mother's church attendance three times a week, which sometimes kept the boys up until 10 or 11 p.m. The psychologist felt this accounted for the boys' absenteeism and tardiness at school. Although, it was noted that the father "has a history of sexually deviant behaviors that involved multiple incidents of pedosexual activities with young females," the psychologist noted that he has a "warmer" personality than the mother. According to the psychologist, his ongoing fascination with pictures of naked little girls was a mere "interest in nudism" which "is not illegal and is culturally acceptable in some parts of the world."

Deadbeat father may be required to refrain from having more children
May 1, 2001
Wisconsin Supreme Court
State v. Oakley, 2001 WL 767556 ( Wis., May 1, 2001)

The Wisconsin Supreme Court has upheld a trial court ruling that a father who has refused to support his nine children may be required to refrain from having another child as a condition of his probation, until he can prove that he is able to support it, in addition to his current children.

David Oakley pleaded no contest to three of seven counts of refusing to support the nine children he has fathered with four different women. The plea was based on an agreement that allowed the prosecution to seek a six-year prison sentence. Instead, circuit court judge Fred Hazlewood sentenced Oakley to three years in prison for the first count, imposed and stayed an eight year prison term on the other two counts, and imposed a five year probation period following his incarceration. Hazlewood made refraining from more children as a condition of his probation. An appellate court affirmed and Oakley appealed to the Wisconsin Supreme Court.

The Supreme Court held that although the probation condition infringes upon Oakley's fundamental right to procreate, it is constitutionally permissible because it is not overly broad and is reasonably related to the goal of rehabilitating Oakley. The condition expires at the end of his probation, and leaves Oakley with the opportunity to further procreate if he is able to provide for all of his offspring. The alternative to the probation condition is for Oakley to serve an eight-year prison sentence, which would more substantially burden his right to procreate. Thus, the probation condition was the less punitive option.

Abused foster children win case
May 25, 2001
Illinois; Federal court
Mabel A. v. Woodard, No. 97 C 1634 (N.D. Ill.)

A Chicago jury has ordered a social worker to pay $3.3 million to three children who were abused in foster care. The jury found that the worker's failure to report or to stop the abuse amounted to a violation of the children's rights to due process.

Witnesses testified that the two younger children - a 1-year-old girl and her 3-year-old brother - were beaten daily while living with their aunt, Cornelia Anderson, and her boyfriend, Perry Robinson.

Woodard claimed to have been visiting the children twice a month and said he never noticed anything wrong with the children. The 10-year-old girl and a cousin who also lived in the home testified that they saw the caseworker at the apartment once during the five months the abuse occurred. There was no paperwork supporting Woodard's claims of visits.

The abuse continued until August 1995, when the injuries were discovered and the children were hospitalized. The younger children suffered from malnutrition, and the 10 year old suffered emotional damage from witnessing the abuse. Robinson was sentenced to 15 years in prison and Anderson to 10 years for aggravated battery.

The lawsuit was filed against Woodard on behalf of the children by the Cook County Public Guardian, which represents children -- including those abused or neglected -- in juvenile court. The attorneys filed the action in federal court, citing 42 U.S.C. 1983. The children could not sue the state agency in federal court because the state has immunity, so they sued the individual caseworker. However, the verdict, if sustained, is to be paid by the Illinois Department of Children and Family Services, under indemnification provisions.

Judge overturns conviction of multi-personality defendant
June 8, 2001
Washington State, Federal Court, 9th U.S. District

A federal judge threw out the kidnapping and sexual assault convictions of a man who had argued he was not responsible for those crimes because another of his 24 separate personalities had committed them. William Bergen Greene, 47, was sentenced to life in prison under Washington's three-strikes law, after a Snohomish County judge barred the multiple personality defense.

Greene was convicted of attacking his mental health counselor when she came to check on him at his apartment in April 1994. He held her there for several hours, touching her sexually, then tied her up and fled in her car. Greene never denied being physically present for the crime, but instead argued he could not be held responsible because the crime actually was committed by one of his other personalities, a 4-year-old child.

Before trial, prosecutors argued Dissociative Identity Disorder was too controversial among psychiatric experts to be admitted as valid, scientific evidence. The judge agreed, and no experts were allowed to testify about the disorder, including the therapist who wanted to testify for the defense. Greene was sentenced to life in prison without possibility of release because he has five prior felony convictions.

In 1999, the state Supreme Court upheld that decision, ruling that jurors would not have been assisted in determining guilt because science doesn't yet understand multiple personality disorder well enough to talk about the sanity of people with that diagnosis, or the sanity of their purported alter personalities.

However, U.S. District Judge Marsha J. Pechman in Seattle ruled that it was up to the trial court to clarify the question for jurors by establishing standards for assessing legal responsibility. "Given the importance of his disorder to his defense, the testimony about it was of great significance to Greene."

The state plans to appeal the ruling to the 9th U.S. Circuit Court of Appeals. Greene will remain behind bars at the state penitentiary in Walla Walla , pending a federal appeal.

Sexual-abuse victim granted $1.4M award
June 12, 2001
Connecticut, state court

A Superior Court judge has awarded nearly $1.4 million to Karma Smith, for sexual abuse that started as early as age 12 and caused long lasting physical and psychological problems.

Judge D. Michael Hurley found that the defendant, Darryl Scott of Ledyard, had committed "outrageous sexual abuse." The abuse by Scott, a family friend nearly 15 years her senior, led to Smith contracting sexually transmitted diseases at an early age, having two abortions before age 15, and two children by Scott. Scott, for the most part, didn't dispute Smith's accounting of events,

Smith, who was an athlete and cheerleader before dropping out of school in her sophomore year, has had difficulties holding jobs and has spent time on welfare.

The judge found that Smith, now 31, suffers from a lack of educational and employment opportunities as well as an inability to develop adult, loving relationships due to sexual abuse she endured as a child.

Court allows third-party suit against therapists
June 19, 2001
Wisconsin, State Supreme Court
Johnson v Rogers Memorial Hospital

The Wisconsin Supreme Court ruled that parents who claim that their daughter falsely accused them of sexual abuse after getting psychotherapy treatment can sue the therapists and a Waukesha County hospital.

The Johnsons filed a medical malpractice suit in May 1996 in Dane County Circuit Court against Rogers Memorial Hospital and therapists in Madison and Oconomowoc. They alleged that after their daughter began psychotherapy treatment in 1991, she falsely accused them of physically and sexually abusing her as a young child. According to court records, Charlotte Johnson ceased any relationship with her parents and still believes that they abused her.

After their lawsuit was thrown out by Dane County Circuit Judge Daniel Moeser, the Johnsons appealed. Wisconsin 's 4th District Court of Appeals in Madison ruled that the suit could not proceed because it would violate Charlotte Johnson's right to confidentiality in a therapist-patient relationship.

Saying "further development of the factual record is necessary" before a decision can be made regarding Charlotte Johnson's confidentiality rights, the Supreme Court ruled that the Johnsons have a right to proceed with their lawsuit and sent the case back to Circuit Court for trial.

Juveniles convicted of sex offenses before age 14 allowed to clear record
July 2001
New Jersey Supreme Court

New Jersey ' s Supreme Court last week gave juveniles convicted of sex offenses before age 14 the right to clear their records when they reach 18 in order to avoid Megan' s Law sanctions. Megan' s law requires that the public be notified when sex offenders are released into the community. The unanimous ruling upholds the constitutionality of subjecting juveniles to the strict public-notification requirements of Megan' s Law. It also confirmed that perpetrators bear the burden of proving that they pose no further threat to society.

"Making a CPS Referral: A Guide for Mandatory Reporters"
New Department of Social and Health Services video available on the Internet
July 2001
www.wa.gov/dshs/ca/ca2hp.html

It is not always easy to verify the elements of child abuse; however, unreported suspicions of abuse can endanger the lives of children. A new video available on the Department of Social and Health Services (DSHS) web site provides guidance on determining when to file a report with Child Protective Services (CPS). The video can be screened or downloaded from the DSHS website.

New standards for hospitals take effect
July 1, 2001
Joint Commission on Accreditation of Healthcare Organizations (JCAHO

A 1999 Institute of Medicine report estimates that medical errors kill between 44,000 and 98,000 hospital patients annually. JCAHO, a non-profit group that accredits 80% of the nation's hospitals, released new standards that hold hospitals accountable for a higher level of patient safety. New patient safety standards require hospitals to initiate specific efforts to prevent medical errors and to tell patients when they have been harmed during their treatment.

Under the new standards, a hospital could get in more trouble for not looking for errors than by committing them. The standards are designed to promote open discussion and review of errors so that fixes can be found and applied.

The new standards can be found online at: http://www.jcaho.org/standards_frm.html

Hawaii legislature raises age of sexual consent
July 10, 2001

Hawaiian lawmakers enacted a law raising Hawaii 's age of sexual consent from 14 to 16, defeating a gubernatorial veto for the first time since Hawaii became a state. Democratic Governor Ben Cayetano had vetoed the law saying that it was poorly written and that the penalties are too harsh.

The law prohibits all sexual contact with minors ages 14 to 16 years and anyone more than five years older, unless the parties involved are married. Offenders can be charged with first degree sexual assault and sentenced up to 20 years in prison. The law expires in 2003, with a provision for a task force to study the issue of sexual consent and report to lawmakers at that time.

Arizona Court backs law putting sex offenders in hospital
July 12, 2001
Arizona Supreme Court

The Arizona Supreme Court upheld a controversial law that sends certain sex offenders to the state mental hospital indefinitely for treatment after they have served their prison sentences. The decision overturns an earlier Arizona Court of Appeals ruling that said the law was unconstitutional because it did not require proof that the men could not control their sexual urges. The court held that psychological testing, coupled with past sexual behavior, narrows the number sent for treatment to the most dangerous and does not violate their rights.

Woman fired due to abuse is eligible for unemployment insurance
July 20, 2001
York State

The precedent-setting decision holds that that an employee does not commit misconduct when she misses work because of reasons related to domestic violence or child custody disputes, and therefore remains eligible for unemployment insurance.

The claimant was fired from her job in March 2001 because she missed work too often. Almost all of her absences were related to doctor' s appointments and hospitalizations for psychological injuries due to domestic violence or child custody hearings. The New York Department of Labor initially denied her unemployment insurance benefits because it found that she was fired for "misconduct." Judge Andrea Addison reversed the Department of Labor' s determination, noting that the claimant gave "uncontroverted and credible testimony" about her situation and ``had compelling reasons for her absences and reasonably notified her employer."

See also: "Employment Rights for Survivors of Abuse" fact sheets available at http://www.nowldef.org/html/issues/work/ersastart.shtml

Boy, 6, is ordered to stay overnight with mother, a killer
August 2001
Nebraska

Kimberly Faust is seeking a contempt citation against her former husband, Bruce Faust, accusing him of violating the visitation terms agreed upon in their divorce. She is serving two life terms for killing two people, including the girlfriend of her former husband and a bystander who tried to help the victim. Bruce Faust has custody of their two sons, ages 6 and 11.

At the Nebraska Correctional Center for Women in York , children up to 8 are allowed to spend nights with a parent. As part of their July divorce settlement, Bruce Faust is supposed to let the boys visit their mother every other week from Friday afternoon to Saturday evening. Both boys have made several day visits but have not stayed overnight. District Judge Randall Rehmeier warned Bruce Faust that he could go to jail if he is found in contempt for violating the divorce decree.

California sues Texas for extradition of children, custody to go to sex offender
August 3, 2001

The state of California filed a lawsuit in federal court seeking to force Texas Gov. Rick Perry to extradite Debra Schmidt, who hid her daughters from their father, a convicted sex offender. Manuel Saavedra, pled guilty in 1992 to lewd conduct with a 13-year-old girl, Schmidt' s niece. He served 30 days in jail. His lawyer has said the incident was blown out of proportion and that Schmidt pressured her husband to plead guilty.

After years of legal battling, he won custody of the children in 1999 through a California court. The court did not consider Saavedra' s sexual-assault conviction a problem, his lawyer has said, because his counselor reported that he would not be a threat if he abstained from alcohol. Schmidt, 42, hid the girls instead of returning to California . The court said Schmidt had illegally fled the state to avoid letting the father have visits with the children, had falsely claimed Saavedra raped her, and was alienating the children from their father. Schmidt was charged with two counts of child abduction and spent three weeks in jail last year before taking the girls out of hiding and allowing them to be placed in foster care.

Although the Uniform Child Custody Jurisdiction Enforcement Act requires states to honor one another' s court orders, a Texas judge refused to return the girls, saying California had not considered their best interest.

Rape victim not allowed to argue in court for the imprisonment of her rapist
August 24, 2001
Supreme Judicial Court, Massachusetts

According to a ruling by a justice of the Massachusetts Supreme Court, a rape victim doesn't have the right to argue in court for the imprisonment of her rapist, even though he was never forced to serve his 1988 sentence.

Debra Hagen was raped by a male relative in a Worcester cemetery in 1985. When James J. Kelly was arrested he denied having sex with Hagen , but later told police that they had consensual sex. Kelly was convicted of rape and sentenced to 10 years in state prison. However, he has been allowed to stay out of prison since 1988 because he argued he was ill and was appealing his conviction.

Hagen asked Justice Francis Spina of the Supreme Judicial Court to allow her to participate in the case against her rapist. She said prosecutors hadn' t been forceful enough in arguing that Kelly should go to jail. Judge Spina acknowledged that Kelly, now 72, has not yet done time for his conviction. But, he wrote, " the victim is not a party to the proceedings and she has no judicially-cognizable interest in the prosecution of another."

Decision favoring murder suspect sets precedent
August 24, 2001
Kansas, Rice County District Court

A Rice County judge has awarded custody of a 5-year old girl to her father, who is charged with first-degree murder in the June 26, 2000 slaying of the child's mother. Rice county District Judge Don Alvord initially granted custody to the girl's maternal grandparents. However, the decision was overturned on appeal. A Kansas Social and Rehabilitation Services attorney said that state child custody law affords Corbett the presumption of innocence and that the charge against him is considered insufficient under Kansas law to cost him custody of his daughter.

Teacher has no privacy interest in his reputation
October 10, 2001
Manion v. Sarcione
Pennsylvania, U.S. District Court

U.S. District Judge Harvey Bartle III dismissed a civil rights suit brought by a Catholic high school teacher accused of a sexual assault by a female student. The plaintiff, John Manion, a teacher at Bishop Shanahan in Downingtown , Pa. , says he was falsely accused.

The teacher sued the investigating detective for writing a letter to the school' s principal that said he had determined that Manion's conduct was ``improper" and that the student's description of the event was "credible." The letter went on to say that ``Manion's conduct, while inappropriate, did not meet the requirements for a criminal charge of simple assault or related sexual offense."

In his suit, Manion claimed the letter defamed him and invaded his privacy. Under Section 1983 of the Civil Rights Act, he claimed that the letter violated his 14th Amendment rights to procedural and substantive due process. Judge Bartle found that the 14th Amendment "only protects against deprivation of life, liberty and property. It makes no mention of reputation. . . . Damage to reputation, unaccompanied by some tangible loss such as termination of employment, does not constitute a loss of liberty or property."

Court upholds protection for victims of domestic violence
October 17, 2001
U.S. v. Emerson
U.S. Court of Appeals for the 5th Circuit

In 1998, Timothy Joe Emerson, while subject to a court order prohibiting him from harassing, threatening or attacking his estranged wife, pulled a gun on her and their four-year old daughter and told friends and the police that he planned to kill his wife. Emerson was indicted under the Domestic Violence Protective Order Gun Ban only after he told police of his murderous plans. The landmark 1994 statute prohibits people subject to most court issued restraining orders from carrying guns. The District Court threw out the indictment, claiming that the statute violated the defendant' s Second Amendment "ight to bear arms."

The U.S. Court of Appeals for the Fifth Circuit reversed and, like every other federal court in the country to address the issue, upheld the Domestic Violence Protective Order Gun Ban. The Court held that victims of domestic violence should not be forced to face the ongoing threat of gun violence after a court has issued a restraining order against their attackers.

Vatican ratifies child soldier, prostitution pact
October 24, 2001

The Vatican ratified two amendments to a treaty that would stop the use of child soldiers and protect children from sexual abuse. The amendments, called optional protocols to a 1990 landmark treaty on the rights of children, prohibit the use of child soldiers and outlaw child prostitution, sexual slavery, child pornography and forced labor.

The Convention on the Rights of the Child is the most widely approved treaty in the U.N. history, with ratifications from 191 countries. The United States and Somalia are the only countries that have not ratified the treaty.

Property management company agrees to end housing discrimination against battered women.
November 5, 2001

Tiffanie Alvera's landlord attempted to evict her from her home under a "zero-tolerance against violence" policy in which all members of a household-including victims-are evicted if there is any violence in the apartment. According to the federal sex discrimination lawsuit, Alvera was served with a 24-hour eviction notice after she informed the management of her government-subsidized apartment that she had obtained a temporary restraining order against her husband after he attacked her in their apartment. Alvera said she suffered a concussion and a fractured cheekbone.

The lawsuit was brought on Alvera's behalf, by the U.S. government, Legal Aid Services of Oregon and the Oregon Law Center , along with attorneys from the American Civil Liberties Union' s Women' s Rights Project and NOW Legal Defense and Education Fund. The plaintiffs charged that the owner's `no-violence' policy was clearly sex discrimination as most victims of battering are women.

U.S. judge rejects class-action lawsuit on behalf of foster children in Florida
December 5, 2001

Florida 's rate of abuse in foster care - about one in every 11 children is 15 times higher than the national standard. The rate of abuse has gotten worse in the last three years according to an analysis of the government documents by the Florida Times-Union. Tallahassee attorney Karen Gievers described the foster-care system as the worst ``abuser, neglecter and exploiter of children in Florida ." She and other child advocates hoped to force sweeping changes in the state's foster-care system by filing a class-action lawsuit on behalf of about 20,000 children in state care in Florida .

U.S. District Judge Federico Moreno dismissed the suit ruling that that federal oversight of Florida 's child-welfare system was unnecessary because individual state court judges had the power to protect and order services for children under their jurisdiction. "The relevant question is not whether the state courts can do all that [advocates] wish they could, but whether the available remedies are sufficient" to protect children in state care. "This court declines to hold that the allowable remedies are inadequate."

Carolyn Salisbury, associate director of the University of Miami Law School's Children and Youth Law Clinic and a member of the legal team working with Gievers -- said Moreno's ruling is flawed because it assumes children can be protected by dependency court judges, even though the overwhelming majority of foster children are not represented by lawyers. "In most cases, the child stands alone before a juvenile court," she said. "The DCF attorney stands in opposition to that child. How can a little child possibly vindicate his or her rights when the state is represented by a lawyer, and he or she has none?"

Supreme Court opens child protection hearings statewide
December 26, 2001
Supreme Court, Minnesota

People interested in how Minnesota courts protect neglected or abused children will soon be free to walk into hearings in and watch. The Minnesota Supreme Court ruled that the traditionally secret hearings and records should be opened throughout the state beginning July 1. Chief Justice Kathleen Blatz spearheaded the move to open the cases based on the presumption that government should function openly.

Opponents feared that airing family secrets would do more harm to children than good, especially in small communities. Proponents of opening the hearings argued that it could bring public attention to the child protection system and garner support for it. A pilot project showed that the media and others paid little attention to most hearings and that opening them caused no significant harm to children. The study also found that extended-family members had more access to hear information first-hand and offer support and that those involved in the system seemed more prepared for court hearings.

Under the order, judges will still be allowed to close hearings if they find "exceptional circumstances," and files will be kept under the names of parents or legal guardians, not the names of children. An advisory committee will monitor the open hearings and recommend revisions. Under the order, the public won't have access to medical reports, psychiatric evaluations, the names of people who report abuse, and some other records.

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