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Legal Update 2004

Judges have the right to toss out speculative expert witness testimony
January 8, 2004
California Court of Appeal, 4th Appellate District Division
Jennings v. Palomar Pomerado Health Systems

The California Court of Appeals ruled that trial judges have the right to toss out expert witness testimony if they believe it is based on speculation rather than fact. The decision upholds a San Diego trial judge's decision to strike the testimony of a physician expert witness. The decision came in a case against a surgeon who had left a retractor in a patient following surgery. The plaintiff's expert testified that a postoperative infection not in the area around the retractor nonetheless may have been caused by the instrument because there was "guilt by association." The trial court struck the testimony concluding that it was based on speculation.

The plaintiff appealed, claiming the testimony should have been allowed. The Court of Appeals affirmed the lower court's ruling, noting that qualifying as an expert does not give the expert a carte blanche to express any opinion within the area of expertise. "An expert's opinion based on assumption of fact without evidentiary support or on speculative or conjectural factors has no evidentiary value and may be excluded from evidence."

Jurors no longer to be instructed not to draw negative inferences from delayed disclosure
February 5, 2004
New Jersey Supreme Court

The New Jersey Supreme Court ruled that jurors in a child sex abuse trial should be allowed to consider whether a child's delay in reporting alleged abuse makes the accusation less credible. The opinion comes in the case of Peter Hong, 52, who in 1999 was sentenced to 20 years in prison after being convicted of sexually assaulting a female relative from 1984 to 1990, when she was between the ages of 6 and 12.  Five years later, when she was being treated for an eating disorder, the girl revealed the abuse to a counselor.

The trial court instructed the jurors not to take into account that the relative waited five years after the last contact with Hong to disclose. Hong appealed and the New Jersey Supreme Court overturned his conviction finding that the judge's instruction to the jury violated Hong's rights. The unanimous decision invalidates the long-standing practice of instructing jurors not to draw negative inferences from an accuser's silence following an alleged sexual assault.

Ex-FBI official pleads guilty to child molestation
February 13, 2004
Tarrant County District Court, Texas

John H. Conditt Jr., 53, the former chief internal watchdog at the FBI was sentenced to 12 years in prison after he admitted molesting the 6-year-old daughter of two FBI agents after he retired. In addition to the recent assault, he admitted that he had a history of molesting other children before he joined the FBI for a two-decade career. Most recently, Conditt headed the internal affairs unit that investigates agent wrongdoing for the Office of Professional Responsibility at FBI headquarters in Washington from 1999 until his retirement in June 2001.

Jury Awards $5 Million for failure to diagnose physical abuse in infant
February 16, 2004
Charles County, Maryland
A jury sided with a couple that sued three doctors for failing to diagnose the abuse of their 11-month-old son in 1998. The boy suffered a more serious injury a month later again while allegedly in the care of the same babysitter. The jury agreed with the parents that the second injury could have been prevented if the doctors had performed a CAT scan and diagnosed the abuse after the first injury. The second injury left the child permanently disabled.

Report: 11,000 Clergy Abuse Claims Filed
February 27, 2004

A national survey of sex abuse claims against Roman Catholic priests between 1950-2002 revealed that about 4% of all American clerics who served during the time studied --4,392 of the 109,694 priests and others under vows to the church-- were accused of abuse. The survey found that more than 80% of the almost 11,000 alleged victims were male and over half said they were between ages 11 and 14 when they were assaulted. Most of the assaults were serious in nature and about half of the children were molested for a year or more. Only 2% of abusers were sent to prison for what they had done.

The survey was overseen by the National Review Board, a lay watchdog panel the American bishops formed, and conducted by researchers from the John Jay College of Criminal Justice in New York . Victim advocates say the survey likely underestimated the number of cases of abuse because it is based on self-reporting by bishops.

HIPAA Security Rule
March 1, 2004
http://securityfocus.com/infocus/1764

Health care providers must comply with the Health Insurance Portability and Accountability Act (HIPAA) Security Rule. The primary objective of the Security Rule is to protect the confidentiality, integrity, and availability of to individually identifiable health information stored or transmitted n electronic form. This includes: (1) an individual's past, present, or future physical or mental health or condition; (2) an individual's provision of health care; or 3) past, present, or future payment for provision of health care to an individual. The final Security Rule became effective as of April 21, 2003. Most health care providers must be in compliance by April 21, 2005; small health plans (those with annual receipts of $5 million or less) have until April 21, 2006.

Evidence of prior, allegedly false, accusation not admissible
March 3, 2004
Oregon Court of Appeals
Oregon v. Paul Lee Driver
After being convicted of first-degree child sexual abuse, the defendant appealed arguing that the trial court erred in excluding evidence that the 9-year-old victim had recanted a previous allegation of sexual abuse against another man. At trial, defendant denied any sexual contact with the victim and sought to impeach her testimony with evidence concerning a prior false allegation of abuse that she had allegedly made to her 6-year-old friend when she was herself 6-years-old. The victim denied making the allegation or the recantation.
On appeal, the defendant argued that the trial court erred in excluding extrinsic evidence to rebut the victim's denial of the prior allegedly false allegation of sexual abuse. The Appeals Court upheld the lower court ruling noting that the defendant has already availed himself of cross-examination and finding that the evidence was inadmissible because its probative value was substantially outweighed by the risk of prejudice, confusion, embarrassment, and delay. In announcing its decision, the Appeals Court held that an earlier decision appeared to create an exception in sex abuse cases based on an assumption that sex abuse victims deserve special scrutiny and have suspect credibility.  To this point, the court wrote that such an assumption "is no longer permitted in our jurisprudence."

Expert testimony of child molesters' pattern of activity allowed
March 5, 2004
U.S. Court of Appeals, 3rd Circuit
U.S. v. Scott Hayward
The defendant was charged and convicted in federal court for transporting minor girls for the purpose of committing sexual abuse. On appeal, the defendant's primary complaint was that the District Court improperly allowed expert testimony from behavioral scientist Kenneth Lanning pertaining to the general profile of an acquaintance molester. The trial judge allowed Lanning to testify to "acquaintance child molesters' pattern of activity," and prohibited Lanning from testifying as to Hayward 's intent. Lanning described the patterns exhibited by many acquaintance child molesters, including selection of victims from dysfunctional homes, formulation of a customized seduction process, lowering the victim's inhibitions about sex, isolating the victim, and soliciting the victim's cooperation in the victimization process. The appellate court upheld this testimony as proper because Lanning never directly opined as to Hayward 's mental state and instead focused primarily on the actions normally taken by child molesters to find and seduce their victims.

Sexual Abuse may occur within "scope of employment" of a priest
March 5, 2004
Connecticut Superior Court, Middlesex
A civil suit against a former Roman Catholic for child sexual abuse included a Count against the Norwich Diocese under the doctrine of respondeat superior. The defendants moved to strike the Count pointing to a relatively long line of cases which hold that, as a matter of law, whenever any Catholic priest sexually assaults a minor, that priest has abandoned his religious institutional employer's business so as to preclude the doctrine of respondeat superior from being invoked for the purpose of imposing vicarious liability on his employer or supervisors.

Denying the defendants' motion to strike this Count, the Connecticut Superior Court held that, in recent years, the number of reported allegations of sexual assaults by priests has risen so dramatically that a contemporary court cannot ignore the dioceses' role. The Court cited recent reports suggesting that "based on survey responses from 97 percent of dioceses (195 dioceses) and from 142 religious communities, representing approximately 80 percent of religions priests across the country . . . the total number of priests with allegations of abuse was 4,392, representing approximately 4 percent of all priests in ministry between 1950-2002."

U.S. Supreme Court disallows hearsay evidence
March 8, 2004
U.S. Supreme Court
Crawford v. Washington, 541 U.S., 124 S. Ct. 1354 (2004)

In a unanimous opinion, the Supreme Court ruled against the use of hearsay evidence that courts had increasingly allowed as exceptions during the past 25 years. The decision reinforced a defendant's right to confront witnesses under the Sixth Amendment of the U.S. Constitution. In overturning the Washington Supreme Court on the Crawford case, the U.S. Supreme Court abandoned its own 1980 ruling, Ohio v. Roberts, which allowed a hearsay witness statement if a judge found it trustworthy.
Legal scholars note that the new ruling would thwart the prosecution of cases in which victims often refuse to testify at trial -- domestic violence and child abuse being prime examples. Previously, Oregon prosecutors handling domestic violence and child abuse cases did not have an absolute obligation to produce a witness at trial. Instead, they could rely on statements those witnesses made to police officers if they were found to be reliable.

The new ruling forbids hearsay testimony unless "firmly rooted" in a hearsay exception or, if "testimonial," where the speaker is "unavailable" and the accused had an opportunity to cross-examine. "Unavailable" refers to an inability to testify due to (1) death, (2) absence from the jurisdiction, (3) serious physical disability, or (4) inability to communicate about the alleged offense due to serious emotional distress.

Keeping the Balance True: Admitting Child Hearsay in the Wake of Crawford v. Washington
By Victor I. Vieth
Update, Volume 16, Number 12 (publication of the National Center for the Prosecution of Child Abuse)
http://www.ndaa-apri.org/publications/newsletters/update_volume_16_number_12_2004.html

This paper analyzes the recent Crawford decision by the U.S. Supreme Court. The decision held that when hearsay statements of an unavailable witness are "testimonial," the 6th amendment requires that the accused be afforded a prior opportunity to cross-examine the witness. Although Crawford is a watershed decision, Mr. Vieth points out that the decision case only applies to criminal cases in which the child victim will not testify. Mr. Vieth then lays out a number of arguments that can help to distinguish child hearsay statements from "the solemn, formalized statements" discussed in Crawford .

For instance, Vieth notes that (1) most child abuse forensic interviews are not primarily for the purpose of criminal litigation; (2) young children are unlikely to comprehend that a forensic interview may be used at trial; (3) even older children may not understand that a forensic interview may be used for testimonial purposes; and (4) Crawford does not apply if the defendant's conduct made the child unavailable for trial. Since many child abuse victims are unavailable for trial because of the abuse, these offenders may have forfeited their right to confront the children they have harmed.

Child's recantation insufficient to reverse father's conviction
March 9, 2004
Tennessee Court of Appeals
State v. Holland

The defendant appealed from his convictions for aggravated sexual battery of his minor son. He argued that his convictions should be overturned because the victim recanted his trial testimony about a year later. The Tennessee Court of Appeals affirmed the convictions noting that the defendant had confessed to molesting the victim. The defendant claimed his confession was false and that he only confessed to help him gain custody of the child. The Court was not persuaded holding that it was "not reasonable to conclude that admitting to sexual abuse of one's child would help that individual regain custody of the child." 

"Sexual-Self Defense" not allowed as a defense to manslaughter
March 10, 2004
Maine Supreme Judicial Court
State v. Graham

After being convicted of manslaughter, the defendant appealed on the ground that he was denied a fair trial when the judge refused to instruct the jury on "sexual self-defense". The "sexual self-defense" argument arose from a defense expert who testified at trial that the defendant has been sexually assaulted as a child. According to the defense expert, the defendant suffered PTSD which caused him to enter a dissociative state at the time of the manslaughter because he believed the victim was about to commit a sexual assault against him.

The Maine Supreme Judicial Court rejected the defendant's argument and upheld his conviction reasoning that even if the defendant believed he was about to be sexually assaulted, it was not "objectively reasonable" to use deadly force to repel the victim. The court emphasized that there was no evidence the victim took any steps to forcefully sexually assault the defendant and the state of mind of the defendant, alone, was insufficient to warrant a jury instruction on "sexual self defense".

Child pornography not admissible in sex abuse case
March 17, 2004,
Court of Appeals of Texas
Thrift v. Texas

After his conviction on two counts of sexual assault of a child and indecency with a boy, the defendant appealed arguing that pornographic photographs of nude boys found in his residence should not have been admitted into evidence because they were unduly prejudicial. At trial, the male victim testified that the defendant placed his hand on his penis and performed oral sex on him. The defendant denied that any contact occurred. In Texas , the charge of indecency with a child requires proof that certain sexual contact took place and that it was committed "with the intent to arouse or gratify the sexual desire of any person." The trial court admitted the nude photographs over the objections of the defense but instructed the jury that they could only consider the photographs to determine the intent of the defendant to arouse or gratify his sexual desire, and for no other purpose.

The appellate court reversed one of the defendant's convictions ruling that the photographs were unduly prejudicial because "(1) the fact at issue [the defendant's intent] was not seriously contested; (2) that the State had other convincing evidence to establish the issue; (3) that the probative value of the evidence was not particularly compelling; and (4) that the evidence was of such a nature that a limiting instruction would not likely have been effective."

Expert testimony on rape trauma syndrome admissible
March 25, 2004
Court of Appeals of California, 6 th District
People v. George Jonathan Alvarez

After being convicted of rape, the defendant filed an appeal arguing, among other things, that his rights were violated because the court allowed "prejudicial" expert testimony on this issue of rape trauma syndrome. The trial court had permitted the prosecutor to call as a witness, a director of a rape crisis center to testify in her capacity as an "expert witness" about rape trauma syndrome. The expert advised the jury that she was not familiar with the facts of the defendant's case, and then she described the general aspects of the syndrome for the jury. For instance, the expert testified that sexual assault victims often fail to report the crime due to guilt, shame and a concern about how they will be perceived, that their fear and denial tend to isolate their memory of the assault and make it difficult to retrieve, that it is common for a sexual assault victim initially to report only nonsexual crimes and to delay before reporting a sexual assault.

On appeal, the defendant complained that the premise of the court's ruling -- that "jurors actually believe certain falsehoods" -- was wrong; he claimed that rape myths no longer exist in contemporary society. The Appeals Court upheld the testimony, ruling that while rape trauma syndrome testimony may not be used "as a means of proving -- from the alleged victim's post-incident trauma -- that a rape in the legal sense had, in fact, occurred," expert testimony regarding the syndrome is admissible and "may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths."

Sexual offender improperly granted full unsupervised visitation rights
March 25, 2004
Court of Appeals of Ohio, 7th Appellate District
Hoppel v. Hoppel

This is an expedited appeal of an order granting full visitation rights of minor child Kaydi Jo Hoppel to her natural father, John W. Hoppel. The parties Rhonda and John Hoppel filed for divorce in 1997. While the divorce was pending, John was convicted of sexual battery against Stacey Owens, Rhonda's daughter from a previous marriage. After the divorce was finalized, John Hoppel was granted some restricted visitation rights. On July 31, 2003, John Hoppel filed a motion to receive full standard visitation rights. Rhonda Hoppel appeared pro se at the hearing and the trial court granted his motion on September 19, 2003. The court apparently found it very significant that Mr. Hoppel had not previously sexually assaulted Kaydi Jo, but rather, had committed a sexual battery only against Kaydi Jo's sister.

Rhonda Hoppel appealed contending that the trial court did not properly take John Hoppel's crime against Stacey or his status as a sexual offender into account when granting him full unsupervised visitation rights. The Appeals Court agreed stating: "The trial court acknowledged that [Mr. Hoppel] had been convicted of sexual battery against Kaydi Jo's sister, and then seemed to ignore that evidence. Although it is obvious that [Rhonda Hoppel]  did a poor job of representing herself at the visitation hearing, the trial court cannot use that as a reason to avoid applying all the factors in R.C. 3109.051(D) or as a reason for ignoring the best interests of the child … We find it difficult to conceive of any set of circumstances in which it would be appropriate to grant [John Hoppel]  completely unsupervised visitation in this case."

Child's right to "bodily integrity" overrides charity's immunity claim
March 26, 2004
Superior Court of New Jersey, Appellate Division
Hardwicke et al. vs. American Boychoir School et al.

Two men sued the Columbus Boychoir School under New Jersey 's Child Sexual Abuse Act alleging that they were victims of sexual abuse by school employees. American Boychoir School brought several motions for summary judgment. The trial court found in favor of the school holding that, because the school was not a "person", the Child Sexual Abuse Act was not applicable to it. In a second opinion, the trial court granted the school's motion for summary judgment based upon the school's alleged immunity from suit as a non-profit educational Institution. The appellate court reversed, holding that the Child Sexual Abuse Act encompasses the conduct alleged on the part of the school. The court noted that when parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. As far as the school's claim of immunity related to its status as a nonprofit, the court held that "A child's fundamental right to bodily integrity cannot be found secondary to a charity's well-being."

Suit against pedophile priest barred by 2-year statute of limitations
March 26, 2004
U.S. Court of Appeals for the 3 rd Circuit
Charles Hartz, Jr. v. The Diocese of Greensburg et al.

Charles Hartz, Jr. alleges was the victim of sexual abuse between 1980 and 1982 by Father Gregory Premoshis. In 2002, he brought suit against Premoshis along with Bishop Anthony Bosco and the Diocese of Greensburg. In his complaint, Hartz alleged that Premoshis sexually abused him on multiple occasions, often after plying him with alcohol. Hartz contends he repressed the shame associated with the abuse and discovered the link between the abuse and his psychological injuries only years later, when a psychologist explained that his emotional problems stemmed from the abuse.

The District Court dismissed the case concluding that the two-year statute of limitations had expired. Hartz appealed and the U.S. Court of Appeals affirmed the lower courts dismissal of the case. The Appeals Court noted that Hartz failed to demonstrate that it should apply either the fraudulent concealment doctrine or the principle of delayed accrual under the discovery rule to toll the statute of limitations. "Hartz does not allege that he was not cognizant of the abuse at the time it occurred or any time thereafter. Despite alcohol being involved in "many, but not all" of the abusive events, Hartz was aware of the possibility that something untoward was occurring. Hartz concedes in his Amended Complaint that, on several occasions after awaking from an alcoholic stupor, he asked Father Premoshis if illegal sexual activities were taking place. By making this concession, Hartz dooms his tolling argument."

Evidence of other crimes can be used to commit sex predators
April 1, 2004
Wisconsin Supreme Court

After being declared a sexually violent person, Gregory Franklin was committed to a state mental facility. Under Wisconsin 's sexual predator law, the state must prove offenders suffer from a mental disorder that makes them a substantial risk to re-offend if they are released. Franklin appealed his committal claiming that jurors should not have heard evidence that included his juvenile criminal record, pre-sentence investigation reports and an expert's opinion. The Wisconsin Supreme Court upheld the ruling by the 1st District Court of Appeals which held that juries can consider evidence of past crimes and wrongdoing when deciding whether to deem offenders sexual predators and keep them confined after their prison sentences.

Enhancement of sentence may be based on "intent" to abuse a minor
April 1, 2004
U.S. Court of Appeals, 11 th Circuit
U.S. v. Samuel Alan Morton

In a case of first impression in the 11th circuit arising out of a criminal conviction for "enticing a minor" to engage in sexual activity, the defendant argued that an enhancement of his sentence was illegal because it was based on a claim that his pattern of sexual activity involved "a minor," but the "victim" in the case was an undercover police officer masquerading as a minor. The court disagreed and upheld the sentence enhancement based on evidence of the defendant's "intent to exploit and abuse what he treated as, and what he concluded to be, a minor--notwithstanding the charade by a law enforcement officer to pose as the minor." 

Hearsay testimony of abused children no longer allowed
April 5, 2004
Maryland Court of Special Appeals
Michael Conway Snowden v. Maryland

Michael Snowden was convicted after the State presented evidence that defendant sexually abused three children aged 8-10 years.  The children's account of what occurred was presented through the testimony of a licensed social worker employed by the Child Protective Services. This testimony was authorized by a Maryland statute that permitted hearsay testimony to substitute for the live testimony of children "of tender years." The defendant appealed saying that the admission of hearsay violated his constitutional right to confrontation under the sixth amendment and the recent U.S. Supreme Court Crawford decision ( Crawford v. Washington , 541 U.S. , 124 S. Ct. 1354 [2004]).

The Court concluded that based on Crawford , the statements testified to by the social worker at trial were "testimonial" because "[t]he children were interviewed for the expressed purpose of developing their testimony [for use at trial under Maryland's child hearsay statute] . . ."  In overturning Snowden's conviction, the Court found no evidence the children were "unavailable" to testify and noted that the defendant had no prior opportunity to cross-examine.

Mental health barred from personal injury lawsuit
April 5, 2004
Colorado Supreme Court

In an unanimous decision, the Colorado Supreme Court ruled that when people file lawsuits and make generic claims that they experienced pain, suffering and emotional distress, they are not automatically injecting their mental condition into the case. The decision came in the case of Nancy Hoffman, who slipped and fell on a staircase at a property owned and maintained by Brookfield Republic, Inc. In defending itself against the personal injury lawsuit, Brookfield sought all of Hoffman's mental health records going back 10 years. The trial court ordered Hoffman to turn over the records, saying she had injected her mental health into the lawsuit when made claims of pain and suffering. On appeal, the Supreme Court ruled that such generic allegations do not put a person's mental health at issue.

Patriot Act may impact mental health practices in the US

An article by John B. Mansdorfer, Ph.D., in the National Psychologist (July/August 2004) discusses the ethical binds that certain sections of the Patriot Act may cause psychologists and other mental health providers. According to Mansdorfer, the Patriot Act creates a situation where government agents can come to your office, demand your records about a patient, and then forbid you under penalty of law from telling that patient he or she is under investigation, and that you have broken confidentiality.

The Patriot Act was passed on Oct. 21, 2001, just six weeks after the Sept. 11 attacks and without much scrutiny or debate. The Patriot Act strengthened the earlier Foreign Intelligence Surveillance Act of 1978 giving the government more power to conduct various types of surveillance and intelligence gathering operations on American citizens as well as foreign nationals. The section of the Act that is most troublesome to mental health professionals is Section 215, "Access to Records and Other Items Under the Foreign Intelligence Surveillance Act," under Title II, "Enhanced Surveillance Procedures." Section 215 specifies that the FBI may enter a business and require "the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." It goes on to specify that, "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

Because this section seems to put psychologists in conflict with their own Ethics Code, especially the sections promoting honesty and openness, the American Psychological Association Ethics Office and the Professional Practices Office both have this aspect of the Patriot Act under consideration. 

The full article is available at http://www.nationalpsychologist.com/articles/art_v13n4_3.htm

Expert testimony not allowed on whether defendant's personality is consistent with that of a sex offender
March 9, 2004
Supreme Court of Wisconsin
Wisconsin v. Steven G. Walters,

This case was initiated by the State of Wisconsin which sought review of a published decision of the Court of Appeals that reversed the defendant's conviction on three counts of sexual assault of a child. The State asserts that the court of appeals wrongfully interpreted State v. Davis (2002) as "compelling" the admission of the defendant's proffered "expert" evidence, which compared the personality characteristics of the defendant with the personality characteristics of known sex offenders. The Wisconsin Supreme Court sided with the State concluding that the trial judge properly excluded the defendant's proffered "expert" evidence. In reversing the lower appellate court decision after the court held that the testimony's minimal probative value was substantially outweighed by the danger that the jury would be misled.

Results of Abel Assessment Scale properly excluded
May 4, 2004
US Court of Appeals for the Ninth Circuit
US v Jeramie Shane Birdsbill

After being convicted of child sexual abuse, Jeramie Birdsbill appealed saying that the trial court wrongly excluded his proffered expert witness who would have testified regarding the results of his Abel Assessment of Sexual Interest test. According to the defense, the test shows that the defendant had a "normal sexual interest pattern and no abnormal sexual interest in young boys."

The trial court ruled that the test was unreliable without conducting a full "Daubert" hearing. Instead the court simply ruled that the Abel test was neither relevant nor reliable under the circumstances, including the following: (1) the AASI test is a psychological instrument to be used for treatment, not for diagnostic purposes, and it is not designed to assess the tendency of a person to abuse children sexually; (2) Dr. Abel did not use a control group and it is unclear how or whether the test ferrets out "fakers"; (3) the test has not been subject to adequate peer review because Dr. Abel has proprietary rights over the test and has not shared his formula with other scientists (and those who have tried to assess the test's validity have come up with dubious and inconsistent results); (4) the potential error rate "varies from poor ... to appalling," which makes it an unreliable instrument; and (5) the relevant scientific community does not generally accept the AASI test as a diagnostic test for pedophilia.

The appellate court upheld the trial court's ruling noting that the trial court was not obligated to hold a formal Daubert hearing and that the trial judge was able, even without a "hearing," to conduct a thorough and proper analysis of the Daubert factors.

Trial court erred in giving convicted child molester custody and visitation rights
May 11, 2004
Missouri Court of Appeals, Eastern District, Division Two
In re the Marriage of M. A. and M. S. M. A.

Despite the fact that the father confessed to molesting and sodomizing his daughter during her infancy and pleaded guilty in criminal court, the trial judge ruled the father was no longer at risk of abusing children. The court granted father's request that his visitation with son no longer be supervised, and granted the father's request for joint legal custody of his daughter, but ordered the visits with daughter continue to be supervised "until the parties agreed otherwise or until further order of the court." The father's present wife was appointed by the court to supervise the visitation.

The mother appealed and the higher court reversed the lower court's ruling. Finding that the trial court's ruling ran contrary to Missouri law which seeks to protect children from their abusers, the appellate court reversed the trial court's denial of mother's motions seeking termination of father's visitation of daughter; reversed the trial court's award of joint legal custody and designation of father's present wife as supervisor of his visitation; and reversed and remanded the trial court's elimination of supervised visitation of son.

Words of a child may be sufficient evidence of abuse
May 17, 2004
Supreme Court of New Hampshire
New Hampshire v. Joseph E. King

The defendant, who was convicted of aggravated felonious sexual assault of a 13-year-old girl, complained that the evidence was insufficient because the only evidence was testimony of the child who used child-specific terminology such as "pee-pee." The court disagreed ruling, "we underscore that where, as here, the victim's testimony itself is sufficient to establish a prima facie case, no corroborating evidence is needed.

Statements made in a forensic interview are inadmissible hearsay under Crawford v. Washington
May 27, 2004
California Court of Appeals
The People v. Seum Sisavath

The defendant who was convicted of numerous charges of sexual abuse appealed his conviction because he was not able to cross-examine the child victim. The appellate court sided with the defendant reversing his convictions on four counts of child sexual abuse after determining the videotaped interview with the victim was improperly admitted. Interpreting Crawford v Washington , the California Court of Appeals ruled that a statement made by a child witness in a videotaped forensic interview is "testimonial" in nature and therefore inadmissible hearsay. The 4-year old child witness became unavailable for trial after the trial court determined the child incompetent to testify.

The court cautioned that not all statements made in forensic interviews are testimonial under Crawford . In this case, the child's statement was considered testimonial because it was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial and thus could not be admitted absent the child testifying and being subject to cross-examination. The higher court was persuaded by the fact that the interview took place after a prosecution was initiated, was attended by the prosecutor and prosecutor's investigator, and was conducted by a person trained in forensic interviewing.

Physician immune from suit for reporting child sexual abuse
June 30, 2003
Georgia Supreme Court
O'Heron et al. v. Blaney et al ., 276 Ga. 871; 583 S.E.2d 834; 2003 Ga. LEXIS 608 (Supreme Court of Georgia , 2003)

This case involves a physician who was sued after reporting suspected child sexual committed against two young girls by their grandfather. The abuse allegations were brought to the doctor's attention after the girls disclosed to their mother. During an examination and interview with each child, the children made specific and detailed allegations of sexual contact by their grandfather. The physician reported the allegations to child protective services. Criminal charges were brought against the alleged abuser but later abandoned by the district attorney after a grand jury refused to indict him. The accused then filed a civil suit against the physician alleging malicious prosecution, professional malpractice and ordinary negligence.

Summary judgment for the defendant was granted by the trial court, as Georgia's mandated reporter statute shields a mandated reporter from civil liability where there exists "reasonable cause to believe" that abuse has occurred, or where there is a "showing of good faith." The accused appealed and the Court of Appeals reversed the lower court's ruling. The Supreme Court of Georgia reversed the Court of Appeals decision and reinstated judgment in favor of the physician finding that physicians having a reasonable basis to suspect child abuse are shielded from criminal and civil liability for reporting the abuse under the mandatory child abuse reporting law.

Force is intrinsic element whenever an adult has sex with a minor
June 10, 2004
US Federal Court, District of Connecticut
Lanekhan Hongsathirath v. John Ashcroft

The defendant, a native and citizen of Laos , entered the United States as a refugee and became a permanent resident. On March 30, 2000, defendant pleaded guilty to the sexual assault of a child. Immigration officials then initiated proceedings to deport the defendant. At a hearing on the matter, the immigration judge concluded that defendant's conviction for risk of injury to a minor constituted an "aggravated felony", thus a "crime of violence" and defendant was subject to deportation.

On appeal, defendant argued the crime he committed was not a "crime of violence" because he hadn't used force. The appellate court disagreed reasoning that in determining whether an offense is a crime of violence the court applies a "categorical approach," which focuses on whether there is a substantial risk of "physical force" in the "intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation." The court noted that the victim, a minor, is unable to give consent. Because of the disparate ages of the defendant and the victim, or the mental incapacity or physical helplessness of the victim, or the defendant's position of authority over the victim, the crime inherently includes a substantial risk of physical force.

Supreme Court clarifies employer liability in sexual harassment cases
June 14, 2004
US Supreme Court
Pennsylvania State Police v. Suders

The Supreme Court ruled that employers can be sued over alleged sexual harassment by supervisors, even after the plaintiffs have quit their jobs voluntarily. The Court held that workers who quit over intolerable sexual harassment are protected by a 1964 federal civil rights law; however, the court made it difficult for them to sue and win damages from their former employers. If a worker quits without having faced specific punishment (e.g., being demoted, transferred to a worse assignment, or had their salary cut), the Supreme Court said that the employer must be given a chance to prove it had a sincere and effective policy aimed at preventing and responding to harassment, and that the employee did not take advantage of the policy.

The case was brought by Nancy Drew Suders. As an employee of the Pennsylvania State Police, Ms. Suders claimed that she had been subject to a constant barrage of sexually harassing behavior by her male supervisors. Ultimately, she quit and filed suit against her former employer, alleging that the harassment constituted a violation of Title VII of the Civil Rights Act of 1964.

New Jersey Health Care Consumer Information
June 23, 2004
Online profiles: http://www.njdoctorlist.com

The "New Jersey Health Care Consumer Information Act" (P.L.2003, c.96) was signed into law on June 23, 2003 and the resulting physician profiles were recently posted online. The statute required that profile information about New Jersey physicians and podiatrists be developed and maintained and that certain information be made available to the public electronically and by other means. The profiles provide information on where doctors attended medical school and where they did their training. Patients can also learn whether their doctors have been disciplined by the state Board of Medical Examiners, whether they've been arrested for a crime in the past decade, and whether they have paid out money in malpractice settlements.

Foreign student deported for sexual battery
June 21, 2004
United States Court of Appeals, Fifth Circuit.
Raza Akhtar Zaidi v. John Ashcroft

The defendant, a 27-year-old native and citizen of Pakistan , was admitted into the United States as a non-immigrant student in August 2000. In June 2002, defendant pled nolo contendere to two counts of sexual battery in Oklahoma . The sexual battery charges arose from a night of drinking during which defendant touched two women inappropriately through their clothing while the women were either passed out or partially awake in a dorm room at Southeast Oklahoma State University. Immigration officials then initiated proceedings to deport the defendant as an "aggravated felon." An aggravated felony is considered a "crime of violence" that makes the defendant subject to deportation. 

The defendant appealed the order on the grounds that a conviction for "sexual battery" is not a "crime of violence." The defendant noted that while he inappropriately touched the women without their consent, he did not use any "destructive or violent force" in doing so. The appellate court disagreed and emphasized that in all such cases, the non-consent of the victim is the touchstone for determining whether a given offense involves a substantial risk that physical force may be used in the commission of the offense. This alone is sufficient to justify deportation.

Ruling reaffirms Illinois rape shield law
June 24, 2004
Illinois Supreme Court

Rape defendants may not question an accuser's sexual activities even if out-of-court statements by the alleged victim raises questions about her credibility. According to the Illinois Supreme Court, "What matters is whether the victim told the truth in her in-court testimony, and referring to prior bad acts in order to raise the inference that a witness is lying at trial is prohibited under Illinois law." The state's rape shield law, adopted in 1978 and updated in 1994, prohibits testimony about a victim's sexual past unless it involves prior sex with the defendant or is "constitutionally required."

Robert Santos was convicted of aggravated criminal sexual abuse after he allegedly raped a 16-year-old girl in the back seat of his car after a night of drinking in May 1999. The charge stems from the girl's age. The girl told hospital officials she didn't have sex with anyone other than Santos on May 9, 1999. Later, when DNA tests showed that seminal fluid and pubic hairs taken from her underwear were not from Santos , the victim acknowledged she also had sex with her boyfriend that day. Despite the court's ruling, Santos was granted a new trial. Justices let stand an appellate court ruling that trial jury should have been told that the state had to prove that Santos knew the accuser was younger than 17 at the time of the incident.

Mother gets life for letting her boyfriend assault her daughter
June 24, 2004
Fulton County, Georgia

A mother was sentenced to life plus 21 years for letting her boyfriend rape and impregnate her 11-year-old daughter. The prosecution presented evidence to the jury that her boyfriend raped the girl about 50 times and that the girl's mother knew about it and attempted to cover it up. A Fulton County jury found Julia Johnson, 38, guilty of being a party to the crime of rape, cruelty to children and contributing to the deprivation of a minor. The boyfriend, Trianthony Cannon, is serving life plus 80 years after pleading guilty to rape, child molestation and assault charges.

Undiagnosed symptoms do not constitute "pre-existing condition"
June 25, 2004
U.S. Court of Appeals, Third Circuit
McLeod v. Hartford Life and Accident Insurance Co.

In a victory for ERISA plaintiffs, the Third U.S. Circuit Court of Appeals has awarded long-term disability benefits to a woman with multiple sclerosis, holding that insurers cannot consider such a disease to be a "pre-existing condition" if the worker was merely receiving treatment for symptoms but had not yet been formally diagnosed. According to the appellate court, "Seeking medical care for a symptom of a pre-existing condition can only serve as the basis for exclusion from receiving benefits in a situation where there is some intention on the part of the physician or of the patient to treat or uncover the underlying condition which is causing the symptom."

Possessing child porn may require registering for life
June 28, 2004
California Supreme Court
In re Leon Casey Alva

The California Supreme Court ruled that a person convicted of possessing child pornography may be required to register as a sex offender for the rest of his or her life. The ruling overturned a 1983 precedent that held that requiring registration for a relatively minor offense was cruel and unusual punishment.

The case was brought by Leon Casey Alva, 27, who was convicted of possessing child pornography seven years ago. Alva completed his sentence of 60 days in jail and three years probation. However, citing the Eighth Amendment ban on cruel and unusual punishment, Alva challenged the requirement that he register as a sex offender for the rest of his life saying the punishment did not fit the crime. The California Supreme Court rejected Alva's argument holding that being required to register as a sex offender is not punishment. Instead, the court said, the registration requirement is a regulatory measure designed to assist law enforcement and to protect the public.

US Supreme Court again bars enforcement of Internet porn law
June 29, 2004
US Supreme Court
Ashcroft v. ACLU

The Supreme Court blocked enforcement of a law intended to protect children from pornography on the Internet, saying the 1998 legislation "likely violates the First Amendment." The 1998 law, known as the Child Online Protection Act (COPA), has been the object of numerous Constitutional challenges and thus has never taken effect. The Act would have authorized fines up to $50,000 for the crime of placing material that is "harmful to minors" within the easy reach of children on the Internet. Adults would be required to use access codes and or other ways of registering before they could see objectionable material online.

The Supreme Court did not strike down the legislation; rather they sent the case back to a lower court for trial. Writing for the majority, Justice Anthony Kennedy said a new trial would allow fresh discussion of the kinds of technology that could satisfy constitutional concerns. Kennedy said rapid changes in technology could make filtering software a more effective tool to block access than the more restrictive means laid out in COPA, such as age verification and use of a credit card.

Computer ban for pedophile is too broad
June 29, 2004
California Court of Appeal, Second District

Ramon Stevens pleaded guilty in 1997 to lewd conduct with a child under 14. At the time, authorities raided his Southern California home and confiscated photos of nude boys -- but found no evidence that he used his computer to download child pornography. Stevens was released in 2002 but ordered by the parole board not to access computers or use the Internet. Stevens challenged this ban arguing that the restrictions cut off potential earnings as an Internet entrepreneur and author. In addition, he argued that the ban was needless because authorities could access his computer at any time via his Internet service provider. The district court agreed and ruled that Stevens could go online as long as he avoided pornography.

The State of California appealed and the appellate court ruled in Steven's favor holding that authorities cannot place so many restrictions on offenders that they cannot earn a living. The court held that "The broad prohibition on use of the computer and Internet bore no relation to Stevens' conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state's legitimate goal." The court added that authorities could monitor Stevens using random, unannounced checks of his hard drive and disks or through monitoring software.

Complaint against Catholic Church time barred
July 1, 2004
Court of Appeals of Ohio , Eighth Appellate District, Cuyahoga County
Jane Doe v. Catholic Diocese of Cleveland

Jane Doe sued the Catholic Diocese of Cleveland alleging negligence for allowing an abusive priest access to children. She claimed that she was sexually abused by Father Wernet between 1962 and 1966. She moved out of state as a child and heard nothing more about Father Wernet until she watched "60 Minutes" in 2002, when she claims she discovered that Father Wernet had molested other children. Based on this information, she claims she learned that the Catholic Diocese of Cleveland and St. Joseph Church knew or should have known that Wernet was likely to abuse her. Thus, she argued that the statute of limitations on her claims against the Diocese and the Church did not start to run until 2002 when she first became aware that Church's negligence harmed her. The trial judge rejected her claim as time barred by the statute of limitations and granted the Diocese's motion to dismiss.

On appeal, the Ohio appellate court affirmed the lower court ruling noting that in Ohio , in the absence of repressed memory, the limitations period begins to run when a plaintiff reaches 18 years of age. The court held that Doe knew wrongful conduct had occurred and she knew the identity of the perpetrator. However, she failed to exercise reasonable diligence to discover whether the Church and the Diocese were also guilty of wrongful conduct.

Introduction of evidence of prior false allegations by victim allowed
July 1, 2004
Supreme Court of Missouri ,
Missouri v. Jeffrey D. Long

Evidence at trial included that the victim went to defendant's apartment, along with another man, and all three began drinking. At some point, both men beat and sexually assaulted the victim and then forced her out of the defendant's apartment and into a hallway. She remained there until the next morning because she was afraid and in pain. She then walked to a nearby grocery store, where a security guard called a taxi for her. She went home, bathed, and tried to recover from the assault. A few days later, she reported the incident to police. A medical examination revealed bruising, rectal trauma, and vaginal tears and abrasions consistent with sexual assault. The defendant denied assaulting the victim and attempted without success to enter evidence that the alleged victim had made prior false allegations. The trial court excluded the testimony in each offer of proof, concluding that it was irrelevant and not "proper character evidence."

After being convicted of one count of forcible rape, and one count of forcible sodomy, Jeffrey Long appealed arguing that his rights were violated because he was forbidden to introduce evidence that the victim made prior false allegations of assault. The appellate court sided with the defendant and reversed his conviction holding that, in this case, because the witness' credibility is a key factor in determining guilt or acquittal, excluding extrinsic evidence of the witnesses' prior false allegations deprives the fact-finder of evidence that is "highly relevant to a crucial issue directly in controversy; the credibility of the witness." Moreover, the court held that prior false allegations should not be limited to allegations of sexual assault but may include any similar offense. Thus the fundamental requirement for admitting extrinsic evidence of a prior false allegation should be a showing of legal relevance in which the trial court must balance the probative value of the knowingly made prior false allegation with the potential prejudice."

Convicted child rapist wins sole custody
July 1, 2004
Supreme Court of Missouri
In the Interest of: A.S.W.

A.S.W. is a minor child born to P.S.W. ("Father"). Before A.S.W. was born, Father, a registered sex offender, spent ten years in prison (on a 30-year term) for sodomizing two of his nieces, then ages 11 and 15. Father was A.S.W.'s primary caregiver until he suffered a head injury after falling off a ladder at work in January 2000, a month before A.S.W.'s second birthday. Father was hospitalized for over two years and diagnosed with multiple functional and mental impairments, including poor memory, poor judgment, poor problem solving, and poor ability with regard to personal safety. During this time the Division of Family Services (DFS) took custody of A.S.W. because the Father was disabled due to the brain injury and the child's Mother was "incoherent, intoxicated, and unaware of the juvenile's whereabouts." A.S.W was placed in foster care. Father then had supervised visits until February 2002, when visits were discontinued due to "inappropriate conduct" when the DFS caseworker discovered that Father had taken showers with his young son. Father's parental rights were terminated on November 19, 2002 after being found to be unable to care for his son. A.S.W.'s foster parents filed a petition for adoption.

Father appealed the termination of his parental rights. The Missouri Supreme Court agreed holding that, "parenting is frequently a group effort" and that there is nothing in the state code that allows a circuit court to terminate parental rights because "without assistance, a parent lacks the ability to care for the child." The Supreme Court decided not to consider the evidence of prior sexual offending against children noting that "the circuit court did not terminate Father's parental rights based upon this evidence, instead ruling that Father's parental rights were to be terminated because of the consequences of his "mental condition" caused by his accident."

Plaintiff's prior sexual behavior off limits in sexual harassment suit
July 2, 2004
U.S. District Court for the District of Maine
A.W. v. I.B. Corp.

The plaintiff in this civil lawsuit, A.W., a male, brought a hostile-environment sexual-harassment claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. §1981a. In his suit, the plaintiff alleges that a male co-worker created a hostile work environment for him by grabbing his buttocks or groin. A.W. claimed that the hostile environment caused him to experience severe emotional distress and to seek professional counseling to treat the symptoms of that distress.

During the plaintiff's deposition, the defendant sought to explore A.W.'s past sexual history and his counsel instructed him on a number of occasions not to answer. Defendant's counsel objected and asked the court to compel the plaintiff to respond to a list of questions about his sex life. Plaintiff's counsel countered by asked the court to enter an order prohibiting questions concerning A.W.'s sexual history with persons other than the defendant. The U.S. District Court is court ruled that almost all questioning regarding the plaintiff's prior sexual history was improper. 

Lower disability benefits for mental conditions not discriminatory
July 2, 2004
New York Court of Appeals

The New York Court of Appeals ruled that disability insurance policies written in New York do not have to provide the same coverage levels for mental and emotional conditions as they do for physical injuries. The case was brought by Charlene Polon who has been unable to work due to chronic depression. Her company's disability policy provided her with only 24 months of coverage. Had she suffered a physical injury, the policy would have covered her until she reached age 65, or until her condition improved enough to allow her to return to work. Polon brought suit claiming that she was being discriminated against because of her mental illness.

The court ruled against her saying she is not being discriminated against because she was not individually singled out for a shorter coverage period in a discriminatory manner. It noted that the 24-month provision "preceded her disability" and that all others covered under her employer's policy faced the same limitations. Moreover, the court noted that New York 's anti-discrimination law is similar to those in several other states, including Texas and Maine . Courts in those states "have generally declined to interpret these statutes to require equivalent coverages for mental and physical disabilities."

Expert testimony regarding victim's demeanor not impermissible opinion on credibility
July 2, 2004
Court of Appeals of Georgia, Third Division,
Morris v. Georgia

After being convicted of child molestation, the defendant appealed arguing, among other things, that he was denied a fair trial because an expert testified about the victim's credibility. The trial included the testimony of Dr. Nancy Aldridge, a psychotherapist, and the former clinical director for the GeorgiaCenter for Children, who interviewed the victim during the course of the investigation. The prosecutor asked, "Was there anything in the demeanor of [the victim] that allowed you to rule out abuse in this case?" Aldridge replied, "No, sir. There was - there was nothing in her demeanor that would rule [it] out."

The defendant argued on appeal that this questioning was improper because no witness, including an expert, can testify about the credibility of another or as to whether a particular witness is telling the truth. The appellate court disagreed holding that the testimony did not directly address the credibility of the victim. The court noted that there is a world of legal difference between expert testimony that "in my opinion, the victim's psychological exam was consistent with sexual abuse" and testimony that "in my opinion, the victim was sexually abused." The court noted that in the first situation, the expert leaves the ultimate issue for the jury to decide; in the second, the weight of the expert is put behind a factual conclusion which invades the province of the jury by providing a direct answer to the ultimate issue at stake in the trial: was the victim sexually abused?

Portland Archdiocese Files Bankruptcy
July 5, 2004

The Portland Archdiocese announced that it will file for bankruptcy, becoming the first Roman Catholic diocese in the nation to seek bankruptcy court relief in the face of accusations of sexual abuse. The Chapter 11 bankruptcy action will put an immediate halt to a priest abuse case scheduled to begin in Portland on July 5, 2004. This case involves the Rev. Maurice Grammond, who was accused of molesting more than 50 boys in the 1980s. Grammond died in 2002. In a deposition taken before his death, Grammond admitted sexual contact but claimed that he was the victim. "I'd say these children abused me. They'd dive in my lap to get sexual excitement."

Defense attorney not ineffective for deciding not to call expert
July 9, 2004

Georgia Court of Appeals
Bruce v. State

After a jury trial, Kenneth Lee Bruce was convicted of child molestation of K.M., who was 9 years old at the time of the incident. Bruce appealed on the ground that his trial counsel was ineffective for failing to present an expert at trial who would have testified that victim may have been mistaken about or imagined the molestation in a dream. The evidence showed that K.M. spent a weekend with the defendant who was a friend of K.M.'s mother. K.M. testified that after she went to bed, Bruce touched her genital area, "he started doing it and he stopped and I started waking up." In order to have the last word during closing arguments, at trial, Bruce was the only witness called by the defense. Bruce denied molesting the victim testifying that he fell asleep on the couch while K.M. was asleep upstairs. K.M. later came downstairs because she had a nightmare. After his conviction, Bruce appealed saying that he was deprived of effective assistance of counsel. The appellate court rejected this claim since failure to call an expert was a preplanned trial strategy and because a jury is capable of determining victim's credibility and believability without the testimony of an expert.

New Medicare law may lead to cuts in drug benefits for retirees
July 14, 2004

New Department of Health and Human Services estimates suggest that employers will reduce or eliminate prescription drug benefits for 3.8 million retirees when Medicare offers such coverage in 2006. During last year's debates, Republicans repeatedly said the new drug benefits would be completely voluntary and that those happy with the current Medicare system should be able to keep their current coverage. However, it now appears that private insurance companies will use the law to force millions of retirees out of comprehensive retiree drug coverage and into the limited coverage to be offered by Medicare. Medicare's drug benefit is structured so that there is a large gap in coverage during which the beneficiary must pay all drug costs.

California appellate court extends the therapist's duty to warn
July 16, 2004
California Court of Appeals, Second District, Division Eight
Ewing v. Goldstein

The California appellate court extended the therapist's duty to protect intended victims when a patient threatens serious harm to a third party. The parents of a victim killed by a therapist's patient sued the therapist for wrongful death based on the therapist's failure to warn the victim. In this case, the therapist did not hear the threat from the patient but from a family member who communicated to the therapist that the patient had made a threat. The trial court granted the therapist's motion for summary judgment finding him immune from liability because the threat was communicated to the therapist by the patient's father rather than by the patient himself.

The appellate court ruled that summary judgment was erroneously granted. Although it agreed that a literal reading of the statute would preclude imposition of liability on the therapist, the court opted for a broader interpretation. The court stated, "When the communication of the serious threat of physical violence is received by the therapist from a member of the patient's immediate family and is shared for the purpose of facilitating and furthering the patient's treatment, the fact that the family member is not technically a `patient' is not crucial to the statute's purpose."

Expert testimony on rape trauma syndrome permissible
July 22, 2004
Supreme Court of New York
New York v. Smith

After being convicted of rape and other charges involving crimes against his former girlfriend, the defendant, Mark Smith, appealed arguing his rights were violated when the state was allowed to call an expert witness to testify about "learned helplessness syndrome", "rape trauma syndrome" and "battered woman syndrome". Smith argued this testimony was improperly offered to "prove" that the crimes occurred. The appellate court disagreed noting that the psychiatrist was called to testify, not to "prove" that that there was a rape and a battering, but to provide the jury with an explanation of the victim's behaviors surrounding the underlying incidents, which otherwise may have appeared unusual to a jury.

Kansas loses ruling on underage sex reporting
July 26, 2004,
U.S. District Court

A federal judge ruled that health care professionals in Kansas cannot be forced to report underage sex to authorities. Sex involving someone under 16 is illegal in Kansas , even if it involves willing same-age partners. According to Kansas Attorney General Phill Kline's interpretation of the state law, doctors, nurses, psychiatrists, social workers and others are required to report underage sex to law enforcement officials because it inherently involves abuse of a child. The Center for Reproductive Rights, a New York advocacy group, argued that such a requirement would discourage young people from seeking counseling or medical treatment, including abortions. The judge sided with the advocacy group, saying, "The court is convinced even a limited breach of confidentiality concerning such unique and intimate information could have large implications for the well-being of minors."

Allowing child victims to hold a doll during testimony permissible
July 26, 2004
Court of Appeals of Washington , Division One
Washington v. Morteza Hakimi

The defendant, Morteza Hakimi, was convicted of three counts of first degree child molestation involving two 7-year-old girls. On appeal, the defendant argued, among other things, that the trial court undermined his right to a fair trial when it allowed the victims to hold a doll while testifying. Hakimi suggested that the doll were provided by the prosecutor's office as a strategy to "engender sympathy and empathy in the jury." The appellate court disagreed. The court noted that the record shows that the doll belonged to one of the victims, who gave it to the other for the duration of her testimony. In addition, the court noted that the defendant provides no evidence to suggest that the victims held the doll for any purpose other than to help them endure the ordeal of testifying, in the presence of defendant, as to his sexual conduct.

Daubert hearing not required to admit PPG
July 26, 2004
Court of Appeals of Washington , Division One
In re the Detention of Michael Allen Halgren

The defendant, Michael AllenHalgren, appealed his designation as a sexually violent predator (SVP) by the state. The State filed a petition alleging that Halgren was a SVP based on his 1989 first degree rape conviction. In order to commit an individual to confinement and treatment, the State must prove either a "mental abnormality" or a "personality disorder," both of which are mental illnesses that render a person likely to engage in predatory acts of sexual violence. Prior to trial, and over Halgren's objection, the trial court granted the State's motion for a mental examination in September 2001. Over Halgren's objections under Frye the trial court also admitted testimony concerning risk prediction actuarial instruments and the results of a penile plethysmograph test ("PPG").

Halgren appealed contending among other things that the trial court abused its discretion when it admitted expert testimony concerning and the results of a PPG which he argues is not generally accepted in the scientific community as a tool to predict a sex offender's likelihood to reoffend. The appeal affirmed the trial court ruling holding the PPG admissible. The court held that the results of the PPG, standing alone, were never offered or admitted for this purpose. Rather, the State offered the PPG results through the testimony of Dr. Wheeler as one of several bases concerning his comprehensive sex offender evaluation that informed his opinion on Halgren's risk to reoffend.

Maryland can be sued over social workers' mistakes
July 28, 2004
Maryland Court of Appeals

The Maryland Court of Appeals ruled that the state can be held liable for negligence if a child dies after social service workers mishandle reports of child abuse or neglect. The case was brought by a father whose toddler son Collin was killed after he reported to child protective service workers that Collin was being physically abused while in the care of the boy's mother and her boyfriend. The child was 19 months old when Horridge began making reports in December 1999; Collin was beaten to death February 25, 2000. Horridge contends that DSS workers did not see Collin until four days after one of his reports and then failed to intervene, labeling him a "disgruntled parent."

In its ruling, the Maryland Court of Appeals stated, "We cannot conceive that the legislature intended, when a child is killed or injured, at least in part because DSS fails to perform the duties clearly cast upon it to make a site visit within 24 hours and a thorough investigation, for the only sanction to be the placement of a reprimand in some social worker's personnel file." The court held that, "The Legislature meant for DSS and its social workers to act immediately and aggressively when specific reports of abuse or neglect are made, and the best way to assure that is done is to find that they do have a special relationship with specific children ... and ... to make them liable if harm occurs because they fail in their mandated duty."

Census data show poverty and level of uninsured growing
August 2004
Income, Poverty and Health Insurance in the United States: 2003 http://www.census.gov/prod/2004pubs/p60-226.pdf

The U.S. Census Bureau released new data for 2003 on poverty, income, and health coverage. The data indicates the nation's official poverty rate rose from 12.1% in 2002 to 12.5% in 2003. The number of people without health insurance coverage rose by 1.4 million to 45.0 million, and the percentage of the nation's population without coverage grew from 15.2% in 2002 to 15.6%.

Criminal Victimization, 2003
Bureau of Justice Statistics Publication
Available online at:
http://www.ojp.usdoj.gov/bjs/abstract/cv03.htm

This report presents estimates of national levels and rates of personal and property victimization for the year 2003. Violent and property crime remain at lowest rates in 30 years.

Battered women's syndrome admissible even without prior evidence of abuse
August 2, 2004
California Supreme Court
People v. Brown

The California Supreme Court ruled that expert testimony on battered women's syndrome may be introduced at domestic violence trials, even in the absence of any prior evidence of abuse. At trial, the victim downplayed an incident of abuse by her boyfriend. Over defense opposition, a domestic violence counselor was allowed to testify that 80-85% of battered women recant their testimony before or at trial. Defense lawyers had argued that testimony on battered women's syndrome shouldn't be allowed in situations involving no prior abuse. The majority disagreed holding that such testimony is permitted because it may assist the judge in evaluating the credibility of the victim's courtroom testimony.

Victim's mother's past history of abuse not relevant
August 6, 2004
U.S. District Court for the Northern District of California
Kagel v. Scribner

The defendant's appealed his conviction for molesting his 5-year-old daughter. After his appeal in state court was denied, he filed this federal habeas corpus petition arguing that his right to a fair trial was violated because he was not allowed to cross examine his wife on her fear of sex when she testified against him at trial. The defendant appealed his conviction based saying the excluded evidence prevented him from receiving a fair trial. The federal court disagreed holding that the defendant failed to reasonably establish the relevancy of his wife's history. 

Physical evidence including sperm on the child's nightgown corroborated the child's account.  Defendant's defense included that he masturbated alone in the child's room, that his wife hated him, and that she had somehow influenced the victim to falsely report the abuse. The defendant asserted that his wife's history of abuse (non-sexual) by her father and a prior incident of date rape established a "bias she had concerning sexual issues." He argued that this bias, in turn, "could have unconsciously been transmitted to the victim."

The court ruled that there is "no convincing causal connection between physical abuse, a past incident of date rape, and a resulting abnormal sexual bias and wrongful influence over their daughter. Furthermore, the subject matter of the proposed cross-examination, the defendant's wife's non-public history of physical abuse and date rape, was of questionable relevance and highly prejudicial."

Testimony that therapists can implant memories not allowed
August 16, 2004
Court of Appeals of Texas, Fifth District
Dennis Wayne Ard v. the State of Texas

A jury convicted Dennis Wayne Ard of aggravated sexual assault of his 8-year-old nephew, B.C. The defendant argued that B.C's testimony was the "product of suggestive questioning by his parents and by improper interviewing techniques by his counselors." On appeal, Ard argued, among other things, that the trial court abused its discretion in excluding Dr. Michael Gottlieb's opinion that therapists could implant memories. After a hearing, the trial court had allowed Dr. Gottlieb to testify on memory in general, including memory degradation, the effect of age on memory, and the constructive quality of memory. The court also allowed him to testify that a person can adopt ideas if they are suggested to him over time, testimony may conform to social demands, and repetition over time can affect the way that a person inputs memory. The trial court refused, however, to allow testimony that psychotherapy, in and of itself, can reinforce implanted memory, cause implanted memory, or cause false outcry.

The appellate court ruled that the trial court did not abuse its discretion in excluding the proffered opinion. The appellate court noted that the trial court held a hearing to determine if Dr. Gottlieb's testimony was admissible. At this hearing, Dr. Gottlieb testified that while there are anecdotal reports of psychotherapists implanting memories, he could produce no studies that showed that therapists can and do implant memories by virtue of the fact that they are therapists. As a result, the trial court's ruling was not arbitrary or unreasonable.

Corruption uncovered in family court
August 18, 2004
New York Supreme Court

Brooklyn matrimonial Justice Gerald P. Garson has been charged with accepting bribes in return for giving a lawyer an edge in divorce cases and for referring clients to him. Surveillance tapes made in the judge's office show Justice Garson offering a lawyer detailed instructions on how to argue a case before him. The lawyer, Paul Siminovsky, was representing a man named Avraham Levi who was suing his wife for divorce. In return for cash, Justice Garson tells Siminovsky that he will award his client exclusive use of the house the couple lived in. The judge uses an expletive to describe how the decision would affect the client's estranged wife, Sigal Levi, the mother of his five children. Ms. Levi said that she had the feeling during the case that it had been fixed.

Need for 'companion' can trump no-pet rule
August 25, 2004
California Court of Appeal in Sacramento

According to the California Court of Appeal, a homeowners association's no-pets rule may be overridden by a resident's documented need for a "companion animal." The ruling is the first in the state to recognize the concept of a companion animal as therapy for a mental disorder such as depression. In its ruling, the court rejected the association's claim that the disability law requires accommodation only for a specially trained animal, like a guide dog for the blind.

Psychologist entitled to immunity for good faith report
August 27, 2004
Court of Appeals of Georgia, Third Division
Ouellett et al. v. Tillitski et al.

Jeannot Ouellet sued psychologist Christopher Tillitski for professional malpractice, false arrest, emotional distress, among other charges, after he filed a report of abuse regarding his son "Jason." Ouellet who had been accused of sexually abusing his son, brought the suit on behalf of himself and his son. Tillitski moved for summary judgment, arguing that he was entitled to immunity from this suit under the child abuse reporting statute. The trial court agreed and Ouellet appealed.

The Georgia Court of Appeals affirmed the judgment of trial court. The court noted that Jason came to Dr. Tillitski's care by means of a referral from a psychiatric hospital that saw the child on referral by the child's regular doctor. When Tillitski first saw Jason, he was five-years-old and had made statements to several persons about possible sexual abuse by his father. Based on his diagnosis of Jason as a victim of sexual abuse, Tillitski reported the matter to the Department of Family and Children Services (DFACS), who then contacted the Sheriff's Office. Ouellet's position was that the entire story about sexual abuse was fabricated by Jason's mother in order to gain an advantage in the ongoing battle over custody and visitation.

The appellate court noted that they were not called upon to resolve whether Tillitski was negligent and breached the standard of care for licensed psychologists in his diagnosis. However, it held that "Even assuming Defendant was negligent and used bad judgment, the Court finds that he is protected by the statutory immunity provision." "The court further held that, "As the statute and case law make clear, reports of suspected child abuse are to be encouraged, even at the expense of protecting someone who has made such a report that may prove to be wrong."

Woman who alleges assault sues polygraph examiner
August 29, 2004
U.S. District Court in San Diego

Authorities said a 21-year-old woman who alleges her uncle sexually assaulted her is suing a polygraph examiner who concluded the uncle appeared to be telling the truth when he denied the crime. According to the lawsuit, the uncle virtually admitted to the assault in a letter. However, the woman claims the polygraph results caused her family to question the verity of her allegations, and she became anorexic and sought help from a psychologist. The plaintiff contends that the polygraph results "caused far more emotional damage ... than the sexual attack."

Victim's past sexual history with defendant not admissible under rape-shield statute
September 1, 2004
Wisconsin Court of Appeals
State v. Timothy M. F.

After being found delinquent for committing multiple acts of physical and sexual abuse against his high school girlfriend, defendant appealed arguing that he was wrongly denied the opportunity to offer evidence at trial and that he was wrongly denied an in camera inspection of the victim's mental health records. Defendant sought to use as evidence at trial prior sex acts between himself and the victim along with the victim's mental health and counseling records. The motions were denied.

Defendant argued on appeal that his past sexual behavior with the victim was relevant to show a pattern of consensual behavior including the consensual use of a knife during sex. The court disagreed reasoning that the rape-shield statute precludes testimony about prior sexual behavior if it is inflammatory, even if probative. Moreover, given that the judge heard the evidence and there was no jury, any error was harmless. The defendant had argued that the lower court should have allowed an in camera review of the victim's counseling records and prescription drug history. The appellate court upheld the lower court's refusal to conduct this review noting that before there can even be an in camera review, the defendant has a substantial burden to make a preliminary showing of "a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence." The appellate court held that while the defendant has speculated at great length as to what the records may disclose about the victim's mental state, he has made no reasonable connection between the victim's alleged mental health issues and a determination of his guilt or innocence.

Evidence of prior abuse properly excluded
September 16, 2004
Court of Appeals, Michigan
Michigan v. Current

After being convicted of criminal sexual conduct, defendant Brian Allan Current appealed arguing his rights were violated when the court excluded evidence of prior abuse of the victim by other perpetrators under Michigan 's rape-shield statute. At trial, evidence was presented that the child victim had been raped and molested by the defendant. The defense sought to introduce evidence that the victim had previously been sexually assaulted in order to rebut the inference that the victim must be telling the truth about the defendant because there was no other way for the child to have knowledge of sexual activity consistent with the defendant's alleged conduct. The court disagreed, noting that the previous sexual abuse was not "significantly similar" to the current allegations since the prior incident included only allegations of penile/oral penetration which occurred outside of the home whereas the case at hand included allegations of oral, vaginal and anal penetration which occurred inside the home. Because the facts were not similar enough to justify admissibility, it was held that the trial the court had properly excluded the prior abuse under the rape-shield statute.

Judge says malpractice settlement can't be kept secret
September 20, 2004
Lackawanna County, Pennsylvania

A Lackawanna County judge has ruled against a doctor who sought to keep the details of a medical malpractice settlement secret. The case involved an obstetrician-gynecologist who was sued for failing to diagnose a woman who later died. The majority of the settlement is being paid from the MCare fund - the state-run insurance fund that covers catastrophic malpractice claims. The judge refused to seal the terms of the settlement saying that taxpayers have a right to know the amount of the award because they are picking up part of the tab.

Hospital liable for comment on abuse to the media
September 22, 2004
Arapahoe County, Colorado

Children's Hospital has been ordered to pay $1.2 million in damages for negligence, conspiracy and invasion of privacy for suggesting on national television that a father sexually abused his daughter. Peter Liggett sued the hospital and physician's assistant Donna Nelligan after she talked about the allegations against Liggett in a 1996 CNN broadcast called "Parental Alienation Syndrome," which examined parents who use children as pawns in custody disputes.

Liggett's wife raised allegations of sexual abuse during a bitter divorce 15 years ago when their daughter was 2. No initial evidence of abuse was found. The mother persisted in taking her child in for evaluations. In 1991, the girl's vaginal area showed changes from the previous year's exam and Nelligan reported the findings to social services. Eventually a judge ruled that the charges were without merit and entered an order barring any further examinations of the girl. The judge also barred disclosure of the information to anyone and barred those involved from talking to the media.

Bishop Indicted on Child Rape Charges
September 27, 2004
Hampden County, Massachusetts

Bishop Thomas Dupre, the former head of the Springfield Diocese, was indicted on child rape charges, accused of molesting two boys in the 1970s. Dupre, 70, is the first Roman Catholic bishop indicted in the sex abuse scandal within the American church. Citing health reasons, Dupre resigned after nine years as head of the diocese, one day after a Springfield newspaper published allegations that he abused two boys while he was a parish priest. Dupre retains the title of bishop.

Conviction overturned, court erred in not allowing expert testimony on false memories
September 29, 2004
Arizona Court of Appeals

Arizona state appellate court overturned child pornography convictions of a former second-grade teacher, Phillip Gregory Speers, saying he should have been allowed to introduce expert testimony on how interviews can implant false memories. Speers had previously been convicted of multiple counts of child molestation in a separate trial. The child pornography charges stemmed from photographs found in a computer in Speers' apartment. Speers denied knowingly possessing the photos so the prosecution had children allegedly molested by Speers testify as evidence of Speers' propensity to commit the pornography crime. The appellate court ruled that the trial court erred by not allowing Speers to present expert testimony on interviewing young children and avoiding implantation of false memories.

Illinois considers controversial child screening plan
October 2004

According to an article in the Psychiatric Times (Volume 21, issue 11), a draft of mental health screening guidelines were issued in July 2004 by the Illinois Children's Mental Health Partnership (ICMHP). The ICMHP was created by the Illinois Children's Health Act of 2003 and charged with development of a Children's Mental Health Plan. In forming its guidelines, the ICMHP incorporated recommendations made in 2003 by the Bush-appointed New Freedom Commission on Mental Health (NFC) report, which proposed a far-ranging reform of state mental health care systems. One of the five key recommendations in the report was: 'In a transformed mental health system, the early detection of mental health problems in children and adults--through routine and comprehensive testing and screening--will be an expected and typical occurrence.'" Critics worry that mandatory screenings will be required leading to troubled children being labeled as "mentally ill" and being pushed, by schools or the state, into medication regimens.

The article is online at: < http://www.psychiatrictimes.com/p041001a.html >.

Admission of Child Sexual Abuse Accommodation Syndrome upheld
October 1, 2004
Court of Appeal of California, Sixth Appellate
People v. Costella

After being convicted for molesting his daughter, the defendant appealed arguing that the trial court erred in allowing a police investigator to testify regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). During trial evidence was presented that the defendant engaged in sexual activity with the victim almost every weekend during scheduled visitation from age 6 to 10. Defendant told M. it was their secret and she should not tell anyone. The victim began to understand that her father's actions were wrong after she had sex education in sixth grade. At this point the defendant told her the sexual activity was her fault and that she should have said no earlier.

The sexual activity stopped when defendant's girlfriend moved into his house in 1996 when the victim was around age 11. The victim first told a boyfriend that defendant physically abused her in 1998 when she was between 13-14 years old. She later disclosed to a friend, but did not tell her mother until she was age 17. At this time, her mother contacted authorities and the defendant was arrested. At trial, over the objection of the defense, evidence on CSAAS was presented to help explain the victim's delay in disclosing the abuse.

The appellate court upheld the introduction of CSAAS finding that the expert was well qualified and CSAAS was not used to diagnosis, to evaluate the defendant psychologically, or to predict whether it is more likely a certain crime occurred. It held that the jury was properly instructed to use the testimony, not as proof that the alleged molestation occurred, but only for the limited purpose of showing that an alleged victim's behavior is not action inconsistent with having been molested.

Victim's rights
October 12, 2004
Connecticut Superior Court
Morrow v. Ripley

The defendant was accused of sexually abusing a 7-year old girl. While the criminal trial was pending, the defendant initiated a civil libel/slander suit against the grandmother of the young girl for the statements made against her. The defendant alleged that the girl's grandmother maliciously directed the child to make false allegations of sexual abuse, which led to her arrest and indictment. The grandmother requested that the court put the civil suit on hold until the completion of the criminal trial. The grandmother cited Connecticut law which provides for a stay of a civil action against a crime victim for statements made which implicate the defendant. However, the defendant argued that there was no "crime victim" within the meaning of the statute, because the criminal case was pending, and because the grandmother, against whom the suit was initiated, could not be considered a crime victim because she was not an immediate family member.

The court disagreed with the defendant and held that an individual alleging sexual abuse is correctly described as a crime victim and that as a relative to the minor girl, the grandmother was in fact a crime victim within the meaning of the statute. This status entitled the grandmother to protection from retaliatory civil litigation. In its ruling, the court noted that there is a clear public interest in the right of the victim to freely participate in a criminal proceeding without fear of a civil action arising from the complaints against the defendant and to participate in the criminal prosecution without fear of intimidation.

Defense expert must comply with established rules of procedure and evidence
October 15, 2004
United States Court of Appeals, Eleventh Circuit, Georgia
U.S. v. Frazier

After being convicted of kidnapping, the defendant appealed claiming that the district court abused its discretion by excluding certain expert testimony of a forensic investigator, while allowing the government to present expert evidence on the same issue. The defense had introduced evidence that investigators failed to recover any inculpatory hairs or seminal fluids, to impeach the victim's testimony that the defendant had forced her to have sexual intercourse with him. The district court then allowed the prosecution to put on an expert who testified that this was not necessarily inconsistent with fact that there had been sexual intercourse between parties. The defendant sought to counter with his own expert who would testify that he would have "expected" some inculpatory hairs or seminal fluid to be recovered from victim if she had actually been raped. The district court refused to allow the testimony holding that it did not satisfy established rules of evidence.

After reviewing the record, the appellate court affirmed the conviction holding that the district court's evidentiary rulings were neither an abuse of discretion, nor "manifestly erroneous." The appellate court held that by introducing fact that investigators had failed to recover any inculpatory hairs or seminal fluids from victim and by arguing the significance of that failure, the defendant opened the door for government to offer reliable expert testimony in rebuttal. In seeking to put on an opposing expert, the accused, just like the state, must comply with established rules of evidence and satisfy the burden of establishing that proffered expert testimony satisfies the qualification, reliability and helpfulness tests for admission into evidence. It found that the defense expert's proffered testimony that hairs or fluid would be "expected" was inherently ambiguous as no scientific basis about the frequency of hair or semen transfer was offered to back the forensic investigator's statement. The court noted that even assuming that district court erred in refusing to permit qualified forensic investigator to testify, any such error was harmless as the testimony was offered merely for purpose of impeaching victim's testimony, rather than as substantive evidence on kidnapping charge. It noted that there was substantial evidence of the defendant's guilt, including his flight at speeds of up to 100 miles per hour.

Incest victim seeks to keep the name of her perpetrator off a public sex offender list
October 24, 2003
Minnehaha County Circuit Court, South Dakota

An unidentified woman -- listed as Jane Doe in court papers -- sued Minnehaha County and the city of Sioux Falls to stop them from posting the name of the family member who abused her on the Internet. The woman's lawyers argued that making the name public could identify the victim, who by nature of the crime has to be a family member. But lawyers for the city, county and state argued that victims don't necessarily have to be immediate family; they can include nieces, nephews, cousins or other distant relatives. The judge ruled against the woman, saying state law is quite clear that information on people who commit sex crimes is public and should be available.

Battered women should not automatically lose child custody
October 26, 2004

New York Court of Appeals
Nicholson v. Scoppetta

The New York Court of Appeals held that children could not be removed from the home on the basis of abuse and neglect simply because their mothers suffered from "domestic violence." The ruling came in a class action for violation of civil rights against New York City 's Administration for Children's Services. The plaintiffs challenged the practice of removing children from their mothers without a hearing on the grounds that the mothers "engaged in domestic violence" and were neglectful for failing to "protect the child or children from exposure" to assaults.

The court ruled against the automatic removal of children from abused mothers, reasoning as follows:

I. The fact that a child has been "exposed" to domestic violence is not sufficient to establish neglect under NY law. It would create an unacceptable presumption against battered women to remove the child simply because she "allows the child to witness" domestic abuse."

II. Exposing a child to domestic violence is not presumptively neglectful. Legislative findings about the harms of witnessing violence do not justify removal without a hearing on the child's best interests as well as whether the child's health or life is at imminent risk, with a preference for avoiding removal from the home.

III. There can be no blanket presumption, each case is fact-specific. Thus the fact that the child witnessed abuse is not sufficient to justify removal as "necessary" or in the "child's best interests." Rather, a court must weigh whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. In each case, the court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests.

You can read the entire decision at: http://www.nycourts.gov/courts/appeals/decisions/oct04/oct04.htm

Confession made during treatment not privileged
October 28, 2004

Texas Appeals
Licea v. Texas

After being convicted for sexually assaulting a child, the defendant appealed claiming that the trial court erred when it allowed the admission of statements he made to a social worker during voluntary treatment at a hospital. The statements were made in group therapy sessions with social worker during a voluntarily hospitalization for treatment of depression and alcohol abuse. During therapy the defendant expressed remorse and guilt related to the molestation charges by his victim. According to the defendant, the statements were inadmissible as privileged communication.

The court disagreed noting that in criminal proceedings there is no physician-patient privilege. While there is an exception in Texas [Tex. R. Evid. 509(b)] for communications involving "any person involved in treatment or examination of alcohol or drug abuse by a person being treated voluntarily for alcohol or drug abuse," the court found that the defendant participated in group therapy primarily for his depression and suicidal ideation rather than for his substance problem. Thus, Tex. R. Evid. 509(b) did not apply and the trial court did not abuse its discretion in admitting the social worker's testimony.

Report: High medical costs force many parents to place mentally ill child into foster care
November, 2004
Virginia General Assembly

According to a report by the Virginia General Assembly, almost one of every four children in Virginia 's foster care system is there because parents want the child to have mental health treatment. The report is based on an analysis of the Department of Social Services database. It found that of the 8,702 children in foster care as of June 1, "2,008 . . . appear to be in custody to obtain treatment." The report finds that the problem is due to inadequate access to mental health treatment. The cost of caring for severe conditions such as schizophrenia, severe depression or bipolar disorder is so high that insurance providers will not fully cover it. At the same time, many families with mentally ill children make too much money to be eligible for Medicaid. As a result, parents often have to relinquish custody of their children to the foster care system so they can get mental health services that are otherwise unavailable or unaffordable. The report's recommendations include increasing funding for the Comprehensive Services Act, which is designed to provide money for mental health services for children and to help families access private insurance for mental health services.

Recovered memory claim time-barred
November 2, 2004
Court of Appeals of Missouri, Western District
Harris v. Hollingsworth

The plaintiff seeks to sue her abuser saying that suffered damage from the sexual abuse during her childhood and adolescence and repressed the memory of the events until the 1980s. The appellate court denied her appeal, and in her motion for rehearing, the plaintiff argues that this court failed to give her the benefit of the inference that her repressed memory prevented ascertainment of injury. As of 1987, Missouri did not apply the "discovery test" to repressed memories, but at that time still applied the test of whether an injury was "capable of ascertainment."

The plaintiff argued that recent decisions of suggest that the Missouri Supreme Court now considers repressed memory as not capable of ascertainment and, accordingly, asked that the appellate court grant rehearing or transfer to the Supreme Court. She pointed to several cases which suggest that under §516.100, in cases of repressed memory, childhood sexual abuse claims may not accrue until awareness of the fact of the sexual battery is recovered."

Her motion was denied. Although the appellate agreed that the Missouri law relating to the accrual of a cause of action for childhood sexual abuse was arguably altered in 1995 and 1996 through the decisions in Sheehan and K.G. , the appellate court held that these decisions could not be applied retroactively to resuscitate a claim already time-barred.

Rape conviction reversed based on Crawford
November 4, 2004
Court of appeals of Michigan
Michigan v. Mileski

After being convicted of rape, Michael Bart Mileski appealed saying he was denied his right to confrontation as guaranteed by the U.S. and Michigan Constitutions by the admission into evidence of the complainant's out-of-court statements in lieu of in-court testimony. The victim in this case was an adult woman. On the first day of trial, the prosecution announced that she would not be testifying, despite being listed as a witness. Instead, the prosecution admitted three hearsay statements made by the victim. Under the U.S. Supreme Court's ruling in Crawford, for testimonial statements to be admissible, the Sixth Amendment requires both the unavailability of the declarant and a prior opportunity for cross-examination. An exception is made for excited utterances made while the declarant was under the stress of the excitement caused by the event.

After reviewing the record, the appellate court found that a hearsay statement made to a neighbor who found the complainant naked and screaming outside her door was properly admitted. However the other two statements, one to the police officer and one to a forensic nurse at the hospital, were judged as testimonial. In the case of the nurse, the court held that the in her examination of the complainant, the SANE nurse acted as an arm of the police and prosecution and thus the statement at issue was "testimonial" and excluded under Crawford. The court reversed his conviction and remanded his case for a new trial.

Excited utterance by young child sufficient to sustain a conviction
November 4, 2004
Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
In Re: D. M., A Minor,

In this case, the Ohio Appellate Court found that even if a child is too young and thus incompetent to testify, an excited utterance made by that child to another is still admissible and may be enough in and of itself to sustain a conviction. On June 27, 2003, a complaint for one count of rape was filed against D.M., a minor, for sexually abusing his 3-year-old cousin. At the adjudicatory hearing, the mother of the victim testified her 14-year-old nephew, D.M., was babysitting her 3-year-old son and 9-year-old daughter. The next morning, the 3-year-old told her, "Mom, Little D licked my weenie." The mother immediately called D.M.'s father who advised her to call the police. They reported that D.M.'s had previously abused other children. When she asked D.M. about the allegation, he laughed and denied it.

The defense argued that D.M.'s right to confront witnesses was violated when the trial court allowed the victim's mother to testify regarding her 3-year-old son's statement implicating D.M. Because the child was calm when disclosing the abuse, the defense argued that it was not an excited utterance. The court disagreed noted that the statement by the child was spontaneous and his mother had not prompted him by asking questions. Additionally, the statement concerned a subject ordinarily foreign to a 3-year-old child. In addition, the appellate court noted that, while the victim's excited utterance was the only evidence of the abuse, the court ruled the evidence was sufficient to sustain the conviction.

Order for victim's unsupervised visitation with convicted sex offender overturned
November 9, 2004
Missouri Court of Appeals Eastern District
In re the Marriage of M.A. and M.S. M.A.

The Missouri Court of Appeals overturned an order requiring a victim to have visitation with her molester. Mother, M.A., and father, M.S., were married in 1986. In 1990, they adopted two infants R.S. ("daughter") and J.S. ("son") from Peru . In 1992, father confessed to his clergy that he had been molesting daughter since her adoption, and told mother. He also confessed to having molested another child year before. After this confession, father continued abusing his daughter. His clergyman referred father to a psychologist who reported the abuse. Father was charged with and pleaded guilty to two counts of felony sodomy and was given a suspended imposition of sentence and placed on probation for 5 years.

Because of the molestation of daughter, mother filed for dissolution. The 1995 dissolution decree gave mother primary legal and physical custody of son and daughter and granted father weekly supervised visitation with the children. In 2001, father filed a motion requesting the court to allow his visits with the parties' two children to be unsupervised and to change the children's custodial arrangement from sole legal custody in mother to joint legal custody. Mother filed a motion to dismiss father's motion and to terminate father's visitation rights as specified by current Missouri law.

The trial court denied mother's motions. Instead, it found that father had successfully completed a sexual abuse program and was therefore rehabilitated. The court awarded mother and father joint legal custody, allowed father unsupervised visitation with son, and continued to require father's visitation with daughter to be supervised "until such time as Mother and Father agree to it being unsupervised or the Court orders otherwise." The court also approved father's present wife as a supervisor and set aside all previous orders governing the selection of supervisors and supervision criteria.

Mother appealed. The appellate court reversed with respect to the 1) denial of the motions to terminate visitation with respect to daughter, 2) the award of joint legal custody, and 3) designation of father's wife as supervisor of father's visitation. The court noted that Missouri statute clearly precludes father's visitation of daughter since she was the victim of father's sodomy offense. However, it does not clearly preclude visitation with son, since son was not the child who was abused. However, the appellate court found that the trial court's order for immediate unsupervised visitation for the son was not supported by substantial evidence. The appellate court also found that trial court erred in granting joint legal custody when there was "no evidence that both parents had a commonality of beliefs concerning parental decisions and a willingness to function as a parental unit." Finally, the trial court's order designating father's present wife as supervisor of his visitation was void because no pleadings were filed requesting that father's wife be appointed as supervisor and no evidence was presented of her qualifications to be a supervisor.

Report: Strong link between child abuse, neglect and crime in Maine
November 16, 2004
Fight Crime: Invest in Kids Maine ( www.fightcrime.org/me )

A bipartisan organization of Maine law enforcement leaders and crime victims released a report documenting a strong link between child abuse and neglect and subsequent criminal behavior in Maine . According to the report, of the 3,746 children in Maine who were victims of abuse and neglect in 2002, as many as 150 will grow up to become violent criminals because of the abuse and neglect they endured. According to the group, most abuse and neglect can be prevented and that in-home parent coaching programs can cut child abuse and neglect by as much as 80%.

First conviction under new federal sex tourism law
November 17, 2004
California

John W. Seljan was found guilty of attempting to travel to the Philippines to sexually molest girls in violation of a new federal law aimed at fighting sex tourism. Seljan was arrested at Los Angeles International Airport , where he allegedly attempted to board a flight with child pornography, sexual aids and nearly 100 pounds of chocolate. Seljan told investigators he had "sexually educated" young girls in the Philippines with their parents' consent since 1983, and that he believed it was legal and culturally accepted in that country. A judge found the 86-year-old retired business owner guilty of six counts, including attempting to travel for the purpose of having sex with minors and possession of child pornography. Seljan was arrested under the Protect Act, enacted in 2003, which made it easier to prosecute those who molest children overseas and increased penalties. Seljan faces a minimum term of 10 years in prison and a maximum of 270 years when he is sentenced in March.

Connecticut's high court limits liability for physicians who evaluate children in suspected abuse cases
December 20, 2004
Connecticut Supreme Court

In a unanimous decision, the Connecticut Supreme Court expanded protection from negligence and medical malpractice lawsuits to professionals who participate in the investigation of child abuse findings. The court's decision effectively ends a lawsuit filed by a Norwich couple whose two young children were taken from them for several days in April 2001. The coupled had sued Dr. Robert Creutz an emergency room doctor who evaluated the children for Child Protective Services. Dr. Creutz X-rayed and examined the children. Although he found no fractures, he suspected child abuse because of the number and nature of the bruises covering one of the children. The bruising was later found to be due to a blood disorder - a possibility that Creutz had failed to test for. The children were returned and the parents sued Dr. Creutz for negligent infliction of emotional distress and medical malpractice.

The Superior Court granted a motion for summary judgment in favor of Creutz and the hospital, saying, "We want to protect doctors and other people who we rely on to protect our children to feel free to participate in this often highly-charged and potentially legal minefield-like environment." The Superior Court Judge ruled that it did not matter that Creutz was not acting in the role of "mandated reporter of child abuse," as the law granting immunity from negligence lawsuits specifies. "[Creutz] is immune as somebody who is part of the evaluative process of detecting and hopefully averting the mistreatment of children."

The Norwich couple appealed to Connecticut 's highest court which affirmed the lower court's findings. Connecticut 's Supreme Court stated: "Our construction of [state law] as extending immunity to secondary reporters of child abuse ... is consistent with the legislature's recognition of the important roles of medical professionals in the investigation of child abuse."

Crawford ruling on hearsay not retroactive
December 28, 2004
U.S. Court of Appeals, 2nd Circuit, New York
Mungo v. Duncan

In a unanimous ruling the 2nd U.S. Circuit Court of Appeals, like prior federal courts who have taken up the issue, ruled that Crawford is not retroactive, and thus cannot be used to reopen old convictions. Crawford was a landmark ruling in which the U.S. Supreme Court imposed limits on hearsay exceptions that allowed prosecutors to introduce testimonial statements from witnesses who had not been cross-examined. According to the current ruling, the question of retroactivity depends on whether the new rule was necessary to the fundamental fairness and accuracy of criminal trials. However, the court noted that the Crawford rule does not meet this test as it is likely to improve accuracy in some circumstances and diminish it in others. For instance, while Crawford would likely improve accuracy by excluding unreliable hearsay, it could also reduce accuracy by preventing juries from hearing reliable out-of-court statements that were previously admissible. For this reason, the court held that Crawford cannot be applied retroactively.

Charges dropped, recovered memories not enough
December 29, 2004
Baltimore, Maryland

Charges were dropped against McCormick Elementary School Principal Kevin M. Lindsey. McCormick was accused of sexually assaulting two former pupils. The two sisters went to the police after recovering memories of the abuse by McCormick when he was their teacher at Pine Grove Elementary in Carney in the 1970s. The charges were found to be credible and McCormick was arrested and charged with several counts of child abuse. Finding that mental health experts are far apart on the accuracy and validity of recovered memories, the prosecutor was worried that they couldn't sustain the burden of proof beyond a reasonable doubt and the charges were dropped.

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