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Legal Update 2005

Record $100 million settlement for clergy abuse by Roman Catholic Diocese of Orange County
January 4, 2005
Orange County, California

Details of a record $100 million settlement with the Roman Catholic Diocese of Orange were unsealed after the settlement was finalized. The settlement resolves 90 lawsuits against the diocese that included sexual abuse allegations against 31 priests, 10 lay personnel, one religious brother and two nuns. The earliest allegation dated to 1936; the latest was 1996. Half of the payout will come from the diocese and the other half will be paid by its eight insurance carriers.

New Mexico psychologists first in the nation to able to prescribe drugs
January 7, 2005

New Mexico is the first state to allow psychologists to prescribe drugs to treat their clients' mental illnesses. In order to prescribe drugs, psychologist must first be certified by the state Board of Psychologist Examiners. To be certified, an applicant must have a doctoral degree in psychology and be licensed to practice in the state. After that, applicants need 450 classroom hours of training in diagnosis and drug treatment of mental illnesses, along with 80 hours of practice in clinical assessment of patients. The final stage of training requires 400 hours of practice in seeing patients and prescribing medications for at least 100 of them. There is still disagreement over exactly what medications psychologists will be allowed to prescribe.

Orange County clergy settlement finalized
January 4, 2005

A record $100 million settlement was reached between the Roman Catholic Diocese of Orange County and numerous people who claimed to have been abused by employees of the Diocese. The settlement resolves 90 lawsuits against the diocese that included allegations against 31 priests, 10 lay personnel, one religious brother and two nuns. The earliest allegation dated to 1936; the latest was 1996. The settlement is the single largest clergy abuse settlement to date. Half of the payout will come from the diocese and the other half will be paid by its eight insurance carriers. The agreement also calls for the release of nearly all confidential documents from diocesan personnel files of the accused after a judge's review.

Crawford: Child sexual assault victim's statements to Grandmother testimonial
January 28, 2005
Illinois Appellate Court
People v. E.H

The defendant, a 13-year-old girl, was convicted of sexual assault against B.R. and K.R., who were two and five years old, respectively. Both victims described the assault to their grandmother. At trial, K.R. testified against the defendant. B.R. did not testify. However, the grandmother testified to what she had been told by B.R. On appeal, the defendant argues that the admission of B.R.'s out of court statements violated her confrontation rights. The Court agreed holding that B.R.'s statement to her grandmother was within the purview of Crawford because the statement was accusatory testimony against the defendant that was offered for the truth of the matter asserted. The case was reversed and remanded.

High court overturns custody ruling
January 21, 2005
Illinois Supreme Court

The Illinois Supreme Court overturned a case in which custody of a 5-year-old boy went to grandparents who allegedly physically abused him instead of to a lesbian foster parent. The boy was taken from his mother after she was found to have abused her other children and he was sent to live with his maternal grandparents. A few months later, the boy was transferred to state custody after child protection workers found he suffered fractures while living with his grandparents. He was placed in foster care. However, the boy's court advocate asked the Madison County court to send him back to his grandparents. The court agreed he was better off living with them rather than with his foster parent, a lesbian living with her partner. The Supreme Court said the Madison County judge incorrectly rejected evidence of abuse presented by the Department of Children and Family Services, and it ordered the boy back to state care. DCFS spokeswoman Diane Jackson said the agency plans to move forward with allowing the foster parent to adopt the child.

No absolute immunity for peer reviewers
February 15, 2005
Connecticut Supreme Court
Chadha v. Charlotte Hungerford Hospital , et. al.:
< http://www.jud.state.ct.us/external/supapp/cases/arocr/cr272/272cr157.pdf >

The Connecticut Supreme Court ruling, which upholds an appellate court decision, allows psychiatrist Mohinder P. Chadha, MD to pursue a civil lawsuit against several physicians and a hospital. This ruling has implications for Connecticut physicians who participate in peer review or initiate investigations into a colleague's conduct, even if a report is made in good faith. Chadha claims that his colleagues defamed his reputation by giving their opinions of his emotional health to the state Department of Health. The American Medical Association-State Medical Societies Litigation Center and the Connecticut State Medical Society filed amici curiae briefs supporting full immunity for physicians who report a colleague. They pointed out it is already a substantial burden for physicians to come forward and report a colleague. The court's unanimous decision to not guarantee absolute immunity to physicians could discourage some doctors from coming forward because of the threat of legal retribution and the potential cost of defending themselves in court.

Supreme Court abolishes death penalty for minors
March 1, 2005
U.S. Supreme Court decision
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-633&friend=washingtonpost

 At the age of 17, when he was still a junior in high school, Christopher Simmons, planned and committed murder because he wanted to know how it felt to kill someone. He later bragged about the crime. About nine months later, after he had turned 18, he was tried and sentenced to death. He appealed his case saying that execution of a minor was unconstitutional. The Missouri Supreme Court agreed and set aside Simmons' death sentence in favor of life imprisonment without eligibility for release.

On March 1 st , the U.S. Supreme Court upheld the Missouri Court's decision ruling that t he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.  The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The provision is applicable to the States through the Fourteenth Amendment. Citing the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice, the Court held that there was a growing consensus against executing minors. This trend was found to provide sufficient evidence that today our society views juveniles as categorically less culpable than the average criminal.

Angelina Jolie helps fund legal center for young refugees
March 8, 2005
Washington, D.C.

Actress Angelina Jolie, goodwill ambassador for the United Nations' refugee agency, announced the founding of the National Center for Refugee and Immigrant Children at a National Press Club luncheon . The new center will help provide pro bono legal aid for the more than 5,000 refugee children a year who arrive alone in the United States . Many of these children are seeking asylum to escape the persecution, abuse or sex trafficking they have endured. However, once they are taken into custody, the children are not provided with any legal assistance to help them navigate the complex legal system. In her talk, Jolie noted the fact that can be humiliating and traumatizing for a child who was sexually trafficked to be asked by a judge to explain exhaustively what happened or for a child whose parents were slain in front of him to be asked to recall every detail. In addition, the hearings before the U.S. Department of Justice's immigration courts or state juvenile courts are held in English, a language that most of the young refugees do not understand. Without an attorney's assistance, they are likely to be denied legal protection and residency in the United States and may be returned to abusive conditions.

Through training and mentoring programs, the center will provide tactical guidance in preparing cases and will assist lawyers representing unaccompanied minors seeking asylum. The center is a partnership of the U.S. Committee for Refugees and Immigrants and the American Immigration Lawyers Association. It is funded by the U.N. High Commissioner for Refugees through a $500,000 grant provided by Jolie.

Mental-health parity approved in state of Washington
March 9, 2005

SHB 1154, the mental health insurance parity bill, was signed into law by Washington Governor Gregoire. Set to begin January 2006, health-benefit plans that provide coverage for medical and surgical services must provide similar coverage for mental-health services and prescription drugs to treat mental disorders. The co-pay or co-insurance for mental-health services may be no more than the co-pay or co-insurance for medical and surgical services otherwise provided under the plan. Mental-health drugs must be covered to the same extent, and under the same terms and conditions, as other prescription drugs covered by the plan. In the years that follow, the bill provides that further steps will be taken to assure that mental-health services are comparable to health services provided for other health problems. Employers with 50 or fewer employees will be exempt from mandatory parity coverage.

Ohio court overturns time limitations for sex-abuse trial
March 7, 2005
Ohio 's Court of Appeals, Third District
Cincinnati, Ohio

In a decision that could affect clerical sexual abuse cases statewide, Ohio 's 3rd District Court of Appeals ruled that a civil suit filed against the Archdiocese of Cincinnati can proceed even though the statute of limitations has expired. The ruling reverses a Shelby County Common Pleas Court decision to throw out the lawsuit because it was not filed within two years after turning 18. The alleged victim, who filed anonymously as John Doe, claimed that he was abused by the Rev. Thomas Hopp. In 2002, Father Hopp admitted that he abused the victim as a minor. The appellate court agreed with the victim, holding that the statute of limitations should not apply for a number of reasons, including his arguments that the archdiocese failed to report the priest's alleged crimes to law enforcement authorities, that it concealed the alleged abuse, and that it engaged in "a pattern of corrupt activities." The archdiocese says that it will appeal the ruling to the Ohio Supreme Court.

False memory defense fails
Daily Herald
Aurora, Illinois
March 12, 2005

Gymnastics coach Michael P. Cardamone was charged with sexually molesting 14 girls when they were students under his tutelage at his family-owned American Institute of Gymnastics in Aurora , Illinois . The girls, now ages 8 to 16, said Cardamone touched them beneath their leotards during stretching exercises within the gym. The defense team called 80 gymnasts, parents, teachers and coaches who said they never saw Cardamone act in an inappropriate manner. The defense dismissed the accusations were false memories. They suggested that the charges began in the imagination of one child and then spread through gossip to include other girls, and developed into false memories after suggestive questioning. The jury did not agree and Cardamone was convicted of fondling seven of the 14 girls. His lawyers plan to appeal.

"Battered parent" defense questioned
March 14, 2005
Belknap Superior Court
Florida

A man accused of abusing his stepson claimed he was driven to it by the bad behavior by the boy and his brother. Steven Weiner, 44, who is accused of holding down his 10-year-old stepson while the boy's mother allegedly stabbed him with a steak knife, blamed the behavior on being tormented by the boy and his 13-year-old brother. In papers filed at Belknap Superior Court, lawyer James Carroll said Weiner was pushed beyond reason by "years of intentional and purposeful behavior by the two minor children." The claim was a variation of battered woman syndrome, a recognized defense in murder cases in which a victim kills an abusive spouse. In those cases, the battered partner, robbed of all security, can believe she had no choice but to kill her spouse to protect herself from violence. However, Steven Weiner found little support in court or among family violence experts for "battered parent syndrome" as a legal defense and withdrew the defense after a prosecutor and the boys' state-appointed guardian objected.

Custody case, parent must be allowed to call experts
March 24, 2005
Supreme Court of New York, Appellate Division, First Department
In re Fatima M.

In 2000, the Administration for Children's Services (ACS) investigated the home of parents Rashad M. and Bernadine M. They found that the father was abusing drugs and the mother was schizophrenic. In addition, two of the daughters revealed chronic sexual abuse. In December 2002, New York Family Court found two of the children abused and all five children neglected. The parents appealed and the New York appellate court reversed the ruling and remanded the case for rehearing. The appellate court objected to the fact that the father had not been allowed to present his own expert to counter his daughter's accusations.

In its ruling, the appellate court stated: "While petitioner and the law guardian were allowed to present their own experts, who opined that the twin girls had been subject to sexual abuse by their father, respondent father himself was not allowed to have an expert. By not allowing respondent father to present an expert, he was effectively precluded from fully exploring the possibility that Aquellah's accusations were a manifestation of her psychiatric problems. As such, his ability to present a defense was severely curtailed. While we are not insensitive to the effect on the children here, there was no evidence that this additional interview would traumatize either child. By the conclusion of the fact-finding hearing, the twins were 16 years old and had been away from their parents for more than 18 months. Thus, it was an abuse of the court's discretion to have denied respondent's application to have his own expert examine the children, where there was a demonstrated need, and no evidence that the children would suffer any appreciable additional harm"

Civilian therapist fights Air Force subpoena for therapy records of cadet
April 5, 2005
Colorado Springs, Colorado

Facing threat of arrest, a Colorado Springs therapist has enlisted the help of Attorney Wendy Murphy, a Boston lawyer known for championing the confidentiality rights of rape-crisis centers. The move helps postpone a trip by federal marshals who are trying to force civilian therapist Jennifer Bier to accompany them to Randolph Air Force Base in Texas as part of court-martial proceedings against former Air Force Academy cadet Joseph Harding. Harding, who is accused of raping two fellow cadets, is seeking the records in an attempt to discover information that might cast doubt on his alleged victim's allegations. Bier is trying to protect the confidentiality of her counseling sessions with one of Harding's victims. Bier contents that revealing such sensitive information would conflict with her ethics and deter other women from seeking treatment in the future.

Bier's attorney has persuaded Randolph Air Force Base officials to provide more time so she can file a brief with the judge arguing for a reversal on the basis that the subpoena is unconstitutional. Bier and her attorney plan to argue that the defendant has no right to ask for her records, and the victim has a fundamental constitutional right to keep it private. Several U.S. lawmakers, including Sen. Wayne Allard, R-Colo., have decried the Air Force's move, saying the records belong to Bier and not the military.

April 20 th marks HIPAA's third deadline
April 11, 2005

HIPAA, the Health Insurance Portability and Accountability Act, set forth a series of three rules. The medical records privacy and electronic health care transactions rules have already gone into effect. The deadline for compliance with the third and final rule -- the security regulation -- was April 20 th . Compared to the other rules, little federal guidance has been offered for how to implement the security rule. Providers have been encouraged to think in terms of implementing security protocols such as password protecting computers and keeping files in locked rooms. Government officials have announced that enforcement will be modeled on the approach used for the privacy and electronic transaction rules. In other words it will be complaint-driven and emphasis will be placed on working with physicians, rather than imposing penalties.

HIPAA & Forensic Practice,
Originally published in American Psychology-Law Society News, 23(2) Summer 2003
Available online: http://www.ap-ls.org/publications/newsletters/summer2003.pdf

Examines whether the Health Insurance Portability and Accountability Act (HIPAA) may apply to forensic practice and whether files and the information compiled by forensic practitioners constitute Protected Health Information (PHI).

Ethics Codes & Practice Guidelines for Assessment, Therapy, Counseling, & Forensic Practice
http://kspope.com/ethcodes/index.php

This page presents links to therapy, counseling, forensic, and related ethics (and practice) codes developed by professional organizations (e.g., of psychologists, psychiatrists, social workers, marriage and family counselors). Codes are listed only if they appear online.

Malpractice & Licensing Pitfalls for Therapists: A Defense Attorney's List
Originally published by Professional Resource Press.
Available online at: http://kspope.com/ethics/malpractice.php

A defense attorney identifies some of the more common areas where therapists leave themselves vulnerable to attack.

Searchable mental health services locator
The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA)
Available online at: http://www.mentalhealth.org/databases

This Locator provides comprehensive information about mental health services and resources and is useful for professionals, consumers and their families, and the public. You can access this information in several ways by selecting a State of U.S. Territory from the map or drop-down menu."

Searchable drug and alcohol programs locator
The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA)
Available online at: http://dasis3.samhsa.gov

This Locator provides a searchable database of over 11,000 alcohol and drug addiction programs.

Child protective services can be sued for wrongful death in abuse case
April 21, 2005
Minnesota Supreme Court
Radke v. County of Freeborn

The Minnesota Supreme Court held that child protection workers can be sued in wrongful death suits.  Matthew Radke sued Freeborn County and two county child protection workers alleging that they negligently investigated reports of suspected abuse of his son Makaio. Nineteen-month-old Makaio was beaten to death on April 21, 2001 by Paul Gutierrez, a friend of his mother's. The father and professionals had made numerous reports of abuse. After only cursory investigations, the Freeborn County Department of Human Services determined that no abuse had occurred and closed the cases. Soon afterward, another report of abuse was made and the investigator found signs of abuse but took no action. Later that day the child died from extensive internal injuries. Gutierrez was subsequently convicted of two counts of first-degree murder by criminal sexual conduct and by child abuse, and one count of second-degree murder. 

The district court granted respondents' motion to dismiss and the Minnesota court of appeals affirmed. The Minnesota Supreme Court reversed holding that the agency has a duty to protect children and that a cause of action exists for wrongful death based on the alleged negligence of the county and two county child protection workers in their investigation of child abuse. The high court held that when a statute makes a certain act mandatory for a government unit to protect a particular class of persons, a special duty is created. Since mandatory reporters must report child abuse, and then the authorities must conduct an assessment, collect information and remove the child if necessary, this means there is a special duty to protect these children.

Repressed memories rejected in criminal case
April 19, 2005
Rockingham County Superior Court, New Hampshire state

Rhianna Light, 18, reported her father for abusing her as a young child. She claimed that she began recalling memories of sexual abuse by her father in 2001, first only in fragments, and later in full memories. Rockingham County Superior Court Judge Tina Nadeau threw out the case holding that repressed memories were too unreliable to be admitted into the courtroom.

A New Hampshire state law, known as the Hungerford Law, prevents repressed and recovered memories from being admitted in court unless eight criteria are met. Four of the criteria concern the reliability of the science, and four are specific to the individual whose memories are in question - having to do with the age of the accuser when the alleged abuse took place, specific circumstances surrounding the abuse and the recovery process of the memories.

The court cited five reasons for its decision: (1) the fact that Light was "engaged in psychological counseling consistently from the time she was 4 years old through the present"; (2) the fact that the disclosures were made during a "heated custody battle"; (3) Light's age at the time the events allegedly occurred; (4) the fact that the assistant county attorney requested Light attempt to retrieve more-specific memories of abuse; and (5) the fact that "the court can find no corroboration for the alleged abuse." The court further noted that the phenomenon of repressed memory recovery has not yet been scientifically accepted.

Psychologists can report child abuse confessions
April 22, 2005
Alabama Supreme Court

According to the Alabama Supreme Court, two Huntsville psychologists did not violate psychotherapist-patient privilege when they reported to authorities the statements of a client who discussed fondling two young girls during his therapy. David Kenneth Marks sued the therapists claiming that his admission came during a therapy session after the doctor had assured him that anything he disclosed during the meeting would remain confidential. The Alabama high court held that psychotherapist-patient privilege must yield to child-abuse reporting laws. The court also noted that Alabama law grants immunity from liability to anyone who makes "a good faith" report of suspected child abuse.

Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings From the National Juvenile Online Victimization Study,
May 2005
National Center for Missing & Exploited Children
Available online at: http://www.missingkids.com/en_US/publications/NC144.pdf

This groundbreaking national survey of law enforcement estimates the number of arrests for child-pornography possessors in Internet-related crimes and describes the characteristics of the offenders, the crimes they commit, and their victims. The report was produced in cooperation with OJJDP and the University of New Hampshire 's Crimes against Children Research Center .

Jury awards $35 million to abused girl in case against CPS
May 17, 2005
Palm Beach County, Florida

A jury awarded 6-year-old Marissa Amora a $35 million judgment in her negligence case against the state for failing to protect her from brutal abuse that has left her permanently disabled. The jurors determined Marissa would need $20.6 million for medical care and related expenses for the rest of her life. They awarded the child, who likely will undergo surgeries for years to come, another $11.25 million for future pain and suffering. Marissa lives with a foster mother who cares for medically needy and disabled children. The state is expected to appeal the verdict. If the verdict is upheld, Marissa must plea her case before the Legislature. Florida law caps judgments against the state at $100,000 -- anything above this amount must be approved by the Legislature.

Domestic violence victims protected under fair housing act
May 19, 2005
U.S. District Court for the District of Vermont

A Vermont woman settled a lawsuit with her landlord after winning a ruling in federal court. The U.S. District Court for the District of Vermont held that that the Fair Housing Act provides protection against eviction for domestic violence victims. Quinn Bouley had called the police who arrested her husband after he attacked her. Bouley s landlord, who blamed Bouley for the violence that had occurred in the apartment, then tried to evict Bouley and her children. With the help of Vermont Legal Aid and the Women s Rights Project of The American Civil Liberties Union, Bouley filed a Title 8 housing discrimination claim based on sex discrimination. The court sided with Bouley holding that discrimination against victims of domestic violence is unlawful sex discrimination under the Fair Housing Act.

Domestic Violence, Child Abuse, and Trustworthiness Exceptions After Crawford
Summer 2005
Criminal Justice Magazine, Volume 20, Issue 2
By Myrna Raeder
http://www.abanet.org/crimjust/cjmag/20-2/raeder.html

This article reviews the application of the U.S. Supreme Court's Crawford ruling on admission of out of court statements in domestic violence. The ruling has made it harder to obtain convictions in domestic violence, child abuse, and elder abuse cases where absent victims and witnesses are commonplace. For 25 years, Ohio v. Roberts , 448 U.S. 56 (1980), permitted the admission of trustworthy hearsay of unavailable declarants. This approach increased domestic violence convictions as cases could go forward even when the victim refused to testify. Crawford dismantled the existing Roberts framework for analyzing Confrontation Clause challenges, without providing explicit instructions as to what to substitute in its place. As a result, case law regarding the admission of out of court statements is producing inconsistent results.

Ruling limits prosecutions of people who violate law on privacy of medical records
June 1, 2005
Department of Justice

An authoritative new ruling by the Justice Department sharply limits the government's ability to prosecute people for criminal violations of the Health Insurance Portability and Accountability Act of 1996, the law that protects the privacy of medical records. According to the DOJ, criminal penalties apply to "covered entities," including insurers, doctors, hospitals and other providers - but not necessarily their employees or outsiders who steal personal health data. For example, if a hospital sells a list of patients' names to a firm for marketing purposes, the hospital as a "covered entity" can be held criminally liable. However, if an employee such as a clerk does the same thing, in defiance of hospital policy, the clerk cannot be prosecuted as he or she is not a "covered entity."

Washington appellate court limits testimony of guardian ad litems
June 1, 2004
Washington State Court of Appeals
re Guardianship of Stamm v. Crowley

In the first Washington State case to address the admissibility of guardian ad litem testimony in a guardianship case, the appellate court limited admissibility to testimony that is helpful to the trier of fact. The court held that the guardian ad litem's testimony must not be used as a vehicle to present and reiterate otherwise inadmissible hearsay as "an opinion formed on inadequate or unreliable grounds cannot be helpful." The court further held that a guardian ad litem is not to testify as to his or her assessments of credibility as a guardian ad litem's "subjective assessments of credibility are irrelevant. Questions of credibility and the weight to be given to evidence are matters solely within the province of the fact finder." The ruling is part of a national trend by courts to define the proper role of guardians ad litem.

Priest-abuse settlement sets record, diocese creates $120 million fund to pay victims
June 3, 2005
Covington, Kentucky

The relatively small Roman Catholic diocese of Covington has agreed to create a record-setting $120 million fund to settle a class-action lawsuit over sexual abuse by priests. According to the diocese's most recent public report, it has received 205 allegations against 35 priests, nearly 10 percent of the 364 priests who have ever worked for the diocese. Under the terms of the settlement, which still must be approved by a court, claimants will be divided into four categories based on the nature and severity of the abuse they suffered. Compensation will range from $5,000 to $450,000, minus court-ordered attorneys' fees. The fund created by the Kentucky diocese is the maximum amount it will have to pay. Depending on how many victims come forward, the diocese may spend less than the full $120 million. Any unused money will revert to the diocese.

Virginia employers not liable when abuse happened years before
June 8, 2005
Virginia District Court

Two Virginia Circuit Court judges have ruled that victims of child sexual abuse cannot sue the employers of their abusers when the victims file civil lawsuits years later as adults. The rulings came in two separate Virginia cases and were victories for the Roman Catholic Diocese of Richmond, a defendant in both lawsuits. Richmond Circuit Court Judge Walter W. Stout III and Norfolk Circuit Court Judge Joseph A. Leafe both interpreted Virginia law to mean that delayed suits may only be brought against the actual perpetrator of the abuse, but not corporate entities. The rulings mean that churches, schools, corporations and other institutions cannot be held financially liable for abuse by an employee when a victim seeks damages years later.

Parents face charges for sons' abuse of younger siblings
June 8, 2005
Boise, Idaho

A couple was arrested because their 10- and 12-year-old sons sexually molested three of their younger siblings, starting when one of the children was just one month old. Detectives believe the parents were aware of the abuse, but failed to report it to authorities and tried to handle it themselves by locking the older boys in a bedroom.

Man May Have Molested Thousands
June 16, 2005
San Jose, California

According to San Jose police, a 63 year old convicted child molester -- Dean Arthur Schwartzmiller -- may have committed sex crimes against thousands of victims. During a search of his bedroom in San Jose , police discovered binders full of child pornography images and numerous logs with meticulous records, listing more than 36,000 children's names - mostly boys - and codes that appear to indicate how he abused them. Schwartzmiller was being held without bail on one count of aggravated sexual assault on a child under 14 and six counts of lewd and lascivious conduct on a child under 14, with each count alleging multiple victims. Schwartzmiller has also been arrested on child molestation charges in New York , Idaho , Oregon, California, Arkansas and Washington. Police believe he may have victims in Brazil and Mexico.

Child molester may have thousands of victims
June 19, 2005
Santa Clara, California

Dean Arthur Schwartzmiller, 63, is being held without bail in Santa Clara County Jail on suspicion of molesting two San Jose boys. When he was arrested, police found a detailed log of purported sex acts with young boys. The 35-year record of his sex crimes has more than 36,000 entries. Since 1970, Schwartzmiller has been arrested or convicted of child molestation in Alaska , Idaho , Oregon , New York , California , Arkansas and Washington . Despite his convictions, he was repeatedly freed. He would then violate parole and move to a new state where under an assumed name he would continue molesting children.

Elizabeth Loftus sued by child abuse victim
June 22, 2005
California Supreme Court
Taus v. Loftus

The Supreme Court of California has agreed to hear an appeal from Elizabeth Loftus, Ph.D. Loftus is appealing the appellate court's decision to allow a lawsuit against her to go forward. Loftus, a prominent repressed memory debunker, has been sued by Nicole Taus, who before the case was filed was known as "Jane Doe."

The story of "Jane Doe" began in 1984 when David Corwin, M.D. videotaped his the 6-year-year old girl's abuse disclosure during an evaluation. Taus claimed that her mother had inappropriately touched her during bath-time. The mother lost custody and visitation rights. Eleven years later, Taus contacted Corwin and asked to see the tape as she no longer remembered the abuse and was considering reestablishing a relationship with her mother. Corwin asked to tape her reaction to watching herself as a child. However, suddenly before the tape started playing, Taus suddenly remembered the abuse. After obtaining permission from Taus, Corwin published an article about the case in Child Maltreatment .

Loftus used a private detective to uncover the true identity of Doe in order to debunk her abuse memory. Taus then filed a lawsuit against Loftus and others claiming that personal information about her health and private life were obtained and published without her knowledge and consent and that defamatory remarks were made about her in public settings. In fighting the lawsuit against her, Loftus argued that the case was of such scientific significance that her conduct was justified in order to refute it. The Court of Appeals found that Taus had raised genuine issues and provided evidence that tends to support her claims. The California Supreme Court granted review to determine the following issue: "Did a party's repeated consent to publication of intimate details of her alleged childhood sexual abuse by an advocate on one side of a public debate over "repressed memories" render that party a limited purpose public figure for purposes of determining her rights in an invasion-of-privacy suit?"

Loftus is a member of the False Memory Syndrome Foundation and is also involved with the National Center for Reason and Justice, an organization that advocates for people accused of molesting children. Loftus has had two prior ethics complaints filed against with the American Psychological Association. Loftus resigned from that organization soon after the charges were made and, as a result, the APA decided not to investigate them.

Updates about this case can be found at the following web site: http://www.leadershipcouncil.org/1/lg/taus.html

Military places court-martial on hold after therapist refuses to turn over counseling records
June 24, 2005

A military judge halted a rape trial amid a dispute over an alleged victim's counseling records. Col. David Brash, a judge at Randolph Air Force Base, Texas, stopped the rape trial of 1st Lt. Joseph Harding after a civilian rape counselor refused to give Harding's lawyers the records of her sessions a female cadet who accused Harding of raping her.

Jennifer Bier, a civilian clinical social worker specializing in the treatment of victims of sexual assault, provided counseling for a female Air Force cadet who accused a fellow cadet (Harding) of rape. The accused is now a lieutenant. The defense requested the woman's therapy records and the military judge overseeing the trial requested to view Ms. Bier's confidential therapy notes for possible admission as evidence. Colorado law protects Bier's records in civilian courts, but therapists are expected to comply with subpoenas in the military judicial system. Bier refused to turn over the records, citing the Supreme Court decision Jaffe v. Redmond. Bier argued that the therapist-client relationship is privileged and this confidentiality serves the greater public good.

When establishing the psychotherapist-patient privilege for federal civilian courts in Jaffee v. Redmond, the U.S. Supreme Court held that effective psychotherapy

"depends on an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment."

After she failed to comply with a subpoena for the therapy records, a warrant for Bier's arrest was issued by the military. Bier appealed, and on June 16, the Tenth Circuit Federal Appeals Court denied her appeal. In the end, Bier was not arrested. Instead, the military court granted the defendant's motion to put the impending rape trial on hold until Ms. Bier produces the counseling records.

Police can't be sued for failing to enforce a restraining order
June 27, 2005
U.S. Supreme Court
Town of Castle Rock, Colorado v. Gonzalez

The Supreme Court ruled that police cannot be sued for how they enforce restraining orders. The ruling ended a lawsuit by a Colorado woman who claimed police did not do enough to prevent her estranged husband from killing her three young daughters. In June 1999, in violation of a restraining order, Jessica Gonzalez's husband kidnapped the couple's three daughters. When Gonzalez discovered that her daughters were missing, she called the police, informed them of the order, and asked them to enforce it. Over the next eight hours, Gonzalez contacted the police six times pleading with them to enforce the order. The police took no substantive action until Mr. Gonzalez pulled up in front of the police station and began shooting at the building. Officers returned fire, killing Mr. Gonzalez. They then discovered the bodies of the three daughters--whom he had murdered earlier that evening--in his truck.

Ms. Gonzales argued that she was entitled to sue based on her rights under the 14th Amendment and under Colorado law that says officers shall use every reasonable means to enforce a restraining order. However, in a 7-2 decision the U.S. Supreme Court found that Jessica Gonzalez did not have a procedural due process right to the enforcement of her order.

Psychologists warned on role in detentions
July 5, 2005
American Psychological Association

Responding to reports that some of its members may have advised officials on how to conduct harsh interrogations of detainees, the American Psychological Association has issued a report telling its members of the ethical dangers of such activities. The report by a group convened to study the ethical boundaries for psychologists at places like the detainment center at Guantánamo Bay , Cuba , said the psychologists should not use a detainee's medical information "to the detriment and safety of an individual's well-being." The report said that psychologists may not engage in torture or cruel, inhuman and degrading treatment. It also said that psychologists serving as consultants to interrogations involving national security should be "mindful of factors unique to these roles and contexts that require special ethical consideration."

HIPAA does not protect child porn disclosure
July 8, 2005
U.S. District Court for the Middle District of Tennessee, Nashville Division
U.S. v. Harold Mathis

This is a ruling on a Motion to Suppress child pornography seized from the home of Harold Mathis. The Defendant contends the physical evidence seized from his residence and the statements he made to law enforcement should be suppressed because (1) his 16-year old son lacked authority to admit officers into the residence, and (2) his son's therapist violated HIPAA when she revealed information to law enforcement obtained in the course of providing psychotherapy.

The Defendant's 16-year old son disclosed to his psychotherapist that he saw pornographic images of children on his father's computer at home. Defendant's son had given no indication that Defendant had sexually abused him. The treatment professionals reported the allegations to law enforcement authorities.

The court denied the motion to suppress the evidence obtained from a search of the Defendant's household. First the court held that a minor who has common authority over the premises may give third-party consent to search the premises. Second, the court held that there was no HIPAA violation as the FBI is not a "covered entity." Nor does the information the therapist disclosed to law enforcement fall within HIPAA's definition of protected "health information." Rather, the information pertained to Defendant's conduct in possessing and viewing child pornography. The therapist merely forwarded to law enforcement same information she received from Defendant's son. She did not give him any information about the physical or mental health treatment of Defendant's son, nor did she provide any of his medical or billing records. Finally, the Court held that even if the information Ms. Shadoin revealed had qualified as protected health care information, such information fell within an authorized exception permitting disclosure. HIPAA permits disclosure of protected health information about "an individual whom the covered entity reasonably believes to be a victim of abuse, neglect, or domestic violence to a government authority."

Former professor given probation in child porn case
August 6, 2005
Doylestown, Pennsylvania

Joseph Stenson, a 61 year old chemistry professor at Delaware Valley College , pleaded guilty in March to 490 counts of sexually abusing children - one for each child-porn image on his computer's hard drive. Stenson was arrested after mistakenly sending an incriminating e-mail to colleagues at the school. He was trying to tell a friend in California of his latest child-porn finds, but instead sent the email to the entire faculty and staff. The police were notified and Stenson was arrested. Stenson had no prior criminal record or any history of molesting children. A psychologist testified that Stenson is "emotionally immature" but not a pedophile or a danger to anyone. The court apparently agreed and sentenced him to probation.

New law defined roles of different court-appointed advocates for children
Signed into law August 22, 2005;  Effective January 1, 2006
PA 94-640, Illinois

A new act seeks to clear up confusion about the differing roles of attorney, GAL, and child representative, and expressly authorizes judges to order divorcing spouses into counseling. PA 94-640 amends the Illinois Marriage and Dissolution of Marriage Act. It defines the duties and functions of three different court-appointed advocates with respect to the child: the attorney, the guardian ad litem, and the child representative.

The attorney for the child is to provide independent legal counsel for the child. The statute now clarifies that as such, that attorney owes the same duties of undivided loyalty, confidentiality, and competent representation as any attorney would owe to any adult client. Thus, the attorney for the child must advocate for what the child wants - which may or may not be in the child's best interest.

The other two experts are required to keep the child's best interests foremost regardless of what the child wants. The guardian ad litem's role includes investigating the facts and interviewing the child and the parties. The GAL is then to testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. That report is to be made available to all parties, and the GAL is subject to cross-examination by the parties in court.

The child representative, on the other hand, may not be called as a witness. Rather, he or she is a pure advocate for the child's best interests and, while empowered and directed to meet with the child and the parties and investigate the facts, may not create evidence, render an opinion, or give a recommendation to the court. The child representative must disclose his or her position to the parties in a pretrial memorandum, which the statute cautions is not to be considered evidence. Another part of the child representative's statutory role is to encourage settlement and alternative dispute resolution.

The new law also give judges the authority to order individual counseling for a child, family counseling for one or more of the parties to a child custody proceeding and the child, or parental education for one or more of the parties, when it finds one or more of three conditions are present: (1) both parents or all parties agree to the order; (2) the court finds that the child's physical health is endangered or his or her emotional development is impaired, including where there is a finding of visitation abuse as defined by 750 ILCS 5/607.1; or (3) the court finds that one or both of the parties have violated the joint parenting agreement with regard to conduct affecting or in the presence of the child.

Ethical guidelines for using email to communicate with clients
August, 2005
Full-text: http://kspope.com/ethics/email.php#copy

In an article originally published in the August, 2005 issue of The Ohio Psychologist, Ken Drude, Ph.D. and Michael Lichstein, Ph.D., discuss key ethical and legal issues involved with psychologists' use of e-mail with clients.

One million dollar bond set for mother who refused to turn her children over to their father
Right-click here to download pictures. To help protect your privacy, Outlook prevented automatic download of this picture from the Internet.August 19, 2005

Natalie Gibbons, 48, was arrested on two counts of felony child abduction after she refused to obey a court order to surrender her two children to their father, John Gibbons. The Gibbonses divorced in 2000. Court records show both have been in and out of court since, lodging various civil and criminal charges against each other. Natalie Gibbons lost primary custody of the children in 2003. At a court hearing in July, the Gibbonses' adult daughter, testified that she saw her younger siblings watching televised pornography with their father in his bedroom, but he was asleep. A therapist hired by Natalie Gibbons testified that the children told her their father had shown them pornography on several occasions. Court papers say the therapist also described incidents of "sexualized behavior" by the children. Mecklenburg District Judge Nathaniel Proctor found that the children, who live with John Gibbons, had been exposed to pornography. However, the judge said it wasn't intentional on their father's part. Natalie Gibbons had temporary custody of the children at the time, and Proctor ordered her to send the children back to their father, with whom they normally live. When she refused citing concerns for her children's welfare, she was arrested and bond was set at $1 million. After a public outcry, the bond was reduced.

Court allows orphans to sue University
Iowa Supreme Court
September 30, 2005

The Iowa Supreme Court ruled that the University of Iowa could be sued for its role in a notorious research project, started in 1939, in which orphans were taught to stutter. The experiments were supervised by late Wendell Johnson, who was considered a leader in treating speech disorders. Court records show that in 1939, Johnson believed nonstutterers would become stutterers if others labeled them as such. Twenty-two children at the Iowa Soldiers' Orphans Home in Davenport were separated into two groups for the experiment. Ten subjects in the first group already stuttered; 12 in the second didn't. The second group was split, and six were given negative feedback to see whether they could be induced to stutter. At the conclusion, all six displayed a loss of self-confidence and self-esteem, records state. Some of the orphans developed stutters and others said that they had lifelong damage because of the experiments.

However, the orphans did not know why they had speech or other problems until a 2001 article about the experiments by The San Jose Mercury News . Several of the surviving orphans then sued the University of Iowa for damages. The university argued that it was immune under state law from being sued and that the statute of limitations precluded the suit. The court¹s majority said that the research subjects had the right to sue because they sought legal relief promptly after learning what had happened, and that no Iowa statutes barred the suit. The university has apologized for the experiments, noting that during the time that these experiments occurred, there were no ethical guidelines in place to safeguard human subjects.

Rape charge follows marriage to a 14-Year-Old
August 30, 2005
Nebraska

Matthew Koso, 22, is being charged with the statutory rape of his new wife, Crystal, who is 14. Matthew and Crystal met when she was 8. They became a couple when she was 12 and he was 20. They were wed with their parents' blessing in May, after Cystal became pregnant. They married in Kansas because their own state, Nebraska , prohibits marriages of people under 17. Crystal recently had her baby, and Matthew who is out on bond, continues to live with her.

In Nebraska, as in many other states, intercourse between someone who is 19 and someone younger than 16 is classified as statutory rape. It is illegal here even if the couple is married at the time. However, it is rare for states to prosecute men who marry their victims. In the current case, the prosecutor is contemplating additional charges based on complaints that Mr. Koso had sex with other young girls in the past.

Kansas governor Kathleen Sebelius, embarrassed by her state's status as one of the few allowing children as young as 12 to marry, has said she will propose a raise in the minimum age when the Legislature reconvenes in January.

Pope seeks head-of-state immunity from Texas suit
September 9, 2005
Texas

Joseph Ratzinger, a defendant in a Texas suit filed before he was elected Pope Benedict XVI, wants to be dismissed from the litigation, arguing he now has head-of-state immunity. The allegations against him relate to his actions while serving as head of the Congregation for the Doctrine of the Faith for the church. Ratzinger is accused of having "designed and explicitly directed" a conspiracy to fraudulently conceal tortious conduct in connection with the alleged sexual abuse of three children who were abused by priests.

The plaintiffs allege they were sexually abused in separate incidents in 1996 by Patino-Arango, a native of Colombia who was then a seminarian working at St. Francis de Sales Church in Houston . They allege in the complaint that after the parents of John Doe 1 reported to the archdiocese the alleged abuse on the part of Patino-Arango, he was moved to a "retreat house for abusive priests" in Houston, and later "secretly spirited" out of the country and sent back to Colombia.

he Philadelphia grand jury's report on clergy child sex abuse released
September 22, 2005
Philadelphia

After an investigation lasting more than three years, Philadelphia District Attorney, Lynne Abraham, has released her Office's grand jury report on clergy child sex abuse in the Philadelphia archdiocese. The report details extensive criminal activity within the clergy and calls for an immediate abolition of the statute of limitations for criminal charges in child sexual abuse cases - so that in future cases, victims will be able to get justice whenever they come forward. Here is a website about the grand jury investigation and church cover-up.  http://www.philadelphiadistrictattorney.com/pages/1/

Colorado makes public information on sex offender's treatment
September 28, 2005

For years Colorado Department of Corrections' (DOC) officials have carefully guarded treatment information about sex offenders behind bars holding that it was confidential medical information. As a result, Colorado routinely refused to disclose whether a sex offender is in treatment and how he or she is doing in therapy. However, after inquiries by The Colorado Springs Gazette , the DOC recently reversed its position saying the public's right to learn about its most dangerous prisoners trumps inmates' privacy. The decision was based on the advice of the Colorado Attorney General's Office that the public has the right to learn whether specific sex offenders are receiving therapy and how they're progressing. Statements made by the inmate to therapists, however, remain private.

"Fresh complaint" doctrine changed to "first complaint" doctrine
September 29, 2005
Supreme Judicial Court of Massachusetts
Commonwealth v. King
Full-text: http://www.socialaw.com/slip.htm?cid=15537&sid=120

The defendant, Thomas S. King, appealed his conviction of the forcible rape of his young daughter based, in part, because he contends that the trial judge improperly admitted the testimony of two "fresh complaint" witnesses. Under the fresh complaint doctrine in effect at the time of trial, the Commonwealth was permitted to introduce out-of-court statements seasonably made by the victim after the alleged sexual assault for the purpose of corroborating her own testimony concerning the alleged assault (so-called "fresh complaint" testimony). However, the defendant challenged the admission of the fresh complaint testimony on the ground that the complaints were not promptly made. The child testified that her first complaint (made to her mother on February 18, 2002) was between one day and one week after the alleged sexual assault.

The case led the Court to reconsider the scope of, and continued necessity for, Massachusetts ' present fresh complaint doctrine. The Court responded by substantially revising the doctrine, which in the future shall be called the "first complaint" doctrine. Under the new doctrine the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time. Testimony from additional complaint witnesses is not admissible.

The court went on to discuss why the justice system needs to be mindful of prejudice against victims. The court wrote:

"Though we have located little recent research on juror perceptions of rape complainants, the research and scholarship of which we are aware suggests that damaging stereotypes persist. Some jurors may continue to believe incorrectly that "real" victims will promptly disclose a sexual attack.(19) Some jurors may continue to harbor prejudicial misperceptions about the nature of rape and rape allegations, including: that complainants who wear revealing clothing, consume drugs or alcohol, or have unorthodox or promiscuous lifestyles cannot be "real" victims of rape; that forced sex by a spouse or a past partner does not constitute "real" rape; and that false accusations of sexual assault are more frequent than those of other violent crimes.(20) Juror biases may be particularly strong in child rape cases, as some may attribute allegations of sexual assault to the child's imagination or improper adult influence. And jurors may unfairly perceive child complainants as incredible."

Mind control expert to testify for sex abuser
September 29, 2005
Morris County, New Jersey

An expert in cult mind control will be allowed to testify in the defense of a man accused of sexually abusing his girlfriend¹s daughters over a period of years. William O¹Brien, 62, was arrested in April 2004 after police allegedly found pornography at his home. O¹Brien has also been charged with committing numerous sexual acts with two of his former girlfriend¹s daughters.

Under the law, the prosecution will also have to prove that O¹Brien performed the sexual acts with the children to pleasure himself. O¹Brien has claimed that his girlfriend had control over his actions and forced him to commit the crimes by forcing him to take drugs and threatening to tell his family. The defense asked the court to allow a psychologist to testify as an expert witness for O¹Brien about the affects of cult mind control on human behavior. Superior Court Judge Salem Ahto will allow the expert to educate the jury about mind control.

Respected Child Psychologist Arrested for Possessing Violent Child Porn
September 30, 2005
New York

A respected New York child psychologist has been arrested for possession of violent child pornography. Mies worked at the Building Blocks a preschool in Commack , New York , a suburb of New York City , and saw private child patients at his Hicksville, New York office. Mies is the latest individual to be arrested as part of a massive, ICE child pornography investigation targeting an internet billing company based in Minsk , Belarus and its affiliated entities in the United States . When the international site was broken up two years ago, it had 270,000 subscribers - 4,000 in New Jersey alone. Others arrested include an elementary school teacher, priests, school principals, school coaches, school janitors, camp counselors, campus ministers, pediatricians, circus clowns, Boy Scout leaders, police officers, firefighters, and many others with access to children. Some of these suspects also have been involved in the production and distribution of child pornography.

Deaf patient sues hospital for failing to provide an interpreter
October 2, 2005
Florida

After a visit to the emergency room Cardell and Florence Beaubien sued Bethesda Memorial under the Americans With Disabilities Act for failure to provide them with an interpreter they asked for on several emergency room visits. The hospital agreed to settle the suit by paying the couple an undisclosed amount of money. The hospital also agreed to post signs in the emergency room and admission office alerting deaf people of their right to an interpreter and the responsibility of the hospital to provide it.

Circle of Trust bill passed: California 's "incest exception" abolished
October 5, 2005
SB 33, California

By passing SB 33, the California legislature closed a 1981 loophole in the penal code that has come to be known as "the incest exception." This loophole allowed sex offenders to avoid prison time as long as they only molested children they lived with. So while offenders who molested children outside of their home were given mandatory prison sentences, these penalties could be ignored as long as the perpetrator was an adult living under the same roof as his victim. This exception applied to even the most aggravated of acts. Moreover, to qualify for probation, perpetrators had to enter family therapy which encouraged family reunification. To learn more about the new law, visit the PROTECT website at http://www.protect.org/ .

Victim's rights: Victim cannot be forced to submit to photograph
October 6, 2005
Superior Court of New Jersey, Appellate Division
State v. Gilchrist

Prior to his trial for rape, the defendant filed a motion seeking to compel the victim to submit to the taking of a photograph. He argued that he needed "to have a view of her facial features in some form or fashion to determine if this is somebody who he knows, who he may have had some kind of exchange with in the past." The victim objected to the defendant's motion expressing "overwhelming fear that the giving of a photograph to the defendant would make it easier for the defendant to fulfill his earlier threats to find her and kill her." While acknowledging that he was uncertain why defendant wanted or needed the photograph, the trial judge, nevertheless, granted defendant's motion.

The prosecution appealed and the appellate court held that the victim did not have to submit to the photography. The court noted that the defendant failed to articulate any legitimate basis for obtaining the victim's photograph, and that neither the Sixth Amendment nor the Fourteenth Amendment requires the State to furnish him with her photograph.

The court further noted: "Here, any possible benefits to defendant from a court-ordered photograph of the victim are entirely speculative and are outweighed by other important considerations, including the victim's right to privacy; her right to be treated with fairness, compassion, and respect; her right to be free from intimidation; and the need to encourage crime victims to cooperate and participate in the criminal justice system."

Children's rights to privacy
October 18, 2005
New Hampshire Supreme Court
In the Matter of Kathleen Berg & Eugene Berg
http://www.nh.gov/judiciary/supreme/opinions/2005/berg112.htm

The New Hampshire Supreme Court recently issued a decision concerning children's rights to privacy and confidentiality after their parents divorce. The children lived with the mother and the parents had joint legal custody. The children didn't visit the father as scheduled and the mother sought counseling for the children to help tem deal with their resistance to visitation and their relationship with their father. The father filed a contempt motion regarding visitation, and the mother cross-filed to modify the visitation schedule.

The father requested the therapy records and notes, stating he would find evidence of the mother's interference. The therapists refused, saying disclosure wouldn't be in the best interests of the children. The Guardian ad Litem agreed and moved to seal the records. The trial court denied the motion, ruling that the legal right of a custodial parent to see the records overrides the children's privacy rights, even if this "might objectively be looked upon as harmful to the children." The matter was taken to the NH Supreme Court on interlocutory appeal.

The higher court held that parental rights are not absolute, but are subordinate to the State's "parens patriae power." The court ruled that: "The [trial] court has the authority to determine whether it is in the best interest of a child whose parents are in a parenting dispute to have confidential and privileged therapy records revealed to his/her parents. Parents do not have the exclusive right to assert or waive the therapist-patient privilege."

The court also addressed the confidentiality of therapy records noting that: "The confidential relations and communications between any [licensed mental health practitioner] and such licensee's client are placed on the same basis as those provided by law between attorney and clients.

The Roman Catholic Archdiocese of Hartford agrees to $22 million settlement
October 30, 2005

The Roman Catholic Archdiocese of Hartford agreed to pay $22 million to settle lawsuits filed by 43 people who say they were abused by priests.

Victims' rights: Confidentiality of a rape victim's therapy records
November 4, 2005
Supreme Court of Utah
Utah v. Gonzales

After being convicted of attempted rape and forcible sexual abuse, the defendant appealed arguing, among other things, that his rights were violated when the court quashed a subpoena for the victim's mental health records.

The defendant sent a subpoena to the University of Utah Neuropsychiatric Institute (UNI) for the victim's treatment records. UNI responded with a letter stating that the records were privileged under Utah Rule of Evidence 506 and could only be released if an affidavit attesting that the request for records satisfied an exception to the privilege. The defendant then claimed the victim had "placed [her] mental or physical condition as a claim or defense in a lawsuit" and that the victim's mental and physical condition were "an element of a claim or defense in this lawsuit." UNI responded by sending the victim's treatment records directly to defense counsel. UNI's general counsel subsequently called defense counsel to say that a mistake had been made and that they should have moved to quash the subpoena.

The State sought to quash the subpoenas for the records and to exclude any evidence obtained from them asserting that the documents had been obtained improperly based on the false representation that Jessica had placed her mental or physical condition at issue. The trial court ordered defense counsel to submit the records to the court and the trial court sealed them, conditioning their disclosure on the acquisition of a court order.

At a subsequent hearing, the State argued that defense counsel's access to the records had been gained fraudulently and that, by inspecting them, defense counsel had violated the victim's rights. The trial court ruled that the information obtained from the records could not be used at trial, and noted that defense counsel had created a possibly insurmountable conflict of interest, as "it is impossible to divorce defense counsel's knowledge obtained from the privileged information from his knowledge of the rest of the case." Three days later, defense counsel submitted a motion to withdraw, which the trial court granted and substitute counsel took over.

On appeal, defendant claimed that he was innocent and needed the victim's records in order to impeach her credibility as a witness. He also argued his subpoena was valid and he was not obligated to send notice to either the state or the court before sending the subpoena. The court disagreed noting that a requirement of advance notice is implicit in Utah law. It noted that the Utah legislature has codified its intent "to ensure that all victims .. of crime are treated with dignity, respect, courtesy, and sensitivity, and that the rights .. of victims .. are honored and protected by law." Utah Code Ann. § 77-37-1 (2003). When a victim's confidential records are reviewed before she even knows they are subpoenaed, she cannot choose to protect them. The only way to prevent this is to ensure that the party receives notification that a subpoena has been issued.

Judge rules against repressed memories
November 28, 2005
Douglas County, Nebraska

Douglas County district court Judge Sandra Dougherty ruled that Todd Rivers of Omaha could not present expert testimony that Rivers had repressed memories of abuse. In his lawsuit, Rivers said a priest molested him in the 1980s. Rivers alleges that the Rev. James Kelly of Girls and Boys Town made him drop his pants during confession and re-enact how he would masturbate. Rivers also alleged that Kelly touched his crotch after he pulled up his pants. Rivers said he didn't remember the incident until he "recovered" it in a dream in 2002--nearly 20 years later. Judge Dougherty questioned how anyone could attest to the validity of the account. She wrote: "The fact that there is approximately 20 years between the alleged events and the 'recovered' memories increases the unreliability of the memory."

Evidence: Pornography and sex toys not unfairly prejudicial in incest case
November 30, 2005
Court of Appeals of Arizona, Division 2
State v. Ramsey
http://caselaw.lp.findlaw.com/data2/arizonastatecases/app2/cr20040105_opinion.pdf

After being convicted of continuous sexual abuse of a child, the defendant appealed arguing, among other things, he was denied due process when the court admitted evidence of his use of pornography and sex toys.

Evidence showed that on his daughter's 12th birthday, defendant read her aloud from a binder a portion of a story he had about a father kissing and touching his daughter. That same day, defendant took the victim to an adult store and bought her a vibrator and a bottle of lubricant. Several days later, defendant's wife found the binder, saw that it contained graphic, sexual stories involving incest, and contacted the police.

Two incestuous stories were admitted at trial-along with the vibrator and bottle of lubricant that defendant had given the victim. The defendant claimed this evidence was irrelevant and unfairly prejudicial. Citing his expert's testimony, defendant argued the incest stories were irrelevant because there is no correlation between molestation and possession of pornography. The court disagreed noting that the pornographic material was relevant to the defendant's "intent and motive to have a sexual relationship with the victim." The stories were also properly admitted under Rule 404(c), which allows admission of other act evidence "if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." In addition, the materials were probative of the victim's credibility and supported her testimony that defendant had read one of the stories to her.

Victim's rights: Defendant's standing to assert victim's privilege
November 30, 2005
Court of Appeals of Arizona, Division 2
State v. Miles
http://caselaw.lp.findlaw.com/data2/arizonastatecases/app2/cr20040329_opinion.pdf

After being convicted of aggravated assault with a dangerous instrument and other charges, the defendant appealed arguing he was denied his due process rights when the court violated the victim's doctor/patient privilege by admitting medical records describing the victim's injuries.

The victim received medical treatment in the aftermath of the crime. She declined to testify at trial. The prosecutor offered, as evidence at trial, the medical records and testimony of the victim's treating physician showing she suffered numerous injuries, a dislocated hip and a large loss of blood. The defendant argued on appeal the evidence should not have been admitted because the victim did not waive her doctor/patient privilege. The court disagreed ruling that while the record did not contain evidence the victim had waived her privilege, the defendant who caused the victim's injuries "does not have standing in this criminal case to assert the physician-patient privilege" on the victim's behalf.

False allegations of abuse and neglect when parents separate
Nico Trocméa & Nicholas Bala
Child Abuse & Neglect, Volume 29, Issue 12 December 2005, Pages 1333-1345

The 1998 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS-98) is the first national study to document the rate of intentionally false allegations of abuse and neglect investigated by child welfare services in Canada . A multistage sampling design was used to select a representative sample of 51 child welfare service areas across Canada . Child maltreatment investigations conducted in the selected sites during the months of October-December 1998 were tracked, yielding a final sample of 7,672 child maltreatment investigations reported to child welfare authorities because of suspected child abuse or neglect.

Consistent with other national studies of reported child maltreatment, the data indicated that more than one-third of maltreatment investigations were not substantiated, but only 4% of all cases were considered to be intentionally fabricated. Within the subsample of cases wherein a custody or access dispute has occurred, the rate of intentionally false allegations was higher: 12%. Results of this analysis show that neglect is the most common form of intentionally fabricated maltreatment, while anonymous reporters and noncustodial parents (usually fathers) most frequently make intentionally false reports. Of the intentionally false allegations of maltreatment tracked by the CIS-98, custodial parents (usually mothers) and children were least likely to fabricate reports of abuse or neglect.

Judge admonished after giving rapists probation
December 7, 2005
Kansas Supreme Court

Two men received 60 days in jail, probation and community service after being convicted of raping a 13-year-old intoxicated girl. The sentences were a departure from state sentencing guidelines, which carry a minimum penalty of nearly 13 years for rape unless a judge finds "substantial and compelling reasons" to give a lighter sentence. The Kansas Court of Appeals ruled that it was an abuse of discretion for District Court Judge Paula B. Martin to give the men probation after they were convicted of rape. The court ordered Judge Martin to resentence the men. The defendant appealed to the Kansas Supreme Court asking for a review the appeals court's decision. The Kansas Supreme Court declined to review the case and Judge Martin resentenced the men giving one 65 months and the other 82 months in prison.

Crawford: 'Utterance' by 18 month old child is ruled inadmissible
December 8, 2005
Maryland Supreme Court

Maryland's highest court threw out the conviction of a man in the beating death of his girlfriend's three-year-old daughter, ruling that the trial judge erred by allowing into evidence a statement by an 18-month-old child who did not take the witness stand.

Erik Stoddard, 23, was convicted of second-degree murder and child abuse in March 2003 in the killing a year earlier of Calen Faith Dirubbo. Prosecutors said Stoddard was angry for being unable to potty train the girl over several months. Stoddard had been supervising Calen, her older brother and her cousin, 18-month-old Jasmine Pritchett, on June 15, 2002. Calen was found beaten to death by her mother.

Jasmine was too young to take the stand. However, Jasmine's mother, Jennifer Pritchett, testified that her child's behavior was markedly different after the killing. She told the court the child was scared of strangers and loud noises, had broken out in hives and was having nightmares. She also testified that her daughter had said, "Is Erik going to get me?"

Stoddard appealed his 2003 conviction, which was upheld by the Court of Special Appeals. The court concluded that Jasmine's question was a "non-assertive verbal utterance," and therefore not hearsay. Stoddard than appealed to the Maryland Supreme Court which overturned the conviction as it relied too heavily on the out of court statement of the child.

Statutory Rape: A Study of Rhode Island Superior Court Cases, 1985 to 2002
Brown's Taubman Center for Public Policy
December 8, 2005
Available online at www.brown.edu/PublicPolicy/statutoryrape.pdf

A new study of statutory rape cases in Rhode Island finds significant evidence of leniency in the criminal justice system and makes recommendations for amending statutes, revising sentencing procedures, and increasing public education about sexual assault and statutory rape, especially among teenagers.

Among the study's principal findings:

  • Almost 80 percent of defendants are at least four years older than their victims . The median age was 24, and the average age was almost 30. One-third of defendants were 30 years or older, at least twice the age of their victims.

  • It's not about "young love ." Cases of young defendants (18- and 19-year-olds) often included allegations of physical force and coercion, running contrary to ideas of "young love."

  • Most defendants avoid prison entirely, although statutory rape is punishable by up to 5 years . Only 20% of persons who were originally charged only with statutory rape and then convicted were incarcerated.

  • Older defendants still receive relatively lenient sentences . Although older defendants have a higher incarceration rate and receive longer sentences compared to younger defendants, nonetheless, many older defendants avoid incarceration entirely. When they are incarcerated, those sentenced for statutory rape alone receive about half the maximum sentence on average (29.5 months as opposed to 5 years).

Crawford: Videotape statement of child not testimonial hearsay
November 3, 2005
Colorado Court of Appeals - Division V
Colorado v. Sharp

After being convicted of numerous counts of sexual assault on a child, the defendant appealed arguing, among other things, he was denied a fair trial because the child did not testify and the judge allowed as substitute evidence, a videotaped statement the child made at a Child Advocacy Center .

When the child victim returned from a visit with her father, she reported that her father had touched her inappropriately. The mother called the police and the victim was taken to a children's advocacy center, where she underwent a videotaped interview by a private forensic interviewer and never informed of police involvement. Under Crawford , the use of "testimonial hearsay" is restricted. However, the court held that the tape was not testimonial noting that the determinative factor is whether "an objective person in the child's position would believe her statements would lead to punishment of defendant." 

In the current case, a private forensic interviewer questioned the five-year-old child at a children's advocacy center outside the presence of police and district attorneys. The questions were casual and open-ended, and there is no indication in the record that C was aware of the reason for her interview. Consequently, the court held that the child's videotaped statement to the private forensic interviewer was not testimonial and is not excluded under Crawford.

Catholic priest suing New York, Newark archdioceses
December 13, 2005

A press release announced that Father Robert Hoatson, a Catholic priest, is suing the New York and Newark archdioceses, the Congregation of Christian Brothers and the Albany diocese . Fr. Hoatson claims he was harassed by his employers because he has been an outspoken critic of predatory priests in the church and has been assisting victims of clergy sexual abuse for the last 3 years. He also claims that he was sexually abused as a seminarian.

In the press release, Hoatson's attorney claims that the Vatican and American churches' hypocrisy and fear of homosexuality issues is in part responsible for the atmosphere of clergy sexual abuse: "Because so many in ministry are hiding their own secrets from the Vatican, bishops have been blackmailed into protecting predators and pedophiles in ministry, and to retaliate against good priests such as Fr. Hoatson."

Federal crackdown on child prostitution rings
December 17, 2005

Attorney General Alberto R. Gonzales announced a government crackdown on child prostitution rings across the country. He said that d omestic child prostitution cases have been a federal law enforcement priority since 2003 with the Justice Department's Innocence Lost Initiative. Gonzales stated that 19 people have been arrested among 31 who have been indicted for sexual trafficking in children, taking minors across state lines for prostitution and other crimes. The indictments, in Michigan, New Jersey and Pennsylvania, target the purported operators of four child prostitution rings. Some of the children had been reported missing or had run away because they had been abused at home. "The abhorrent acts alleged in these charges include children being herded around the country as sex slaves . . . and beaten at the hands of pimps and peddlers," he said at a Justice Department news conference.

Judge disregards expert's changed opinion
December 3, 2005
San Bernardino County , California

Ramiro Lopez, 32, was an eighth-grade English teacher at Clement Middle School in Redlands from 1999 to 2002. In June he was convicted on 60 counts of child molestation involving several teenage boys. Redlands psychologist David T. Christensen evaluated Lopez and reported that he was not a danger to the community and his victims. He later sent a letter to the court saying that after reading about the case in a newspaper, he had changed his mind and recommended punishment for Lopez. The psychologist wrote: "I feel the facts associated with Lopez's criminal behavior to be more serious. My opinion of Lopez was based solely on my interview with him."

Superior Court Judge J. Michael Welch ordered a new mental exam and a new psychologist and rescheduled Lopez's sentencing. The judged noted, "He wrote an opinion without having the facts of the case," Welch said. "I should completely disregard his opinion." A psychological report is one of five factors a judge considers before sentencing. The others are reports from the prosecution, defense and Probation Department as well as trial evidence. Deputy District Attorney Victoria Cameron, as well as a sentencing report from the county Probation Department, are recommending the maximum possible sentence of 98 years for Lopez.

13-year-old cannot be held partially responsible for sexual abuse
December 8, 2005
Washington Supreme Court

A 13-year-old girl and her family sued the Royal School District for negligence claiming it failed to properly supervise a 26-year-old teacher who had sex with the girl. Under Washington state law, it is a crime for a teacher or anyone else in a position of power to have sexual relations with anyone under the age of 18. The school district argued that that contributory fault applied because the girl "had a duty to protect herself against sexual abuse but failed to do so." In addition, the district asserted that the girl consented to the sexual relationship.

The Washington Supreme Court disagreed, holding that, "a child under the age of 16 may not have contributory fault assessed against her for her participation in a relationship." The court said that criminal laws protecting children from sexual abuse apply equally in civil cases concerning sexual abuse. The court also dismissed the defendant's assertion that the girl consented to the relationship. "The child, in our view, lacks the capacity to consent to the sexual abuse and is under no duty to protect himself or herself from being abused."

Judge refuses teacher sex plea
December 9, 2005
Florida

A judge has rejected a plea deal in which a former teacher Debra Lafave would have avoided prison time for having sex with a 14-year-old student. The charges against Lafave claim she had sex with the boy in a sport utility vehicle while his 15-year-old cousin drove. Under an agreement reached last month, Lafave, 25, would have been sentenced to three years of house arrest and seven years' probation after pleading guilty to two counts of lewd and lascivious battery. Had she been convicted of the charges at trial, she could have been sentenced to 30 years in prison. Judge Hale Stancil set an April trial date.

Violence Against Women Act passed the Senate
December 16, 2005

Both the House and Senate passed the VAWA as part of the larger Department of Justice Authorization bill.

New trial granted for defendant whose crime inspired "Kendra's Law"
December 20, 2005
New York Court of Appeals
People v Goldstein

New York's Court of Appeals overturned the conviction of Andrew Goldstein in the notorious subway station murder of Kendra Webdale, holding that the mentally ill defendant's right to a fair trial was abridged when a psychiatric expert for the prosecution told the jury of hearsay conversations she had had with witnesses who were not subjected to cross examination. The defense maintained that acute symptoms of Goldstein's previously diagnosed schizophrenia prevented him from knowing that his actions were wrong. In his first trial, the jury deadlocked on the issue of insanity. He was convicted in a second trial based on testimony by forensic psychiatrist Angela Hegarty who testified that Goldstein was not legally insane. She partially based her opinion on the observations and experiences of six people who had interacted with Goldstein. Hegarty was permitted to relay to the jury what those interviewees told her about Goldstein. Upon appeal, the appellate court overturned the conviction holding that Goldstein's right to confrontation had been violated. The ruling was grounded in Crawford v. Washington , 541 US 36, the U.S. Supreme Court's 2004 landmark opinion that generally barred the use of "testimonial" hearsay in criminal cases unless the defendant has an opportunity to question the witness.

Kendra Webdale was pushed under a New York City subway train in January 1999 by Andrew Goldstein, a 30 year old with a lengthy history of mental illness and hospitalizations. Kendra Webdale's murder sparked public and political concern, leading to the enactment of the "assisted outpatient treatment" act, or "Kendra's Law." The legislation, passed in August 1999, authorizes courts to impose outpatient commitment orders compelling treatment and to involuntarily hospitalize psychiatric patients who fail to comply. Prior to the passage of this legislation, patients could be treated against their will only if they had been proven to pose a danger to themselves or others. Under Kendra's law, the refusal to comply with treatment itself can trigger action.

Woman's memory confirmed, sex charges filed 31 years after crime
December 23, 2005
Broward County, Florida

In 1974, a 4-year-old girl told her parents she had been sexually abused in a Pompano Beach home by then 19-year-old Randolph Voth. Nobody believed her. As she grew older, she began to doubt her memories. In 2004, at age 36, she found documents from her parents' divorce, where she read about the abuse allegations she had made. She realized that the abuse actually had happened. The woman contacted the Broward Sheriff's Office. In Florida , there is no statute of limitations for prosecuting someone accused of sexually abusing a child younger than 12. As detectives listened in, she phoned Voth and he admitted to molesting her. Voth was arrested and charged him with sexually assaulting the woman as a child. An investigation showed that Voth was charged in 2003 with sexual assault on a person younger than 12. Police also discovered five other sexual abuse complaints made against Voth through the Department of Children & Families and police. However, in each case, the allegations had been deemed unfounded. The police now believe that numerous children may have been abused by Voth in the years between 1974 and the present.

ACLU files first-ever domestic violence complaint with Inter-American Commission on Human Rights
December 27, 2005

The American Civil Liberties Union filed a petition with the Inter-American Commission on Human Rights (IACHR) on behalf of Jessica Gonzales. The petition, the first of its kind, asserts that domestic violence victims have the right to be protected by the state from the violent acts of their abusers. Gonzales is a Colorado woman whose three children were murdered by her estranged husband after local police refused to enforce her restraining order. She had repeatedly called the police, telling them of her fears for the safety of her daughters. The police failed to respond and several hours later all three children were shot and killed by their father. In June 2005, in Gonzales v. USA , the U.S. Supreme Court ruled against Gonzales when it found that the Constitution does not recognize an entitlement by domestic violence victims to enforcement of their protective orders.

The ACLU petition seeks compensation for the violation of Gonzales' rights, adoption by the United States of necessary measures to deter the commission of similar crimes, and an advisory opinion from the Inter-American Court of Human Rights on the obligations of the United States under international law to protect victims of domestic violence. The Inter-American Commission on Human Rights was created in 1959 and is expressly authorized to examine allegations of human rights violations by members of the Organization of American States, which include the United States .

More information about Jessica Gonzales' Supreme Court case is available online at:
www.aclu.org/scotus/2004/20919res2005021504278/20919res20050215.html

Defense expert's proposed testimony properly excluded in child molestation case
December 28, 2005
Court of Criminal Appeals of Tennessee
Tennessee v. Joseph Vermeal

Joseph Vermeal was convicted attempted aggravated sexual battery on a 7 year old girl and was sentenced to four years incarceration. He had previously been convicted of molesting another young girl. On appeal, the defendant appealed argued, among other things, that the trial court erred in refusing to permit the defense's expert witness to testify. The Court of Criminal Appeals of Tennessee reviewed the evidence and affirmed the judgment of the trial court.

In forming its opinion, the appellate court reviewed the proposed testimony of Dr. William Bernet, a graduate of Harvard Medical School . Dr. Bernet had stated that his testimony would serve to aid the jury in determining the credibility of the statements of the child witnesses and "help them be aware of issues they need to be aware of." The appellate court held that the trial properly excluded the testimony of the prospective expert witness because it was geared toward assessing the credibility of the child witnesses. The court noted that the assessment of witness credibility rests in the province of the jury.

It is not necessary to have explicit verbal or physical rebuff to prove lack of consent
Jan 20, 2006
Appeals Court of Massachusetts, Middlesex County ,
Commonwealth v. Dana Shore

The defendant, a 47 year old pharmacist, was convicted of indecent assault and battery on a 15 year old girl who worked for him at the pharmacy. The defendant appealed arguing that his motion for a required finding of not guilty was improperly denied because evidence of the victim's lack of consent was not proven beyond a reasonable doubt. The defendant claimed that in response to the victim's complaint of a sore back, he began to massage her back. Defendant then unhooked the victim's bra and fondled her breast. The defendant argued there was no evidence of nonconsent because the victim did not tell him to stop and did not pull away or reject him at any time during the removal of her bra or touching of her breast.

The victim testified at trial that she did not say anything because she "stood in shock". The court affirmed his conviction noting that acceptance of a massage for a sore back is not even close to an acceptance to have a breast fondled. Further, it is not required that a victim verbally or physically rebuff her assailant to prove that she did not consent. The lower court also noted the great disparity in age, sophistication, and authority, between the defendant and the victim.

Court upholds psychiatrist's award in suit against Delaware state hospital
February 15, 2006
United States Court of Appeals for the Third Circuit
David T. Springer, M.D., v. Renata J. Henry
The ruling is posted at www.aapsonline.org/judicial/044124p.pdf

The 3rd Circuit Court of Appeals in Philadelphia upheld a lower court's award of nearly $1 million to Delaware psychiatrist David Springer, M.D., on, for the Delaware Psychiatric Center 's violation of his First Amendment rights. Springer, an independent contractor, was the head of the medical staff and director of residency training at the state's only public psychiatric hospital, The state declined to reinstate his contract after he wrote memos that cited numerous problems at the facility, including serious staffing shortages and demeaning treatment of patients. Dr. Springer's sued Renata Henry, director of the state's Division of Alcoholism, Drug Abuse, and Mental Health.

The appeals court held that a physician's critique of patient safety and unsafe working conditions constitute matters of public concern, and that "the First Amendment's protection of an employee's right to speak on matters of public concern extends to independent contractors." The jury award includes $285,464 for lost earnings, $588,431 for lost future earnings, and $100,000 for injury to his reputation.

Child molester gets mandatory life term under new federal sex offender law
February 19, 2006
Maryland

A convicted child molester appearing in a Baltimore courtroom became the first person in the country to receive a mandatory life prison sentence under a new federal sex offender law. James A. Reigle, 46, of Harrisburg , Pa. , was convicted for sexually exploiting boys into posing for photos and then posting the illicit images online.

FBI retains access to medical records under the newly reauthorized Patriot Act
March 9, 2006

President Bush signed the renewed USA Patriot Act into law. One of the renewed provisions is Section 215, which allows the FBI to conduct secret searches of private records, including medical records. Under Section 215, professionals are required to hand over patients' medical records when requested by the FBI as part of a counterterrorism or counterintelligence investigation. In addition, the section also prohibits the provider from telling patients their records have been disclosed. The American Medical Association and other physician groups opposed the "gag order" noting that privacy and confidentiality to be the bedrock of the patient-physician relationship.

The reauthorized Patriot Act retains the gag order in the original law, but adds safeguards, such as allowing physicians to consult an attorney when ordered by the FBI to produce records. Under the original statute, doctors and others subpoenaed for records were not allowed to disclose that fact to anyone, including a lawyer. The measure prevents the FBI from demanding the names of lawyers consulted by people ordered to hand over documents. The reauthorized Act has also increased the requirements the FBI must meet before agents can obtain a court order to search private records. The FBI's director or deputy director must approve, in writing, any request to search private records. The bureau also must submit to the court a "statement of facts" that establishes reasonable grounds to believe the records sought are relevant to a counterterrorism investigation.

Effort to grant immunity to court appointed attorneys for children defeated
March 29, 2006
Maryland

Maryland lawmakers have abandoned a plan to grant malpractice immunity to court-appointed lawyers for children in custody disputes. A Court of Appeals ruling in January found such lawyers were not a special class and could be sued like any other attorney for malpractice. The ruling also threw into question the ability of Maryland courts to assign "guardians ad litem" or "best-interest attorneys" for children in high-conflict custody cases, many of which involve abuse allegations. Family law attorneys pushed for complete immunity citing concerns that the high court ruling will place them at risk for being sued because their findings almost always make one parent unhappy. Opponents of the bill felt the bill would increase careless, negligent and incompetent representation of children.

Maine law shields animals in domestic violence cases"
March 31, 2006

Maine 's governor, John Baldacci, signed into law a bill that allows animals to be included in protection orders in domestic violence cases. Although professionals have become increasingly aware of a link between domestic violence and animal abuse, Maine appears to be the first state with a law that provides animals with protection. The legislation was sparked by instances in which batterers had controlled their spouses through treats and terrorizing tactics with their partner's pets. Proponents of the bill are seeking to remove another avenue that abusers use to exert power and control over their victims."

Supreme Court bars defense questioning of minor in rape case
April 13, 2006
Arkansas Supreme Court

The Arkansas Supreme Court ruled that a man accused of raping a 6-year-old cannot question the girl in court about her sexual assault by another man when she was 4. The ruling reversed a decision by Benton County Circuit Judge Tom Keith. In a pre-trial hearing, Denver Townsend, 63, argued that the child could be making allegations against him based on her recollection of the previous attack. Judge Keith ruled that lawyers for Townsend could question the girl about the earlier attack. However, in a unanimous decision, the Supreme Court concluded the testimony would be irrelevant noting that the Rape Shield Law bars testimony of a rape victim's prior sexual conduct unless there is clear relevance to the case being tried. The court added "there is substantial risk of further emotional stress and prejudice to the minor victim, whose life has already been unusually traumatic." According to the higher court, if the trial court determines that evidence of prior sexual incidents involving a minor is admissible, the information should be elicited from a source other than the child, such as testimony by police officers.

Mother arrested for allowing convicted sex offender to be around her son
April 13, 2006
Newark, New Jersey

Police charged the mother of a 9-year-old boy with two counts of endangering the welfare of a child for allowing convicted sex offender Oliver H. Marsh, 25, to be around her son. Marsh was convicted of molesting the boy and his sister in 2003 and recently was released from prison after serving time on those charges. Marsh was charged with attempted first-degree rape, endangering the welfare of a child, unlawful sexual contact and unlawful imprisonment. The mother had allowed him back in her house and access to the children.

New York appeals court loosens scientific requirements for expert testimony
April 24, 2006
Appellate Division of the New York Supreme Court
Zito v. Zabarsky

In a unanimous opinion, the New York Appellate Court ruled that medical experts do not need to show peer-reviewed medical literature to prove that their medical opinion is accepted in the scientific community. New York courts follow the Frye standard which holds that novel scientific evidence presented in court must "have gained general acceptance" in the relevant scientific community. Prior New York case law has held peer-reviewed medical literature as a sign of general acceptance and has consistently warned against using the legal system to test new scientific debates such as with pharmaceuticals.

The case stems from a November 2003 trial court hearing to screen expert witness testimony. Pamela Zito sued internist Gary Zabarsky, MD, alleging that he had prescribed her an "excessive" dose of the cholesterol drug Zocor which caused her to develop an autoimmune disease. After placing her on the maximum recommended dosage, Zito developed polymyositis. Zito's experts, a pharmacologist and an internist, noted that Zito developed myopathy, a well-known side effect of the drug which could have triggered the release of an antibody associated with polymyositis. Although they conceded that there were no studies that linked polymyositis to the Zocor therapy, they presented a single report in a May 1997 article from the medical journal The Lancet of a patient who had developed polymyositis after taking a generic form of Zocor.

The trial court dismissed the case, finding that the experts did not include any peer-reviewed medical literature to support the theory. The appellate court ruled that in dismissing the case the lower court applied the testimony rule "too restrictively." The higher court also expressed concern that under a strict interpretation of the standard, "first users of a new drug" would not be able to sue if they were injured.

Virginia strengths its sexual predator laws
April 24, 2006
Virginia

Virginia Gov. Timothy M. Kaine on Monday signed a number of bills passed by the General Assembly that will increase the punishment and monitoring of sex offenders. The new laws, which will take effect July 1, will increase the mandatory sentences for those found guilty of sex crimes against children younger than 13. For both first-time and repeat sex offenders, the mandatory minimum sentence was increased from 5 years in prison to 25 years. The legislation also broadens the State's powers to monitor the most violent sex offenders through civil commitment.

Activists seeks to open family court system to public scrutiny
May 10, 2006
Delaware

More than a dozen men, women and one young boy spoke at a special forum on problems in the state's Family Court system. The forum was sponsored by Common Cause of Delaware. Although, family court rules require that all hearings or trials be recorded, the speakers told how faulty record-keeping and inaccurate transcripts in Delaware 's secretive Family Court system have resulted in broken families, bankruptcies and a loss of their rights to appeal decisions to the state Supreme Court.

Probation for short sex offender sparks debate
May 23, 2006
Cheyenne County District Court
Nebraska

Cheyenne County District Judge Kristine Cecava Judge ruled that prison would be a danger for 5-foot-1 man convicted of molesting a child. She told Richard W. Thompson that his crimes deserved a long prison sentence but that he was too small to survive in a state prison. Though he could have been sentenced to 10 years behind bars, Thompson was placed on 10 years of probation. The state's attorney general, Jon Bruning, who believes the sentence is far too lenient, plans to appeal the ruling.

New Article: Myths that Place Children at Risk During Custody Disputes
By Stephanie Dallam & Joanna L. Silberg
January/February 2006
Sexual Assault Report (Vol. 9, #3)

Available online: http://www.leadershipcouncil.org/1/res/cust_myths.html

According to the article, too often custody decisions are based on myth, misinterpretation of facts, and evaluator bias. The article provides empirical evidence that refutes six erroneous beliefs that contribute to the problem of children not being protected from abuse in family court.

  1. Allegations of sexual abuse are common during custody disputes and the vast majority of allegations are false, unfounded or unsubstantiated.
  2. A history of battering has nothing to do with child abuse.
  3. Custody transfers to abusive parents are rare.
  4. Fit mothers do not lose custody.
  5. Parental alienation syndrome is a common, well-documented phenomenon.
  6. Children are more likely to be abused in the care of a woman than a man.

New Article: "The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy"
By Jennifer Hoult
2006
Children's Legal Rights Journal

Abstract: Since 1985, in jurisdictions all over the United States , fathers have been awarded sole custody of their children based on claims that mothers alienated these children due to a pathological medical syndrome called Parental Alienation Syndrome ("PAS").  Given that some such cases have involved stark outcomes, including murder and suicide, PAS' admissibility in U.S. courts deserves scrutiny.

This article presents the first comprehensive analysis of the science, law, and policy issues involved in PAS' evidentiary admissibility.  As a novel scientific theory, PAS' admissibility is governed by a variety of evidentiary gatekeeping standards that seek to protect legal fora from the influence of pseudo-science.  This article analyzes every precedent-bearing decision and law review article referencing PAS in the past twenty years, finding that precedent holds PAS inadmissible and the majority of legal scholarship views it negatively.  The article further analyzes PAS' admissibility under the standards defined in Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Kumho Tire Company v. Carmichael , and Rules 702 and 704(b) of the Federal Rules of Evidence, including analysis of PAS' scientific validity and reliability; concluding that PAS remains an ipse dixit and inadmissible under these standards.  The article also analyzes the writings of PAS' originator, child psychiatrist Richard Gardner - including twenty-three peer-reviewed articles and fifty legal decisions he cited in support of his claim that PAS is scientifically valid and legally admissible - finding that these materials support neither PAS' existence, nor its legal admissibility.  Finally, the article examines the policy issues raised by PAS' admissibility through an analysis of PAS' roots in Gardner 's theory of human sexuality, a theory that views adult-child sexual contact as benign and beneficial to the reproduction of the species.

The article concludes that science, law, and policy all support PAS' present and future inadmissibility.  

New Article: "Legal Concerns for Psychiatrists Who Maintain Web Sites"
by Patricia R. Recupero, J.D., M.D.
April 2006
Psychiatric Services (vol. 57, #4)

Reprints: Patricia_Recupero@Brown.EDU

Abstract: Courts recognize three types of Web sites: passive, which provide basic information; business, on which business is conducted; and intermediate, which are somewhat interactive but conduct no business. Inviting contact from site visitors may lead to inadvertent doctor-patient relationships, with ensuing legal duties. Statements made may be considered explicit warranties, which are subject to lawsuits when not fulfilled. Providing services to out-of-state clients may amount to practicing without a license. The author reviews Federation of State Medical Boards guidelines for appropriate use of the Internet in medical practice and offers ethical principles to help guide decisions about structure and content of passive sites."

New Article: "Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data."
June 2006
By American Psychological Association's Committee on Legal Issues
Professional Psychology: Research and Practice (vol. 37, #2)

This article identifies legal issues that may arise when private practitioners are faced with subpoenas or compelled court testimony for client records or test data and suggests strategies that might be considered in the event such a subpoena or demand is received.

According to the article, although a psychologist must respond to a subpoena, a subpoena alone is generally not sufficient to warrant a disclosure of confidential information. In order to disclose confidential information, a psychologist must first ensure that, in addition to having a valid subpoena, the conditions for disclosing confidential information, such as the client's consent or a judge's order or other legal mandate, are met. Once a court order for testimony or documents is issued and any attempt (made in a timely manner) to have the court vacate or modify its order has been unsuccessful, a psychologist may be held in contempt of court if he or she fails to comply.

 

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