Prosecution and Child Sexual Abuse

Ralph Underwager and Hollida Wakefield*

ABSTRACT: The prosecution system's treatment of child sexual abuse is examined in terms of the role and behavior of lawyers.  The history of how lawyers emerged in Western civilization is discussed in terms of the development of targeted prosecutions.  Prosecutors are aggressively promoting the prosecution and conviction of suspected child abusers, with the result that increasing numbers of people are becoming convinced that the system is unjust and oppressive.

In America lawyers are ubiquitous.  Lawyers are star characters in plays, movies, novels, and TV series.  They are in boardrooms, committee chambers, courtrooms, neighborhood associations, protest groups, church conventions, and volunteer organizations.  Applications for admission to law school are zooming upward.  America has over twice as many lawyers per 100,000 people as any other nation and twice as many prosecutors (Economist, 1987).  Most of America's legislators are lawyers.  There is little that goes on in America that is not influenced by lawyers, their legal advice and opinions, competence or incompetence, integrity or venality, and relative wisdom or stupidity.  America proudly asserts it is a nation of laws, not personalities, but the fact is laws are made, interpreted, applied, and enforced by lawyers.  Lawyers are human beings with distinct personalities.  America may actually be a nation of lawyers, not of laws.

In order to understand the way we now deal with accusations of child sexual abuse, the role and behaviors of lawyers are crucial.  Child abuse and specifically, child sexual abuse, has become a targeted prosecution.  The American Prosecutors Research Institute (APRI), a nonprofit subsidiary of the National District Attorneys Association, sponsored a symposium on child abuse in May of 1985.  From that meeting came the concept of a national center.  By November of 1985, six months later, the Department of Justice's Office of Juvenile Justice and Delinquency Prevention granted funds for APRI to set up the National Center for the Prosecution of Child Abuse (APRI, 1987).

There have never been any other National Centers for the targeted prosecution of any other crime.  There are other targeted prosecutions (Finn, 1988), but only child abuse has elicited the response of funding a National Center to build, organize, lead, and support a nationwide unitary and aggressive drive to prosecute child abusers.  The mere existence of the National Center for the Prosecution of Child Abuse indicates that a targeted prosecution effort is directed against suspected child abusers.  This should alert us to be cautious about the problems sure to come whenever there is a targeted prosecution effort.

To go from conceptualization to funding in six months is incredible speed for any federal bureaucracy.  The idea clearly fit a need that was judged important by people with enough power to get the job done expeditiously.  This development has meant that lawyers have become the most crucial and powerful figures in America in determining the way child abuse accusations are handled.  Therefore, to grasp what is going on in America about child abuse the place to start is with lawyers.

Our experience with a variety of persons, professional and lay, from Canada, England, Australia, New Zealand, and Holland shows that America is exporting the attitudes, system, dogmas, and procedures that have emerged here to respond to child abuse.  George Nagel, Australia's Sixty Minutes reporter, said Australia is about five years behind the U.S. in the progression of developing the same attitudes and system we have here (Nagel, 1986).  A reporter from Toronto said Canada was about four years behind the U.S. (Jones, 1985).  A Labor party member of the English Parliament said the system developing in his country was modeled after the U.S. (Bell, 1987).  A psychiatrist from Holland came to America to spend a day with us because he wanted to understand what was going to happen in his country.  The likely future for other countries in responding to sexual abuse of children is present in what is being done here.  For good or ill, citizens in other lands can improve or correct what their nation does to nurture children's growth by learning from America.  Therefore, knowledge of what lawyers are doing in America about child sexual abuse is crucial for other countries to learn from us and build on strengths and avoid errors.

History and Perception of Lawyers

An old saying has it "The Devil makes his Christmas pie of lawyers' tongues."  This reflects a longstanding public perception that may be related to how lawyers emerged in Western civilization.  People got along without lawyers for several thousand years.  When there was a conflict, people pled their own cause before the king, a noble, or other fact finder.  An example is the custody dispute between two women before King Solomon (I Kings 3:16-28) where each woman presents her case for claiming the child and Solomon decides.  About the fifth century B. C., as appears to happen occasionally throughout history, independent but approximately simultaneous developments took place in Greece and Israel that resulted in the emergence of lawyers and lawyering in the western world.

In Greece learned men introduced a new subject called oratory that trained young men in logic and the art of persuasion. At first the rhetores, the professors of oratory, taught Athenian politicians how to make dramatic and effective speeches, about the way TV media experts coach political candidates today.  Soon they were coaching people in the courts.  Aristophanes' play, The Clouds, pictures their activities.  The hero, a somewhat inept con artist deeply in debt, signs up with a rhetor to learn how to cheat his creditors.  He learns how to be a "lawbook on legs, who can snoop like a beagle, a double-faced, lethal-tongued legal eagle" (Casson, 1987, p.123).  In another play satirizing Athens' court system Aristophanes has an experienced juryman say:

There isn't a form of flattery they don't pour into a jury's ear.  And some try pleading poverty and giving me hard luck stories. ... Some crack jokes to get me to laugh and forget I have it in for them.  And, if I prove immune to all these, they'll right away drag up their babes by the hand. (Casson, 1987, p.123).

A contemporary jury member could use the same description for what goes on today in front of juries.  The courtroom drama has not changed plot, tactics, or characters in over 2000 years.  The remarkable correspondence between these early examples of lawyering and today's practice of law suggests that the structure of law applied to disputes between people may impose powerful roles upon all participants that determine most of the behavior that actually goes on in the courtroom.  If, indeed, the roles of the practice of law are so powerful as to produce a common pattern enduring across several thousand years, we ought to know more about those roles and their effect than we do.

By the fourth century B. C. a specialty developed, logographoi who not only coached litigants but wrote and delivered the speeches.  The basic services delivered by lawyers today were provided by the logographoi who advised on the issues in the case, what court to use, suggested tactics, and delivered the arguments on behalf of their clients.

When Rome took over the civilized world the development continued.  First came the advocati who advised, assisted, and spoke in court.  By the end of the second century B. C. a professional lawyer class, causidici (speakers of cases), was in place.  What made stars, the Marvin Belli's, among Roman lawyers was oratory, the ability to spellbind judge and jury.  It mattered not what the merits were but only that the case was won.  Cicero described it this way.  "We are brought in not to say what we stand by in our own opinions, but what is called for by the circumstances and the case itself."  Tacitus, the historian, wrote "The most saleable item in the public market is lawyers' crookedness."  A satirist said "What does a man need to be a lawyer?  Cheating, lying, brass, shouting, and shoving." (Casson, 1987, p. 128).

Then, as now, the public perception of lawyers included an awareness of the potential for chicanery, double dealing, and an unbridled cynicism among lawyers.  In second century B. C. Rome, terms like shyster and ambulance chaser were as familiar as they are now.  Contemporary distrust and anxiety about lawyers is foreshadowed by identical public attitudes at the time the profession of lawyering first took shape.  This suggests it may be the nature of the profession itself that elicits this persistent perception.

In the fifth century B. C. the Jews who had been in captivity in Babylon returned to the Promised Land.  The temple was rebuilt from 420-415 B. C.  From the post-exilic period onward Jewish history was essentially centered on their religion.  After the return from Babylon the object of Jewish life was to preserve their unique religious individuality at all costs while surrounded by powerful and dominant pagan cultures.  The Torah (the written Law) and minhag (tradition) became the roots of Jewish life and the source of their differences from the pagans.  Scholars subjected the Torah to searching legal analysis to define its precepts more rigidly and extend their application to every facet of Jewish life.  Massive analysis was given to words, phrases, precedents, and the logic of inferences from them to details of living.  These efforts resulted in the Halachah, a mainly legislative body of tradition, that became the religious foundation of Pharasaism (Guignebert, 1939).

A strong commitment to individual responsibility and a profound moral earnestness resulted from the zeal for the study of the Law.  This included an intense practical concern for living a good life.  It produced heroic devotion to the Law as shown by the loyal Jews who stood firm before Antiochus (Bright, undated).  An example of Halachah is the laws of clean and unclean.  A baker would know that if a cock hopped into his oven it would not defile the oven, even if it died there, because it was a clean bird.  However, if it had just gobbled an unclean insect, the oven was defiled and needed purification.  The body of the cock is not a tightly closed vessel capable of containing the contamination (Stewart, 1961).

The scholars who carried out this work, sopherim (Scribes), were given great respect and high status. They were the jurists, canonists, moralists, and casuists of Jewish life.  They were exalted and delighted by their complex minutiae exegized from the Torah.  Every word of the Torah was a visible sign of God's love for His chosen people.  Fulfilling any one of the prescriptions was an act of gratefulness to God who had deigned to give this divine revealed Law to Israel (Guignebert, 1939).  The Scribes became the lawyers of middle class Judaism, the Pharisees (Blinzler, 1959).  They were involved in making the laws and the interpretation, application, and enforcement of the laws.

By New Testament times the phrase "Scribes and Pharisees" was emblematic for the established order and the bureaucracy that dominated Jewish life.  The New Testament term grammateus (Scribe) refers to these lawyers with whom Jesus and his disciples had frequent conflict.  The nature of the conflict with the Scribes is expressed in Matt. 5:20 - 48.  The charges Jesus made against the Scribes throughout his public discourses included a lack of humility, selflessness, and sincerity.  The most serious charge was that they did not practice the punctilious morality they imposed upon others.  Further, the accusation was that their attention to minutely detailed behaviors, rigidly proscribed and demanded, defeated the true will of God for His People (Kittel, 1964).

These two distinct historical developments of a profession developing and practicing law have coalesced in Western civilization to produce the contemporary system of law and lawyering.  From Greece and Rome comes the relatively amoral, goal-oriented, the end-justifies-the-means approach that the public still observes; from this comes the instinctive distrust of lawyers.  From Israel comes the high moralistic value of law as revealed, noble, superseding individual rights and judgments, pointing the way to a good life, and imposing demands for conformity and compliance.  From this tradition comes the exquisite attention to words and their meaning and the often labored and convoluted efforts to demonstrate precedents, technical analysis, and case law.  Lawyers' briefs and judicial rulings most clearly reflect the approach and practice of the Jewish scribes while courtroom practice may reflect more the Greek and Roman tradition.

The view of lawyers derived from the tradition of Jewish scribes includes the perception of the practitioner of the law as a highly moral, virtuous person justified by nobility of purpose.  Wisdom is accorded to the practitioner of law and increases the public stature of the profession.  Occupying this place in public regard is a powerful position.  This is the heroic picture contemporary Americans like to believe in but also fear may result in injustice if the power accorded is used capriciously, for personal interests, and unwisely.

If these two historical strains combine in a legal system the result can be an almost schizophrenic ambivalence with lawyers and lawyering held both in high regard and in high disdain and fear by the public.  The combination of opportunistic pragmatism and moralistic certainty may produce actions believed necessary and just but which are in fact unjust.  This is the risk in all targeted prosecutions.  The American public's anxiety and counter-aggressive response to high crime rates creates a climate within which targeted prosecutions are not only acceptable but desired.

The trial of Jesus before the Sanhedrin is an early historical illustration of a targeted prosecution.  The trial and the outcome were based upon the previous decision by the council in an earlier meeting that it was necessary to stop Jesus " ... it is expedient for us that, that one man should die for the people, and that the whole nation perish not" (John 11:50) (Blinzler, 1959; Schilder, 1939).

The principle that extraordinary circumstances at any given time justify extraordinary measures has a familiar ring in contemporary American life.  The safety of the nation requires that laws be broken and morality bent into shape.  Individuals may be treated unjustly because national security interests are at stake or personal convictions about truth are absolute.  The behavior justified by this reasoning ranges from the incarceration of Japanese Americans during WW II, secret administration of mind altering drugs to individuals, experimental denial of treatment for gonorrhea to southern Black males, harassment by Ivy league students of Jensen, Shockley, and Dean Rusk, assassination of innocent people in bombings, and breaking laws by Colonel North.

The Role of the Prosecutor

The role of the prosecutor in the criminal justice system is central.  The prosecutor is not a member of the legislative or judicial branches but nevertheless has great lawmaking and judicatory power.  A prosecutor operates independently and autonomously.  A prosecutor is usually accountable only to the public which can exercise some minimal control only through public opinion and, where a prosecutor is elected, through the ballot box.  The public prosecutor has great latitude, discretion, and power and can make on his own a broad range of decisions.

The role of the prosecutor imposes an incredible intellectual, emotional, and philosophical burden upon holders of the office (Bailey, 1986).  More than any other official of government the prosecutor is bound to serve two masters justice and society.  Justice is an abstract concept which, in spite of centuries of philosophical and legal theorizing, remains an elusive, ill-defined, and poorly understood ideal.  Society is, on the other hand, an ever-present and ever-shifting power that pulls and pushes the prosecutor to conformity and furtherance of whatever the present public opinion may be.  Only courage of the highest order empowers a prosecutor to resist any public pressure for injustice in the interest of preservation of the ideal of justice.  The U.S. Supreme Court described the dynamic tension the prosecutor must endure in this way:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.  He may prosecute with earnestness and vigor indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one [Berger v. U.S. 78,88(1935)].

To discriminate between hard, fair blows and foul blows in the intense, demanding daily pressures of the prosecutor's office is not an easy nor simple job.  The prosecutor must deal continuously with the dark side of our humanity, the evil and weakness that is inherent in all of us.  Day after day mucking about in the underside of life may have an insidious effect and cynicism may gradually replace the passion for justice.

Many prosecutors show persistent courage and dedication to the ideal of justice.  They exercise their great powers responsibly, compassionately, and fairly.  A decision by a prosecutor to enter a nolle prosse on the eve of the trial in a sexual abuse case shows commitment to justice.  The rationale for the choice is contained in a letter to the defense attorney.

... As you should know, it is the obligation of a prosecutor to seek justice, not merely to convict.  When I conducted my initial investigation in this case, I spoke to the victim who is a very bright child.  She was able to be qualified to testify and was articulate and forceful in describing the sexual abuse.  At that time no one other than the Defendant had contradicted her statement. ... However, since my original investigation it has become apparent that attempts have been made by family members and other persons involved to influence the victim's testimony, and as a result her credibility is now in question and the probability of successful prosecution is unlikely.  Because of my ethics and responsibilities as a prosecutor... I feel it is necessary to enter a nolle prosse in this case .. (Campbell, 1988)

A prosecutor with the convictions and courage to make what has to be an unpopular decision and not prosecute a sexual abuse charge fulfills the dual role of serving justice and society.  This is a successful trip across the tightrope.  Mr. James Peters, Senior Attorney at the National Center for the Prosecution of Child Abuse, who consults, advises, and instructs district attorneys throughout the country on prosecuting child abuse cases, states:

... When I was a public defender, my boss observed that one good prosecutor had more power to prevent injustice than ten public defenders.  From my experience with prosecutors across the country l believe most of them share that attitude and do their best to fulfill their ethical obligations. ... Unlike our colleagues on the other side of the bar, prosecutors have an ethical obligation to believe that everyone we prosecute is guilty and we can prove it beyond reasonable doubt before we proceed with a case.  In that sense, one could argue that we are the true "public defenders" in the criminal justice system. ... (Peters, 1988).

Whether Mr. Peters is correct in his belief that most prosecutors are ethical and pursue justice is an empirical question that could be answered by data gathering.  We know that some are and, indeed, it may be a majority, but nobody really knows.

What we do know is that if a prosecutor conducts himself and/or his office arbitrarily, abusively, and unfairly there is no way to restrain or deter misconduct.  The power to charge, plea bargain, coerce and conceal evidence, and grant immunity is uncontrolled.  Much of the prosecutor's work is unsupervised leaving great room for unknown mischief and malice.  This means that the frequency of prosecutorial misconduct is likely larger than indicated by those cases that are known and publicized.  The practicing criminal lawyer knows that after ABSCAM, Watergate, Irangate, and other indictments many American prosecutors view their role as noble white knights slaying the dragons of corruption rather than guardians of the rights of both innocent and guilty (Lawless, 1985).

There is no systematic or consistent attempt to deal with the problem of prosecutors who strike "foul blows," cheat, lie, break the law, prejudice an individual's rights, seek personal advantage or satisfaction of prejudice and bias, or pursue their own ambitions.  Law review articles, popular media, judicial rulings, and criminal appeals frequently identify cases of prosecutorial misconduct, discuss them, lament them, and analyze them.  However, the problem is that nothing happens.

In Jordan, Minnesota, Prosecutor Kathleen Morris charged 25 adults with child sexual abuse of forty children, alleging all manner of strange and bizarre abuse.  In a spectacular series of events, after an acquittal of the first two defendants, Prosecutor Morris dropped all charges against the other defendants.  Minnesota's Attorney General Humphrey, the FBI, and the state BCI investigated and concluded there was no way ever to tell what happened (Humphrey, 1985).  The next event was a special commission appointed by Governor Perpich to investigate the conduct of the prosecutor.  After several months the special commission reported that Prosecutor Morris was guilty of malfeasance in office.  However, she was not removed from office because the first two defendants were found not guilty and charges against the others were dropped.  Therefore they were not damaged (although their nerves, lives, careers, families, and finances were destroyed).  In the meantime fourteen civil lawsuits were filed by former defendants against the prosecutor, county, human services, various other officials, and therapists who had interrogated children.  Next Morris was not reelected by the citizens of Scott County.

On Tuesday, February 3, 1987, the federal appeals court gave immunity to Morris and other officials (Oberdorfer, 1987).  The lawsuits brought by persons the state admittedly grievously wronged and severely damaged were effectively blocked and ended.  The appeals court made this specific finding.  It said that it is essential that prosecutors be able to proceed in their jobs without fearing lawsuits from the people they charge.  The court said prosecutors should be immune from lawsuits over their official conduct, no matter how reprehensible the allegations against them.  Although one judge said he had "misgivings with the manner in which the child abuse cases were handled by Scott County ..." and termed it "this shocking and abusive affair," he concurred with the opinion prosecutors are immune no matter what they do (Oberdorfer, 1987).

Appellate courts have virtually given prosecutors a blank check to use any tactic that wins.  A principle method for overlooking prosecutorial misconduct is the "harmless error" doctrine (Lawless, 1985).  This doctrine permits appellate courts to uphold a conviction despite serious prosecutorial misconduct during a trial (Gershman, 1986).  It is a significant factor in the increased frequency of prosecutorial misconduct.  The most important factor, however, in maintaining a growth curve in trial misconduct is simply that it works.  Evidence and experience shows that prosecutor dirty tricks in the courtroom have the effect of getting the jury favorably inclined to the prosecutor (Calder, 1974; Pyszczynski, 1981; Sue, Smith, & Caldwell, 1973; Thompson, 1981).  Misconduct wins cases.  This reality is what keeps it going.

There is little or no cost to the prosecutor who betrays or surrenders the ideal of justice.  There are only a few judicial or constitutional sanctions available and they are used sparingly if at all.  Even when sanctions are imposed they are ineffective in controlling misconduct.

Misconduct is commonly met with judicial passivity and bar association hypocrisy.  The judicial and professional default is not easily explained.  Perhaps the prosecutor's standing, prestige, political power, and close affiliation with the bar may account for the lethargic responses.  Another explanation may be the confusion between disciplining prosecutors and freeing guilty defendants. ... Whatever the reasons, the absence of significant external controls requires prosecutors to be self-regulating.  With so much at stake, however, and the potential for abuse so great, self-regulation is not an acceptable safeguard (Gershman, 1988, p. IX).

It is asking too much to expect the most powerful individual in the entire criminal justice system, the public prosecutor, to be answerable only to himself or herself.  It is unfair and an open invitation to incorporate the negative effects of hubris in the body politic.

Prosecution and Child Sexual Abuse

In 1987 The National Center for the Prosecution of Child Abuse produced a manual for prosecutors dealing with child abuse cases (APRI, 1987).  The purpose of the manual is said to be:

... The mission of the center has been and will continue to be to promote the prosecution and conviction of child abusers while advocating aggressively on behalf of child victims.  To accomplish its mission the Center is dedicated to giving prosecutors the tools they need to prepare and present strong cases using the technology and resources of all professions charged with responding to reports of child abuse.  This manual is a major effort to meet the needs of prosecutors in this area (p. XVII).

The National Center is the champion of vigorous and aggressive prosecution and conviction of child abusers.  The manual gives information about victims, offenders, trial strategies, defense cases, etc., but the major thrust is to encourage prosecutors to establish multi-disciplinary teams bringing together all the players in the child abuse system.  The boss of the multidisciplinary team is the prosecutor.

Communities that have demonstrated the most success in prosecuting child abusers have been those in which prosecutors are not only actively involved in defining the role of those participating in the investigation but supervising the investigation as well. ... The role of the prosecutor should be to become involved in developing policies leading to effective, efficient, and coordinated investigations.  This involvement requires a commitment from the prosecutor's office of both time and personnel. ... However, once the prosecutor takes a leadership role in the system and begins to work with the personnel and agencies involved in child abuse investigations, the task becomes easier.  And, because of the prominent role of the prosecutor in the decision-making process concerning all allegations of criminal conduct, the prosecutor is in the best position to manage a coordinated approach and enhance the likelihood of its success (p. VII-2).

One of the models described in the manual is the program of District Attorney Robert Cramer in Madison County, Alabama.  Cramer (1985) describes the "mobilization" of his team within his office with full budget, personnel, and program control (Bailey, 1986) centering on a single building identified as the Children's Advocacy Center where all cases of child abuse accusations are handled.  This model of a multidisciplinary team under one roof, controlled by the prosecutor, is already followed in several cities (Hopfensperger, 1987) and is being set up in Minneapolis by Hennepin County District Attorney Tom Johnson, who is a member of the Board of the NCPCA (Brunswick & Newlund, 1987).

The policy and program of the National Center, if successful, will produce a unified system of targeted prosecution across the land with every county having a special multi-disciplinary team that handles all accusations of child abuse.  This team will be controlled in all aspects by the public prosecutor in that county.  The end result is that all child abuse cases will be under the control of the single most powerful figure in the criminal justice system, the public prosecutor, who has no external controls and no accountability but is expected to exercise self-regulation.

The prosecutor will get newsletters, brochures, special releases, continuing trial helps, and even a special prosecutor from the National Center to cross examine expert witnesses.  There will be a series of training seminars by the National Center around the country for District Attorneys and Assistant District Attorneys on prosecuting suspected child abusers.  This emphasis will make persons suspected of child abuse a top targeted population in every county in the country.

If the prosecutor remains faithful to pursuit of justice for all the people, there may be some advantage administratively in a unified command of all those the law says are to be involved in allegations of child abuse.  There may be a reduction in the number of interviews a child may go through.  There may be somewhat better control of the investigative process and evidence may be gathered more efficiently.  There may be an improved utilization of staff time that can save a bit of money, although the extra staff initially required to start such a program will add considerably to county budgets.  There may well be proportionately more convictions than previously.  This is the experience that Cramer (1985) reports.

If self-regulation and personal integrity of the prosecutor fail to maintain an individual commitment to pursuit of justice for all citizens, however, there is an open door to all manner of chicanery, demagoguery, personal ambitions, and vendettas.  Establishing a system oriented toward aggressive prosecution that is run by prosecutors with no external checks and controls, with a criminal justice system that enables and rewards prosecutorial misconduct, and in a social climate in which a majority of the public is ready to hang all persons accused of child abuse has some danger connected with it.  The danger is that the system will produce an unacceptable number of false positives, that is, innocent people wrongly prosecuted and wrongly convicted of child abuse.

The Supportive Cadre

Prosecutors have developed a supportive cadre of professionals who provide information, are given grants to conduct research, offer assessment and evaluation services, and massage the media and politicians to gain public support for favored policies.  This cadre is perceived by prosecutors as colleagues and assistants in the task of generating an "awareness of existing information (that) can prove to be of substantial benefit to prosecutors dealing with child abuse cases" (Goldsmith, 1988).  The cadre began to take shape with the federal initiative to create child abuse teams when federal funding for such teams was made available in 1976.  Creation of child abuse teams by state and local authorities opened the door to additional federal funding.

Child protection workers, usually social workers with MSW training but also many with only a BA level of training, were given authority to investigate and act upon reports of abuse.  If a report was "substantiated" by a child protection worker, ostensibly for the protection of the child, immediate action could be taken to place a child in protective custody or remove an alleged offender from any contact with the child.  The coalescence of the criminal justice system, law enforcement, and a welfare system that is equipped with great power and discretion to intervene in families led to the emergence of a growing support system between prosecutors and a small group of mental health professionals.  This support system has no accountability or review process.

The availability of public money to pay for evaluation and treatment of alleged victims, investigation of the factual claims, victim advocacy positions within the prosecutor's office, conferences of groups focused on child abuse, and research programs directed toward supporting evolving policies and procedures quickly built the professional cadre.  It includes psychiatrists, psychologists, and social workers in public agencies, academic institutions, and private practice.  The most important fact about this group is its power to act long before there is any adjudication of the abuse allegation in the justice system, criminal or civil.

The prosecutor's manual produced by the National Center for the Prosecution of Child Abuse (APRI, 1987) bemoans the use of mental health professionals by the defense in responding to an allegation.  By clever use of quotation marks ("experts") and pejorative terms (purported experts) the message is given that anybody whom the defense may call is not really an expert, not knowledgeable, and finally is in it only for the money.  "Defense experts are appearing with more and more frequency, as the market for their services increases" (APRI, 1987, p. V-35).  Anyone who provides information from the science of psychology to aid in a defense is called a "hired gun" on that basis alone (Peters, 1988).  The implication of being a mercenary is a gratuitous extra message not included in the decision to apply the term but included in the meaning conveyed.

It is the choice by prosecutors and their supportive cadre to use expert witnesses to bolster and support the prosecution case that requires the defense to respond with experts who can responsibly dispute the claims of the prosecution.  Especially with younger children, the charge of child abuse often rests upon uncorroborated statements of a child elicited under circumstances and by procedures that markedly reduce the reliability of the child's statements.  Therefore experts are relied upon by the prosecution to give the fact finder the impression that the statements are reliable by corroboration through expert opinion (APRI, 1987).  A defendant must either challenge that expert opinion or accept a high probability of conviction.

The Multi-Disciplinary Team

Having a multi-disciplinary team is no guarantee that outcomes are better.  It all depends upon the quality of what goes on within the team framework.  A team can produce inferior, inadequate, or mistaken decisions if there is no critical, rational voice within the group.  If nobody challenges any of the assumptions or the quality of the process, the result is pooled ignorance or pooled bias.  The decisions then do not reflect studied, objective analysis of the factors in a given case, but rather the unexamined enthusiasms of a group where there is no dissent or no challenge to the group's consensus.  The unspoken group norm is don't tell anybody what they are saying is foolishness, stupidity, or nonsense.  If anybody express a critical rationality, it is a deviation from the group norm.  Such behavior is viewed as abrasive, oppositional, difficult, and coming from an outsider.  This is not limited to child sexual abuse teams.  It is the same phenomenon observed in case conferences, business groups, church groups, and the like.

There is sufficient history and precedent in the criminal justice system to believe it does not tolerate any unpopular dissenting view.  In 1650 John Lilburne was tried for treason against the Cromwell Parliament.  He requested assigned counsel because:

... no eminent experienced lawyer dare well meddle with my business, no, nor so much as bestow a visit upon me, but he runs a hazard of being undone (Pollitt, 1964, p. 9).

Andrew Hamilton in 1735 defended Zenger, an unpopular newspaper editor, and was disbarred.  John Adams and Josiah Quincy defended the British soldiers charged in the Boston Massacre.  Adams wrote of the incredible abuse heaped upon them:

... It is impossible to realize ... the abuse heaped upon Mr. Quincy and myself. ... We heard our names execrated in the most opprobrious terms whenever we appeared in the streets of Boston (Pollitt, 1964, p.9).

Throughout post WW II history, those who have spoken up for or defended unpopular causes and unpopular persons (Nazis, communists, Blacks, Hispanics, poor) have "run a hazard of being undone" and many have been undone personally, professionally, and financially (Miller, 1985; Pollitt, 1964; Winfree, 1987).

Anybody who raises a caution about child sexual abuse is demeaned, discredited, actively opposed, and disregarded by the system dealing with accusations.  Prosecutors, child protection workers, and law enforcement officials, have repeatedly attacked and rejected therapists or evaluators.  Prosecutors have said on the record in Hennepin County that mental health professionals are not acceptable because they do not go along with the county and agree with the county's view.  Judges have ruled some professionals are unacceptable as therapists or evaluators and ordered that children with whom there was a successful therapeutic relationship must be sent to other strange psychologists who are on the counties approved list.  One woman was told that she had a choice.  If she continued to have her children see therapists (fully qualified) whom the county did not like, they would be taken away from her.  If she wanted to keep her children, she had to accept the county ordered therapist.

Prosecutors and child protection workers in any given county have a small group of trusted, cooperative professionals to whom they refer everybody for evaluation and therapy.  These are the people who will get hired and included in the unified center.  Therapists not directly employed by the county are co-opted into the system (Cramer, 1985).  Whatever the merits of the individual case, this system produces an homogeneous, unilateral group likely to be highly resistant to change.  So far there is no indication, in these multi-disciplinary groups, of a serious, thoughtful attempt to examine the issue of false positives, the possibility of making a mistake, and the harmful consequences to all, including the child, if a mistake is made.

Putting people of like mind together in one facility, having all children brought there, and then claiming it is an improvement and that the problems have been solved, will likely result in an increase in the number of false positives.  The risk of increased false positives might be alleviated if there were a conscious effort to include persons in the mix who represented a cautious and balanced approach.  We have little confidence, however, that the system could accept a divergent view.

A second objection to this model is that the prosecutor's office controls the purse.  The power in having control of the money is pretty basic.  That fact alone means that the prosecutor's office will run the place.  The official policy is aggressive prosecution.  This approach is more likely to increase the frequency of false positives than decrease it.  Conceptually, however, a stance of aggressive prosecution does not need to include aggressive and over-determined assessment or investigation.  It should be possible to have a careful and reasonable investigation that is followed by a vigorous prosecution when there is a strong case.  The difficulty is in the nature of the assessment and the judgment to proceed to prosecution when there is a serious question about the case.

Misconduct, Tyranny, and Injustice

Recently a letter from New Zealand arrived at our office.  The letter presented the experience of a group of parents in Christchurch, New Zealand, who believe they have been treated unjustly and unfairly by their criminal justice system in accusations of child sexual abuse.  They formed an organization called PAIN (Parents Against Injustice: a similar group has existed in England for over three years).  After only four weeks the group has over 40 persons "directly involved with allegations made against them."

... We are all aware of the. . . attack on the family and can do very little.  Everywhere we go doors get closed.. .. Sir, we have a police-officer here in Christchurch in the sexual abuse team who is interrogating our men folk and suggesting "It would be best for all of us if you go home and put a bullet through your head."  As Jesus is my Saviour that is what is happening.  Families torn apart.  Pressure put on wives to start divorce proceedings or they will never see their children again. ... Honestly I can say we considered suicide as a family as an option.  What we didn't realize was so had most of the families involved with PAIN.

When asked by the Crown Solicitor to provide testimony for the judiciary inquiry in the Cleveland/Middlesborough sexual abuse scandal, we met for an evening with a group of about 25 parents of children who had been taken away on the basis of the false sign of a reflex anal dilatation response.  The Labor MP, Mr. Stuart Bell, who had initially exposed the issue and asked the question in Parliament that led to the inquiry, was present as well.  There was unanimity among the parents that they never thought such things could happen in their country.  Several references were made to the Magna Charta and the history of justice and freedom to show how such events were impossible in England, yet their very own children had been taken away without cause and without any due process.  They had great difficulty accepting that everything they had learned to believe about justice in their country was false but they now knew it was.  Mr. Bell, MP, was just as incredulous and incensed.

We have had letters from around the world telling stories of claimed false accusations of child sexual abuse, children taken away from parents by authorities, families destroyed, suicides caused by despair over false allegations, destroyed careers and bankruptcies.  A popular local politician from New Zealand told us how he and his family discussed his suicide after a false allegation was made by a woman, now an adult, that he had "touched her" sexually more than ten years earlier.  He described the behaviors of police and the government's solicitor with sadness, for he would never have believed injustice could happen that way in his country.  A psychiatrist from Holland came to Minneapolis to visit and consult with us.  He told of the authorities in Holland responding to accusations of child sexual abuse with precipitant judgment, harshness, and punitiveness.  He saw this pattern as different than the response generated by any other accusation of crime.

Frequently, in cases where we provide consultation or expert witness services, the accused and/or the accused's family or friends say the same thing we heard from other countries.  "I would never have believed it could happen in America!"  They talk of oppression, injustice, unfairness, and ruthlessness by prosecutors, law enforcement, and child protection workers.  They sometimes make analogies to Nazi Germany and Storm Troopers or to communism and the KGB.  In military court martials, officers and noncoms, friends of the accused, have said they are disgusted with the military, they will get out at first opportunity, that they know now the military has no interest in justice or fairness.  When men have been acquitted in military court martials, commanding officers have called in their friends in the service and told them to have nothing further to do with the acquitted or their careers in the military are over.

Prosecutor and supportive cadre behaviors have been reported to us by individuals accused, defense counsel, and friends or family.  A prosecutor organized a group of parents of alleged victims, met with them for months prior to trial, and orchestrated their appearance in the courtroom.  He encouraged them to demonstrate in the hallway.  The threats, yelling, screaming of obscenities, and violent gestures toward defense witnesses by this unruly mob led the judge to bring the jury into the courtroom with additional armed guards for the last three days of the trial.  The judge denied defense motions for a mistrial.  The jury convicted and an appeal was denied on the basis of the harmless error doctrine.

A series of prosecutors brought charges of bizarre and highly improbable sexual abuse against five individuals to four grand juries across a five-year period.  Repeated indictments were obtained and either dismissed or dropped.  No trial was ever conducted.  But it took the State Supreme Court's ruling to stop this prosecution conduct and end the nightmare for the individuals accused.

In several instances it has been shown that prosecutors concealed exculpatory evidence from the defense.  This ranged from concealing that a child had been sexually abused by the father to hiding pages of documents from the police investigation.  In a civil suit against a prosecutor's office, the plaintiff maintains there is proof of fabrication of evidence by the authorities.

Several times appellate courts and state Supreme courts have set aside and reversed convictions on the grounds of undue influence on the jury or the inadmissibility of evidence brought by the prosecution.  In one instance a court officer struck up an affair with a jury member.  A jury member gave an affidavit that a reporter on the jury, a friend of the prosecutor, misinformed the jury about sentencing guidelines.

A common complaint is that nobody from the prosecutor's office has ever interviewed the person accused but the assumption is made immediately that the accusation is true.  The only chance a defendant has to tell his side of the story is in the courtroom at the trial.  This leaves the individual feeling helpless and unable to affect the process at all.

When a father is accused, often mothers are told they must leave their husband and believe abuse occurred or they will have their parental rights terminated.  Three children, aged three to seven, were seized on the street and put into foster care after the father was accused.  He was acquitted in a criminal trial, but the state has moved in family court to terminate parental rights claiming the father did abuse the children, the mother failed to protect them, and is not meeting their critical emotional needs because she believes her husband did not abuse them.

A man befriended a young lad who stayed overnight with him on two occasions.  The second time the lad claimed the man had kissed him on the neck and rubbed his buttocks.  This was the only charge.  The man said he had kissed the lad on the cheek and patted his buttocks while saying good night to him.  In closing argument the prosecutor maintained that any person touching any child anywhere on their body which made the child feel uncomfortable was guilty of sexual abuse.  He then said that no man should be able to escape punishment for the crime of sexual abuse by claiming he was only trying to be affectionate.  The man was convicted and faces several years in prison.

A college professor was charged with eleven counts of sexual abuse of a four-year-old neighbor child and one charge with a nine-year-old neighbor girl.  He was alleged to have rubbed suntan oil on the shoulders of the older girl and in doing so touched her chest.  He agreed he had rubbed suntan lotion on the child but denied touching her chest and denied all of the charges of sexual behavior.  (He and his wife had a part time business selling cosmetics including suntan lotion.)  The jury acquitted on the eleven charges of sexual abuse but found him guilty on the single charge of rubbing suntan lotion on the older girl.  He has spent two years in prison for his conviction on this one charge.


In this country and others, increasing numbers of people are persuaded by their own personal experience in an accusation of child sexual abuse that their government is tyrannical, oppressive, and destructive.  They despair of any hope or recourse to a standard of justice and fair play under their present rulers.  Prosecutors are believed to be evil, wicked, conniving, and unscrupulous and only concerned with winning cases.  Law enforcement and child protection are enemies whose capricious behaviors are feared more than any other.  One man, who claimed his family had been destroyed by a false accusation, said "I can't wait to get to Nicaragua and kill fucking Americans!"  A secret volunteer group, calling itself FIST, spoke on a national talk show (Morton Downey) and described how they would forcefully mount an armed raid to abduct children and relocate them with their falsely accused parent in other countries.

On the other hand there is a well-developed sanctuary movement with a network of "safe" houses.  Mothers, who believe their children have been abused but also believe the justice system has not affirmed abuse and is not protecting them from the abuser, kidnap their own children and hide them from authorities in the safe houses.  Some mothers, like Elizabeth Morgan in Washington D. C., have gone to jail for months rather than reveal where their children are.

The malaise and despair of justice by so many caught up in the child sexual abuse morass is surely an unintended effect and it may never issue in anything more than a widespread feeling of anomie and injustice, disgruntlement and alienation from the society.  However, the criminal justice system ought be concerned about the impact prosecutorial behavior in child sexual abuse cases has on the people.

People on both sides of the justice system's actions those who believe abuse happened and those who believe abuse did not happen are beginning to act in open rebellion against the justice system.  At the very least this gives the message that what is being done is not working to produce what it is supposed to produce a citizenry believing in and accepting the justice system's workings as fair, just, and right.


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* Ralph Underwager is a licensed consulting psychologist and Hollida Wakefield is a licensed psychologist at the Institute for Psychological Therapies, 2344 Nicollet Avenue South, Suite 170, Minneapolis, Minnesota 55404

This article will appear in B. Rossen and J. Schuijer (Eds.), Polilick van Zederang. Amsterdam: Sweps and Zeitinger, in press.  [Back]

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