Defense of Child Molestation Charges

Joel Erik Thompson*

ABSTRACT: Defending against child molestation requires knowledge of both child sexual abusers and of people who make false allegations.  Careful investigation and planning and an aggressive and assertive approach are necessary for a successful defense.  Suggestions are given for an effective defense before and after charges are filed and for addressing special problems at trial.  There are many flaws and abuses in the way the legal system handles accusations of child sexual abuse and education concerning false allegations is required to bring about improvements.

"Worse Than Murder!"

Is there any crime worse than murder?  If the feelings and emotions of the community (hence the pool from which jurors are chosen and to which the media appeals) provide any indication, the answer to the question is a resounding "Yes."  If you are not convinced, at your next social gathering casually mention that you are defending someone accused of child molestation.1  The predictable response is for listeners to wrinkle up their noses and state with disgust, "How can you represent such scum?"  If your reply is, "Because my client is innocent," anticipate your listeners will respond, "Oh, sure," with obvious disbelief.  Had you told these same listeners you were defending someone charged with murder, a predictable response would be, "That sounds really interesting.  Tell me about the case."

This is not intended as an accurate, scientific assessment of community attitude, but merely an illustration of the substantial biases, rigid ideation and deep-seated emotionalism that surround allegations of child molestation.  What can you say in defense of a person who forces or coerces a child into sexual activity?  How loathsome for an adult to misuse and abuse a child's naiveté, trust and love merely to satisfy a lustful urge.  Yet consider the converse.  How terrifying, frustrating and disillusioning must it be for an innocent person to be accused of such conduct, particularly so when the accused is a teacher, stepparent, neighbor or other person who has extended himself to care about, love and counsel a troubled child.  Is there a more malicious way to violate the Ninth Commandment and bear false witness against a person?

It would appear that the Arizona legislature has no grasp of the viciousness of such a false accusation or the magnitude of the resulting destruction to an innocent person maliciously and falsely accused.  If one presumes that a legislator represents the views of his or her constituents, the public does not see false accusations as a problem.  The same statute, A.R.S. §13-3620, that requires virtually every person with responsibility for the care or treatment of a child (physicians, teachers, social workers, psychologists, parents, etc.) to report any suspected nonaccidental injury or denial of necessary medical treatment or nourishment, also makes it a class 1 misdemeanor criminal act not to make such a report, even if the failure is the result of negligence.  By contrast, a 1989 statute, A.R.S. § 13-3620.01, makes it a class 3 misdemeanor (the absolute minimum category of criminal conduct in Arizona) to maliciously, knowingly and intentionally make a false report of child abuse or neglect.2  The crime of cruelty to animals or poultry is treated more seriously as a class 2 misdemeanor.  Thus, in the eyes of our legislature, it is apparently worse to be cruel to a chicken than it is to maliciously, knowingly and intentionally report falsely to the police that someone has abused a child.

To defend against charges of child molestation, it is necessary. to understand and deal with a wide range of human motivation from why people "do it" on the one hand, to why people fabricate accusations on the other.  Yet for all the media attention, medical and legal professional involvement, and public focus, there is remarkably little scientifically sound information on either side of this issue.

What Kind of Person Molests a Child?

To generalize in a nonscientific way, molesters fall into three categories:


The pedophile. There appears to be a commonly accepted, but largely unsubstantiated, opinion among professionals that the "true" pedophile is not "curable" through conventional methods such as psychotherapy, avoidance conditioning or reorientation counseling.


The situational pedophile.  By contrast, equally accepted but largely unsubstantiated opinion holds that the situational pedophile is very amenable to treatment.  Because such a person is not "committed" to sexual contact with children but is merely responding to a particular situation, proper treatment will reorient such a person's sexual interests.  To illustrate, if one accepts as factually accurate that more homosexual activity occurs in prison than in the general population, it does not necessarily follow that those with homosexual tendencies commit more crimes or are imprisoned more frequently.  Rather, it is plausible that those with heterosexual preferences simply tend towards homosexual activity when heterosexual opportunity is removed.


The misguided molester.  This person is one whose background taught that such activity was acceptable, ordinary and "normal."  Such a background would include a person molested as a child, a person raised in a culture where sexual activity with a child is acceptable, or a person who cannot differentiate between loving and sexual longing and so acts upon loving feelings only in a sexual way.

What Kind of Person Fabricates a Molestation Charge?

Obviously, such charges have been fabricated by the truly malicious and hateful person.  But the emotionally driven, the well-intended but misguided, and the unskilled or inept have also fabricated charges.  Bear in mind that fabrication need not be intentional.


The malicious and hateful may include a spiteful neighbor who maliciously reports that the person3 next door molested an infant by "touching" its genitals, knowing the report is false (medical examination would detect no signs to either corroborate or rebut such an allegation).


The emotionally driven may include a vengeful spouse frustrated by custody/visitation arrangements in a divorce who alleges molestation of the child by the other spouse hoping to terminate that spouse's contact with the child.  It may include the 14-year-old stepdaughter who resents mother's new husband because "he broke up Mom and Dad's marriage," because he has assumed the role of household disciplinarian or because "nobody ever asked me if it was okay for him to move into our family."


The well-intended but misguided may include the teacher, medical professional, detective or other who relies on training, reading and observations to reach conclusions that are incorrect.  (This will be discussed below in further detail.)


The unskilled or inept include those who incorrectly presume a child's actions or sexual interest result from being victimized, as well as those who unintentionally "create" molestation reports by unskillful questioning of a child.  It is not just defense lawyers, or "their" experts who are concerned about this problem.  Responsible police and social welfare agencies share the concern for objectively gathering the facts before reaching conclusions and for protecting the true victim.4

Nowhere is it more dangerous for the investigator to preconceive what happened than in a case of reported child molestation.  It is not at all uncommon for reports in these cases to be made days, weeks, months, or even years after the alleged criminal action.  There is often no corroborating medical or scientific evidence.  When such crimes occur, they often occur in secrecy so there are usually no witnesses.  Since often the only evidence of the crime is the statement of a child, it is crucial that the child be questioned in a manner that seeks out the truth, not merely in a manner that produces a statement to support an investigator's presumptions.  Responses to "What happened" will be very different from responses to "Who did this to you?" or "Did Daddy touch your pee-pee?"  Children are very susceptible to suggestions.5  This suggestibility can be easily reinforced, either intentionally or not, by discussion of a child's allegations in the presence or hearing of the child.  Allegations, heard often enough, become indistinguishable from fact to the child.

The force of suggestion, always strong, is particularly potent with the impressional [sic] and plastic mind of childhood. ... But, without intending any such result, the repetition of supposed facts in the presence of a child often creates a mental impression or conception that has no objective reality in an existing fact.6

Given this background, how does a lawyer defend an alleged "child molester"?  Careful, intensive investigation and planning are the only answers.  The approach depends somewhat on the stage at which lawyer involvement begins.  Have charges been filed?  Has the client made statements?  Has the putative victim been examined by a physician?  How old is the child?

Don'ts and Do's

Do not rely on your client's version of the facts.

Every client wants to be liked.  But in child molestation cases, the emotional overtones make it even more likely than usual that your client will deny criminal conduct even in the face of overwhelming evidence to the contrary.  The converse is also a concern.  Some clients honestly don't understand enough to distinguish between justified and unjustified touching of a child's genitals, between accidental and intentional conduct, or between "the law" and their notions about what is illegal.  Sometimes innocent clients admit to criminal conduct which never occurred.  A facetious example would be the 85-year-old man who admitted to police that a young woman's false charge of rape was true.  Later, he explained that he was too much of a gentleman to call the lady a liar.  Besides, he was flattered by the allegations.

Do not rely on police or child welfare agency reports.

Police and social workers are often woefully unskilled in interviewing techniques.  A child who is interviewed by an unskilled interviewer is often unable later to differentiate between the truth and the suggestions planted by the interviewer.  Children are very prone to accommodating authority figures.  Thus, if a detective asks a child "Did Daddy touch your pee-pee?" the child is apt to say "Yes," regardless of whether that is factually accurate, if the child perceives that the detective wants that answer.  Unfortunately, having once adopted an affirmative response to the question, particularly if the child receives an approving response, such as a smile, a pat on the shoulder, or an increased attentiveness from the detective, the child will be drawn into elaborating further.  Children may also be readily led into compounding an initial error by a persistent request for details.7  When this tendency is combined with a child's inherent suggestibility, a child can readily be brought to accept as fact the presumptions of the questioner.  After such an unskilled interview, the child may truly no longer be able to differentiate between fact and suggestion.

Do not accept medical help or other "expert" opinion without question.

It was long a widely accepted opinion that "children almost never make up stories about being sexually abused."8  Police and social workers were presented with this belief in their training and seminars and it became accepted as a "fact" despite the lack of any scientific basis for this "factual" opinion.  When those same police and social workers testify as "experts" in molestation cases, they repeat this opinion on the ground that the opinion is widely accepted by experts in the field and was relied upon by them in reaching their own "expert" opinions.  Thus, the myth prevails, the untested opinion becomes accepted as scientific fact, and the fact finding process is further subverted.

Other experts have debunked such myths.  Dr. Otto Bendheim of Phoenix, one of the founders of Camelback Psychiatric Hospital and a forensic psychiatrist with impeccable credentials, told a recent seminar group, "All people lie to varying degrees.  Children are simply better at lying than adults.  First, because children don't necessarily have strong differentiation between fact and fantasy and second, because children can't envision the consequences of lying, they have no sense of guilt to give them away."  According to Bendheim, "Reliable statistics show that at least 70% of these charges are totally unfounded or, more correctly, founded on fraud and deceit."9

Bendheim has personally seen in his office "more than thirty totally innocent people who have been utterly destroyed by this type of accusation and who had almost no capacity to fight against the allegations."10  Bendheim is currently writing a detailed paper on "Munchausen Syndrome by Proxy."  MSP, as it is known in medical/therapeutic circles, is a clinical diagnosis in which a physical or mental disorder (including molestation) is either fabricated or induced by a parent or other adult caretaker.11  Although this condition was at one time considered rare,12 since its initial description by Meadow in 1977,13 the condition has been observed and diagnosed with increasing frequency and most authors now agree that the incidence of MSP has been grossly underestimated.14  This is particularly remarkable since, although Munchausen Syndrome (facetious disorder) appears in the Diagnostic and Statistical Manual III-R, Munchausen Syndrome by Proxy does not.  As a result, many professionals have never heard of it, so therefore can't diagnose it.

The chilling story of MSP and its effect on innocent people is illustrated in the book, Bad Moon Rising (Currently Out of Print).15  A divorced and remarried father who had raised the older of his two children permitted the boy to go live with his biological mother.  After the younger sister made allegations of sexual abuse, so did the boy.  As a result, the children were removed from the mother's home and a number of relatives were indicted.  The resulting investigation established how the mother had brainwashed the children and induced them to fabricate allegations of abuse.  Only in retrospect, after subsequent events made the diagnosis more apparent, was the court-appointed psychologist (along with the author of the book) able to make the diagnosis of MSP.

Aggressive Defense

The watchwords for successfully defending against molestation charges are "aggressive" and "assertive."  Rhetoric and adversarial bluster aside, in the absence of a media circus/political event, such as the McMartin Preschool case, it is reasonable to presume that an honorable prosecutor has no wish to destroy an innocent person based on false or malicious allegations of molestation.  However, in the usual scheme of things, the prosecutor knows only what the police or social workers have stated.  Are they objective?  Commenting on social workers (and inferentially the police), expert forensic psychologists bemoan the fact that such professionals "appear not to perceive the investigative role as one of helping to determine truth but one of helping the child to remember facts and details that will aid the prosecution to establish a case against the perpetrator."16  In cases where a reasonable argument can be made for your client's innocence, it is incumbent on defense counsel to be assertive and approach the prosecution early so that defense factual input is available before the charging decision is made.

A passive approach by defense counsel and a "wait and see" attitude can virtually assure the charging of the client.  Once charged, it is the rare defendant, guilty or not, who avoids a felony conviction.  In an age of long, mandatory prison sentences upon conviction, trials are reserved for the brave and reckless.

Returning to the question whether "Worse than murder?," it is worth noting some sentencing provisions of the Arizona criminal code which may give a partial answer.  Offenses against children such as second degree murder, sexual assault, child molestation and sexual abuse all are "dangerous crimes against children" and carry mandatory imprisonment without parole for a first offender.  The presumptive sentences are 20 years for second degree murder and sexual assault, 17 years for molestation and 10 years for sexual abuse.  The "less serious" offense of second degree murder of a nonchild carries a 15 year sentence, with parole eligibility after serving only one-half the sentence.

In the face of a "plea bargain" offering immediate probation eligibility in return for an "Alford" or "no contest" plea, it is the exceptional defendant who will insist on vindication at trial.  This is particularly so if the defendant is aware that parental rights may still be terminated despite an acquittal, and that the community will probably believe the acquittal resulted from either "a legal technicality" or some slick lawyer "pulling one off' rather than the innocence of the defendant.  Under any scenario, once charged, the defendant suffers irreparable harm which is even more pronounced in smaller communities where everyone knows everyone else, at least by rumor and reputation.  Given the present media/political atmosphere, few in the community are ever open to the suggestion that the defendant is really the victim or is innocent.

What should be done before charges are filed?

Unless the defense actively involves itself in the charging process wherever possible, there is a high risk of irreparable injury to your client's freedom, reputation and sanity.  In jurisdictions such as Arizona, which permit a suspect to advise the grand jury of a willingness to appear before the grand jury and give testimony, that is a strategy to be aggressively pursued with an innocent client.  Such a strategy should be presumed unless contraindicated by the circumstances.  Great care and preparation should be exercised, however, before following that course.  Even when a charge becomes inevitable, active and aggressive involvement at the precharging stage may result in a "lesser" charge initially.  This will provide a better negotiating position to reach a disposition acceptable to your client.

Acknowledge the prosecution's proper and legitimate right to be concerned about your client's freedom given the nature of the allegations being dealt with.  Try to find points of accommodation and agreement.  If the client and victim were residing together, consider agreeing to limited contact between them which may include supervised visitation.  This will not only prevent additional allegations from arising but it will also give a prosecutor some comfort and security in moving forward cautiously and deliberately.  Consider immediate counseling, but with caution.  Counseling conversations may not be privileged.17  Under the circumstances, it may be appropriate to have the counselor assist in case preparation as agent for the attorney, thereby preserving confidentiality.  The same procedure may be considered in conducting a private, screening polygraph to test the client's veracity.

If allegations arise during a divorce or custody case, protect your client.

Attend every deposition or hearing, even if the client has other representation in that case.  Make certain the client makes no damaging statements or admissions.  Use the opportunity to "discover" information regarding the history, content and chronology of the alleged offenses and the investigations that have occurred.

Changes in Strategy After Charges are Filed.

Once you have done all you can, if your client is still charged, assertiveness must be raised a notch.  Investigation and discovery must intensify.  Whereas you may have been limited regarding access to copies of police and investigative agency reports, etc., before charges were filed, you now have subpoena power.  The witnesses you had strategically avoided (i.e. victim, victim's parents, investigating officers, etc.) or those who were previously unavailable, now are subject to interview or deposition pursuant to Rule 15, Ariz. R. Crim. P.  This is an area of pending change.  Under the so-called "victims' rights" legislation, a strong and continuous effort is proposed to prevent discovery of these critical witnesses.  Because pretrial interviews may be traumatic for the true victim, it has been argued that such interviews should either be eliminated or conducted in a non-traumatic (i.e. prosecution-oriented) setting.

Overlooked in all the rhetoric is the "trauma" to an innocent defendant whose only chance for salvation is the determination of the truth, based upon such interviews.  But as one of our notable Arizona legislators recently stated publicly, the sexual abuse of children is considered such a serious problem that all suspects need to be eliminated.  According to this school of thought, it does not matter if this means the destruction of some innocent people in the process since that is simply the price of vigilance.18  If the Constitution and its protections for citizens are also destroyed in the process, at least it was accomplished with honorable intentions.

Determination of the competency of an alleged victim as a witness is always a consideration.  Although attempts have been made to ensure the admissibility of testimony of child victims regardless of age,19  including testimony which would otherwise constitute hearsay,20 even if that testimony is taken outside the courtroom,21 the issue of competency of the child as a witness must always be considered.  Every effort to exclude the untrustworthy testimony of a child must be made.  The testimony of a child may be excluded if the child is incompetent as a witness on the same basis as that of an adult witness.  In addition, if it can be established that the child has been so unskillfully handled during the investigatory phase that the child can no longer distinguish fact from suggestion or know what truthfully happened, the child may no longer be a competent witness.

Any effort to preclude a child's testimony solely on the basis of the age of the child will almost certainly fall.  Not only does A.R.S. § 13-4061 essentially preclude such a ruling, but also the U.S. Supreme Court established almost a hundred years ago that even very young children may be competent witnesses.22  Arizona's courts have found 2˝-year-old children "not presumed incompetent"23 and have found a 3-year-old to be competent.24  To be effective, the argument must be particularized and must relate to the time when the child testifies, not the time when the alleged events occurred.25  The modern viewpoint, reflected in the Federal Rules of Evidence, is that the child is a competent witness unless "so bereft of the powers of observation, recordation, recollection, and narration, that the testimony is untrustworthy and thus lacks relevancy."26

Given this standard, it appears at first consideration to be virtually impossible to have a child ruled incompetent to testify.  However, if defense counsel persists in investigating the entire background of the child witness's statements, the impossible may become possible.  Such an investigation must establish the chronology of every statement made by the child regarding the events, the identity of those to whom the statements were made and the circumstances under which they were made.

Try to determine the exact language of statements and questions.  Is there any prior history of sexual abuse of the child?  Is there any history of sexual abuse in the statement taker's past?  Has the statement taker been trained to avoid suggestion in taking statements of this type?  Does the statement taker have strong biases on sexual issues (such as an abhorrence to anal intercourse) that could have been even inadvertently projected to the child?  What alternative sources exist for the child's knowledge of sexual details, such as movies, television, videotapes (i.e. do the parents have adult videos that are not kept under lock and key — bearing in mind that in this modem culture, it is a rare middleclass kindergartner who can't operate a VCR)?  What school programs on sexual education have been presented to the child, by whom and when?  "Good touch, bad touch" school programs and the written materials that accompany such programs should be obtained by subpoena duces tecum where appropriate.  Have any of the child's friends been sexually abused?

An area of particular concern is the use of "anatomically correct dolls."  This is a total misnomer.  The dolls are neither anatomically accurate, nor are they factually accurate.  For example, the boy doll has a flaccid penis, not an erection.  The inaccuracy for the child includes the fact that the dolls are all naked, unlike most of the "people" with whom the child has had social experience.  The tainting of the child's ability to recall facts which can result from the modeling effect of the dolls is substantial.  Modeling is perhaps the most powerful teaching medium for children.27  Extreme attention to detail is essential.  Even if the child has made no statements and was asked no questions, every parent can attest to the ability of children to eavesdrop on adult conversations.  This needs to be chronicled too.

If the court can be persuaded that the child has been so subjected to suggestion and distortion that any statement or testimony of the child would be untrustworthy, there is a chance of precluding the child's testimony.  This is not an argument that the client is innocent, it is an appeal to fairness to prevent the potential of conviction based on unreliable and incompetent evidence.  General allegations and possibilities will not prevail on this issue.  Defense counsel must be prepared to particularize the basis for the untrustworthiness of the child's potential testimony.  Expert testimony of psychologists or medical/psychiatric experts who have dealt extensively with these issues is extremely helpful and should be seriously considered.  If there is truly a reason to be concerned that the child's testimony may not be trustworthy, present that information to the court and provide both a factual and legal basis for the ruling you are seeking.

Special Problems at Trial

Be prepared to object to the presentation of "expert medical opinion" testimony regarding nonmedical issues.  Dr. Lee Coleman28 observes that a finding of sexual abuse is not a medical conclusion, but a legal one.  This is because "sexual abuse is not a diagnosis, it is an event."  Coleman's article should be read in detail to understand the range and extent of the problem of doctors making a diagnosis of sexual abuse based upon medical findings.  Medical "findings" are often little more than the writing down by the doctor of a child's statements as "medical history upon which doctors routinely rely" and based upon which the doctor reaches a diagnosis of sexual abuse.  Such a diagnosis often relies totally on the ''history,'' as provided by the child or the presenting adult combined with clinical observations that don't prove sexual abuse but which are merely "consistent with" sexual abuse.  These "clinical observations" are often nonspecific observations (such as "the vaginal opening was more dilated than normal") without any relationship to what is 'normal" nor any basis in scientific observation for its presentation as a "fact."  Coleman deals extensively with the lack of reliability of such observations and the opinions based upon them.

Presuming you have been unsuccessful during the pretrial stage in preventing use of such testimony, it is essential to preserve your objections at trial and to offer rebutting testimony to establish that such opinions are not based on "fact" and ought not to be persuasive to the jury.  Obviously, a jury instruction regarding the credibility of an expert witness and consideration of the basis for any opinions expressed is essential.  If such expert evidence is presented, it must be understandably argued to the jury.  Jurors are preconditioned to accept that the "objective" observations of a doctor are "factual" and accurate and that opinions based on such observations must be "true."

Be prepared to object to videotaped, pretrial statements made by child witnesses.  Such statements may be admissible, so long as the prosecution was not a participant in the questioning of the child and questioning by the "objective" detective or social worker was not "calculated to lead the minor to make a particular statement."29  Anticipate also that the prosecution may seek either to prerecord the testimony of the child witness30 or allow the child witness to testify "live" via video from outside the courtroom31 rather than have the child testify in the courtroom.  Although the law generally permits such a procedure, the prosecution must first make a particularized showing that courtroom testimony would traumatize the child or make the child unable to communicate32 and must also make an individualized showing of necessity.33  (Editor's note: See Maryland v. Craig, United States Supreme Court 89-478, June 27, 1990.)  If the court permits use of a previously recorded statement of the child witness, the child may still be called to court to be cross examined.34  However, if the court orders the taking of testimony of the child either by prerecorded video or "live video," defense counsel cannot require the child to testify in court.35

Sensitivity in cross-examining a child witness, especially a very young child who is the alleged victim of sexual abuse, is essential whether it occurs in court, pretrial or on video.  Lawyers are a suspect class to jurors.  Those lawyers who defend accused child molesters are more suspect in geometric proportion.  Jurors' entire preconditioning is to be supportive and accepting of the child and antagonistic to defense counsel.  Any aggressive, argumentative, combative or antagonistic approach to the child should be undertaken with extreme caution.  The old adage prevails: "If you attack the king, make sure he dies, lest you do."

Are There Remedies for the Abuses Inherent in the Present System?

My answer is a not very enthusiastic or optimistic, "Yes."  Education is the key.  The public, the legislature, the judiciary, and prosecutors need to be educated that the problems inherent in the untruthful allegation of child molestation are devastating, that the incidence of such allegations is epidemic, and that the abuses can be significantly curbed.  There is no evidence that this is likely to occur any time soon.  The potential for extreme injustice will continue.  Clearly the true predatory child molester is detestable and children and society need to be protected from such a person.  But the malicious and untrue charge of such conduct is equally detestable.  The criminal justice system becomes the unwitting pawn and an instrument of private torture for personal benefit.  Unfortunately, there is very little check on that potential abuse of society and the criminal justice system at this time.  The penalty for such malevolence must be serious, or there can be no deterrence.  Prosecutors must be willing to prosecute the malevolent accuser with a fervor equal to that applied to the true child molester.

The public views a jury trial as a truth finding process.  They must be educated that the reality of extreme, mandatory prison sentences in these cases prevents the truth from being determined.  The legislative concern to heavily punish the deserving offender has been utilized as justification for "throwing out the baby" (justice) with the "bathwater" (nondiscretionary sentencing).  Discretion has not been legislated away, it has merely been shifted from the quasi-objective judge to the prosecution adversary.  Mandatory sentences have not satisfied the intention to severely punish the guilty offender.  It was not that long ago36 that such offenders received sentences in excess of a hundred years.  Even with parole eligibility at one-third of the sentence, those sentences exceeded what is now possible.  Nor have mandatory sentences insured that the guilty go to prison.  Witness the recent controversial nonprison sentence in Phoenix of a Catholic priest who molested boys at his retreat.

Because, too frequently, the mental image of the extreme offender (i.e. the predatory stranger who actually accounts for only one-tenth of the cases)37 is the only image that comes to mind when the topic of child molestation is considered, it is forgotten that there are other, less serious offenders under the same banner because of the very broad definitions contained in the statutes.  For example, the 15-year-old boy who amorously, and with her consent, touches the breast of his l4-year-old girlfriend through her sweater (i.e. indirectly touches the private parts of a child under age 15), is guilty of child molestation.  His youth provides no defense.  While I don't mean to imply that the molestation of a child is less serious if done by a family member, that is a factor which ought to be considered in determining an appropriate sentence.  Similarly, whether the molestation involved "indirect touching" of a child through clothing or involved actual sexual intercourse ought to be considered in determining the gravity of the offense, and hence, the appropriate sentence.

If the sentencing statutes were amended to provide appropriate punishment for the extreme offender, while permitting a sentencing judge to consider the gravity of the offensive conduct, together with surrounding aggravating and mitigating factors, including the relationship between the victim and the molester, sentences could be made to punish conduct, not classifications.  Not only would the deserving offender face the potential of an even more severe sentence than is presently possible, but also, the defendant charged with an offense of lesser gravity would be reasonably allowed to have a jury determine the truth of the allegations.  This would allow the jury trial, not the chilling specter of impending sentence, to determine the issue of guilt or innocence.  If found to be guilty, the defendant could be given an appropriate sentence.  By allowing the threat of a mandatory sentence to resolve the issue of guilt or innocence, justice is not served.

It is important to bear in mind that simply increasing the punishment for child molesters will not have an automatic deterrent effect and, in fact, may aggravate the problem.  Compulsive behavior is motivated differently than freely chosen behavior.  While some persons shoplift because of an expectation of financial gain, others are compulsively driven.  Substantial punishment will presumably be much more effective in deterring the first type of shoplifter than the second.  It must also be considered that if the punishment for child molestation is substantially harsher than the punishment for murder, for example, the molester has a greatly increased motivation to murder the victim to prevent identification and detection.

While it is clearly unpopular to "advocate" the rights of child molesters, and political suicide to be perceived in that posture, there is a serious problem attendant to the crime of child molestation.  That problem results from the reality that such charges are easily made, with no need for corroboration or objective evidence.  Once made, such charges have the potential for devastation to the innocent accused, with no realistic prospect of punishment as a deterrent to the false and malicious accuser.  Until some progress is made in achieving a balanced perspective, free from the virtual mass hysteria and emotionalism presently surrounding the issue, those who don't have fears about the potential for catastrophic injustice have simply not yet been presented with circumstances which force them to deal with and be educated about the problem.  Given the current status of the Arizona laws covering allegations of child molestation, ignorance is not bliss, it is dangerous and knowledge is terrifying.

Defense of Child Molestation Charges: Postscript

(Editor's note: This section was written after the above.)

In the last section, I discussed the hypothetical situation of the consensual "molestation" of a 14-year-old girl by her 15-year-old boyfriend.  Any thoughts of my being overly concerned and straining the interpretation of the law as it applies to my hypothetical have now been proven to be unwarranted.  On April 4,1990, the Arizona Supreme Court decided a case that is virtually identical factually to my hypothetical.38

A 16-year-old male juvenile was on probation for shoplifting.  A petition to revoke probation alleged the offense of sexual abuse based on the male having touched the breasts of a 14-year-old girl.39  The judge found that the touching of the girl's breasts was consensual, but also found that consent was not a defense because of her age.  The juvenile's probation was revoked.

On appeal, the juvenile argued that the statute was unconstitutionally vague and overbroad and that the legislature did not intend it to apply to minor offenders.  In a three to two decision, the Supreme Court found the statute to be constitutional and clear in its intent and sustained the revocation of probation.  The observations and political evaluations in Justice Moeller's opinion are worth noting:

Petitioner [the juvenile] attempts to persuade us that the state gains little by branding "teenage lovers" as sex offenders when they are not motivated by an abnormal desire towards children.  He claims that, as a matter of policy, it is unfair to brand innocent teenage behavior as criminal.  Although petitioner's policy arguments may have merit, they are presented to the wrong forum.  It is within the sole province of the legislature to set the age limit at which a minor can consent to sexual activity and at which a person may be prosecuted for such activity.  If the legislature wishes to amend Section 13-1404 to decriminalize consensual sexual activity between consenting minors, it may certainly do so.40

There was immediate reaction from the media and the legislature to the Court's opinion.  While this may be of interest to the Pima County juvenile in question, it will afford him no meaningful remedy.  He remains convicted, and as Justice Feldman noted in his dissent,41 having done no more than pet and caress, he will ever after be required to register under Arizona's sex offender law.42  It is an unfortunate reality that it often takes a glaring injustice or an absurd result of ill-drafted legislation, to effect the cure of a predictable anomaly of the law.



The terms "child molestation" and "sexual abuse" as used in this article are generalized terms including all forms of criminal sexual activity with a child.  For example, under Arizona law this generalized term would include the statutory crimes of Sexual Abuse (A.R.S. § 13.1404), Sexual Assault (A.R.S. § 13-1405), Molestation of a Child (A.R.S.) § 13-1410) and related nonsexually specific offenses such as child abuse, aggravated assault. etc.  [Back]


For the reader's perspective, disorderly conduct, making a false fire alarm and loitering at a school, college or university are class 1 misdemeanors.  Obstructing a highway by creating an unreasonable inconvenience, maintaining a public nuisance and picketing at a residence are class 3 misdemeanors.  [Back]


Effort is made not to perpetuate the presumption that the molester is male, since molesters may be male or female, heterosexual or homosexual, virile or impotent.  Similarly, both boys and girls may be either victim or false accuser.  [Back]


Sgt. M. Hertica, "Police Interviews of Sexually Abused Children," FBI Law Enforcement Bulletin, April 1987, p. 12.  [Back]


R. Cohen & M. Hornach, "The Susceptibility of Child Witnesses to Suggestions," 4 Law and Human Behavior. No. 3, 201 (1980).  [Back]


People v. Delaney, 199 P.896 (Cal. App. 1923), cited in "National Legal Resource Center for Child Advocacy and Protection," American Bar Association, Child Sexual Abuse and the Law, at 130 (3d ed 1983).  [Back]


E. Loftus & G. Davies, "Distortion in the Memory of Children," 40 Journal of Social Issues, No. 2 pp. 51-67 (1984).  (Author's note: Dr. Elizabeth Loftus is a nationally renowned expert on the psychology of eyewitness identification, including the associated memory process.  She is well known to the Arizona bar from the case of State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) in which the Arizona Supreme Court reversed a murder conviction because the defense had been precluded from presenting Dr. Loftus' expert testimony on the subject of eyewitness identification.)  [Back]


K. Faller, M.S.W., Ph.D., "Is the Child Victim of Sexual Abuse Telling the Truth?," 8 Child Abuse & Neglect, 473 (1984).  [Back]


O. Bendheim, M.D., "The Latest Epidemic: Child Molestation Charges," Round-Up, Maricopa County Medical Society.  [Back]


Supra, footnote 9.  [Back]


See D. Rand, Ph.D., "Munchausen Syndrome by Proxy as a Possible Factor When Abuse is Falsely Alleged," 1 Issues in Child Abuse Accusations, No. 4, 32-34 (1989); B. Zitelli, M. Settman & R. Shannon, "Munchausen's Syndrome by Proxy and its Professional Participants," 141 American Journal of Diseases of Children, 1099-1102 (1987); J. Libow & H. Schrier, "'Three Forms of Facetious Illness in Children: When is it Munchausen's Syndrome by Proxy?" 56 American Journal of Orthopsychiatry, No. 4, 602-610 (1986); M. Segal, D. AItmark & I. Carmel, "Munchausen Syndrome by Adult Proxy: a Perpetrator Abusing Two Adults," 174 The Journal of Nervous and Mental Disease, No. 11, 606-698 (1986).  [Back]


J. Jones, H. Butler, B. Hamilton, J. Purdue, H. Stern & R. Woddy, "Munchausen Syndrome by Proxy," 10 Child Abuse and Neglect, 33-40 (1986).  [Back]


R. Meadow, "Munchausen Syndrome by Proxy: the Hinterlands of Child Abuse," Lancet ii; 313-345 (1977).  [Back]


Supra, footnote 11, D. Rand.  [Back]


D. Ferguson, Bad Moon Rising: A True Story (Currently Out of Print), Winston-Derek, Inc., Nashville, TN (1988).  [Back]


R. Underwager & H. Wakefield. "Interviewing the Alleged Victim in Cases of Child Sex Abuse: The Role of the Psychologist." The Champion, The National Association of Criminal Defense Lawyers, No. 17 (Jan/Feb. 1987).  [Back]


In Arizona. A.R.S. § 13-3620F removes all privileges except the attorney-client privilege in civil, criminal and administrative proceedings regarding a child's neglect, dependency, abuse or abandonment and regarding any investigation of a child's neglect or abuse conducted by any peace officer or the Child Protective Service.  [Back]


Speaking on the subject of capital punishment for child molesters, Representative Leslie Johnson, in a letter to the editor of the Mesa Tribune published August 25, 1988, quotes her own statement made at the legislature as follows: "If we get a few innocent people, fine and dandy with me. I'm willing to take my chances."  [Back]


A.R.S. § 13-4061.  [Back]


A.R.S. § 13-4252.  [Back]


A.R.S. § 13-4253.  [Back]


United States v. Wheeler, 159 U.S. 523, 524-25 (1895) (child aged 5˝ years).  [Back]


Escobar v. Superior Court, 746 P.2d 39 (App. 1987).  [Back]


State v. Superior Court, 149 Ariz. 397, 719 P.2d 283 (App. 1986).  [Back]


State v. Garner, 116 Ariz. 443, 569 P2d 1341 (1977).  [Back]


Comment, "The Competency requirement for the Child Victim of Sexual Abuse: Must We Abandon It?," 40 U. Miami L. Rev. 246, 251(1985).  [Back]


Supra, footnote 16.  [Back]


L. Coleman, M.D., "Medical Examination for Sexual Abuse: Have We Been Misled?", 1 Issues In Child Abuse Accusations, No. 3, 1-9 (1989).  [Back]


A.R.S. § 13-4252(a)(8).  [Back]


A.R.S. § 13-4253A.  [Back]


A. R.S. § 13-4253B.  [Back]


State v. Vess, 157 Ariz. 236, 756 P.2d 333 (App. 1988).  [Back]


State v. Vincent, 159 Ariz. 418, 768 P.2d 150(1989).  [Back]


A.R.S. § 13-4253C.  [Back]


A.R.S. § 13-4252B.  [Back]


Prior to the enactment of the "new" criminal code effective October 1, 1978.  [Back]


D. Russell, "The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children: 7 Child Abuse and Neglect, 133-146 (1983).  [Back]


Matter of Pima City. Juv. App. No.74802-2, 164 Ariz. 25,790 P.2d 723(1990).  [Back]


A.R.S. Section 13-1404.  [Back]


790 P.2d at 732  [Back]


790 P.2d at 733.  [Back]


A.R.S. Section 13-3821.  [Back]

*Joel Erik Thompson is an attorney and certified criminal law specialist at 3104 E. Camelback Rd., #521, Phoenix, AZ 85016. (   [Back]

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