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
It was long a widely accepted opinion that "children almost
never make up stories about being sexually abused."8
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
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 ().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.
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
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.
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
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
Try to determine the exact language of statements and questions.
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
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
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.
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.
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
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
Supreme Court decided a case that is virtually identical factually to my
A 16-year-old male juvenile was on probation for shoplifting.
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
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.
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.
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.
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,"
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).
E. Loftus & G. Davies, "Distortion in the Memory of
Children," 40 Journal of Social Issues, No. 2 pp. 51-67 (1984).
note: Dr. Elizabeth Loftus is a nationally renowned expert on the psychology of eyewitness identification, including the
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.)
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
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).
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 (),
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.
Speaking on the subject of capital punishment for child molesters,
Representative Leslie Johnson, in a letter to the editor of the Mesa
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."
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).
State v. Superior Court, 149 Ariz. 397, 719 P.2d 283 (App. 1986).
State v. Garner, 116 Ariz. 443, 569 P2d 1341 (1977).
Comment, "The Competency requirement for the Child Victim of Sexual Abuse: Must We Abandon It?," 40
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).
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).
State v. Vincent, 159 Ariz. 418, 768 P.2d 150(1989).
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]