Michael G. Brock
“The mode of trial [for witchcraft] in the other countries is more easily ascertained. Sprenger in Germany, and Bodinus and Delrio in France, have left but too ample a record of the atrocities committed in the much-abused names of justice and religion. Bodinus, of great repute and authority in the seventeenth century, says, ‘The trial of this offence must not be conducted like other crimes. Whoever adheres to the ordinary course of justice perverts the spirit of the law, both divine and human. He who is accused of sorcery should never be acquitted, unless the malice of the prosecutor be clearer than the sun; for it is so difficult to bring full proof of this secret crime, that out of a million of witches not one would be convicted if the usual course were followed!’”
—Charles McKay, “Memoirs of Extraordinary Popular Delusions and The Madness of Crowds,” 1852 (available through Project Guttenberg) http://www.gutenberg.org/ebooks/
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“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
—Louis D. Brandeis, Olmstead v. U.S., 277 U.S. 438 (1928) (dissenting)
“No doubt you are the people, and wisdom will die with you…In the thought of one who is at ease there is contempt for misfortune...”
—Job 12:2; 12:5,
English Standard Version
In the interest of appearing tough on crime, Congress, the courts, and the executive branch of government have all contributed to the erosion of our liberty and due process rights, particularly those of males. Most of us still believe we are presumed innocent until proven guilty, that the state has the burden of proof, that a defendant has the right to see and to confront the witnesses and the evidence presented against them, and that, with very few exceptions, the guilty are convicted and the innocent are set free. But anyone who works in the courts knows that this is not true for a number of reasons. The deck is stacked in favor of the prosecution. Here are some of the reasons this is so, and some of the ways basic fairness and due process protections have been eroded in criminal court, and especially in sex abuse cases.
The Mondale Act of 1974 (Child Abuse Prevention and Treatment Act (CAPTA)) was a well-intentioned law that provided federal monies for the investigation and prosecution of child abuse. However, it provided no monies for the defense of those charged of these crimes, a monetary incentive to prosecute any allegation, and civil and criminal penalties for professionals who failed to report even the most unlikely allegations of abuse. It also created a political/legal environment in which there are virtually no (enforced) consequences for the vast majority of people who maliciously make repeated false reports of child abuse, either for revenge against a hated ex, or, most commonly, as a way of gaining advantage in a child custody dispute. It was the perfect recipe for abuse of the legal system to serve private ends—which is what it has become.
This legislation was also seen by extremists in the feminist movement as a way to gain political power by promoting the narrative that women and children are perpetual victims of adult males and needed government protection. This group also promotes the view that women and children never lie or coach their children to make false reports; that anyone who says she is a victim should be assumed to be telling the truth, and that sex between an intoxicated male and an intoxicated female constitutes rape of the female. Some of these people are lawmakers, who, as we have explored in previous writings, express open contempt for any process that does not confirm every allegation made by a woman against a man, regardless of the evidence to the contrary. For these fanatics there is no evidence sufficient to prove the negative.
Criminal and civil (family court) investigations into allegations of child sexual abuse are also perverted in the following ways: Forensic interviews are poorly done—they are the products of minimally educated (usually bachelor’s level) mental health professionals and are typically slanted in favor of the prosecution. Interviewers are supposed to be independent scientists, but they see themselves as part of the prosecution team, which is evident by the way they typically lead children to confirm abuse, sometimes literally putting words in the child’s mouth, sometimes suggesting answers with short yes or no, either/or questions, and rarely asking for a narrative or allowing sufficient silence for one to be provided.
Michigan’s Forensic Interviewing Protocol (which follows the research, and standards of which are national and international) for example, makes 23 references to the exploration of alternative hypotheses, but I have reviewed dozens of these interviews and have yet to see one in which there was a serious effort to explore any possibility other than that the child has been abused. The research shows that investigations including a single hypothesis will inevitably concluded that this hypothesis is correct through what is known as confirmation (or confirmatory) bias .
This is particularly significant because the rules are that expert witnesses for the defense cannot offer an opinion regarding the child’s truthfulness or the question of whether the event happened, but the state’s expert, the forensic interviewer, has already offered her opinion on the matter in the form of a recommendation to proceed with a prosecution. Often, her reasons for doing so are suppressed by the court by disallowing testimony regarding the forensic protocol or any statements the child has made prior to trial. Therefore, the jury has no reason to question whether there was sufficient cause to bring the case to trial. Moreover, regardless of how poor the evidence is, no judge is going to stop one of these cases from going forward at the preliminary hearing, though it is at this juncture that a decision about the reliability of the evidence should be made. ,
In effect, the inability of the defense to question the methods of the forensic interviewer is the introduction of secret evidence into a trial, which in many cases should have been stopped at preliminary stage because of unreliable evidence, but was not because either the science wasn’t challenged or, more likely, the politics of these cases requires them all to go to trial. No judge wants to appear soft on crime, especially crimes against children. However, the inability or unwillingness of the courts to stop a case from being prosecuted on bad evidence means that we are daily repeating the mistakes of the day care hysteria era 30 years ago.
At that time, people were being prosecuted with bad evidence generated by therapists who had no skills, training or expertise in conducting investigations, and who had an inherent conflict of interest between objective forensic investigator and their perceived role as child advocate. Now, we have mental health professionals who have some training, but who are so anxious to provide useful evidence to the prosecutor their objectivity is compromised. Either way, the jury of laymen gets biased, supposedly scientific evidence, and the jury members have no skills or expertise in discerning between what constitutes valid or invalid science.
One thing the State of NJ v. Margaret Kelly Michaels’ case should have done for anyone reading the trial transcripts or their reproduction in the Ceci and Bruch book, “Jeopardy in the Courtroom” (1995), is to make it abundantly clear that a lay jury has little or no ability to differentiate the value of a child’s testimony, no matter how outrageous. All the jury is going to hear is the child say it happened. With teens this is somewhat easier to challenge because adults expect them to be able to tell a coherent story and if they can’t, the jury may conclude the child is lying.
Where younger children are concerned, this reality check goes out the window. The mixture of fantasy, suggestion and what the child now believes he remembers is actually more believable to a jury than a lying teenager. Without being able to show how the child’s story morphed over time as the result of suggestion, the defense is essentially being denied the ability to put on a case. The Michaels appellate and Supreme Courts found that how the statements were obtained went to their reliability and hence, their admissibility in court. , They also found that the children’s stories became so distorted by suggestive interviews that the truth could no longer be discerned.
Withholding or suppression of exculpatory evidence is common in these cases, including inconsistencies in the child’s previous statements that differ from those statements made by the child on the stand. This practice prevents the defense being able to demonstrate evidence of a pattern of false allegations made by the alleged victim, and/or (more frequently) by the child’s parent or guardian, and possible motives to make false allegations, including in some cases, obvious motivation for revenge.
It is difficult to get an accurate transcript of the child’s forensic interview and more difficult to get a videotape, which is the best evidence and is universally agreed upon as best practice. Prosecutors routinely deny this evidence to the defense, or make them subpoena it, indicating that they are afraid that the evidence will not withstand the light of close scrutiny. Their motive should be protecting the public, but they understand that these prosecutions, like those for domestic violence and any conflict between a man and a woman, are political, and that the politics is on the side of the accuser. The typical prosecutor is a combination crusader and opportunist, who sees his or her own needs as essentially virtuous and has no trouble seeing any who oppose them as representing the forces of evil.
There is a never ending stream of 24/7 propaganda about mistreatment of women and children by men from both liberal and conservative media, and also from feminist organizations like NOW and it’s various affiliates, so called child advocacy groups, cop programs, Law and Order, and Law and Order Special Victims Unit programs. In fact, the only thing the left and the right agree on is that everyone but them is a criminal. In his book, “Just Mercy,” Bryan Stevenson notes that we have gone from 300,000 people in our prisons in the early 1970s to 2.3 million today, with an additional six million people on probation or parole. According to FBI, one in every three Americans has been arrested for a criminal offense.
Both government funds for prosecution of specific crimes, and prison for profit encourage prosecutors to disregard the presumed innocence of people they prosecute and the disproportionate affect that these prosecutions have on young black men. The “school to prison pipeline” is one concern expressed by the black community that seems valid, but the most unfortunate aspect of it is that the people they have chosen to ally themselves with will pay only lip service (and perhaps welfare payments to mothers) to their concerns. The real beneficiaries of the over criminalization and over prosecution of men of all colors are privileged white women, who are also the ones most attracted to prosecuting what they never shrilly tire of calling a “rape culture” that systematically targets women and children.
Sanity is out the window when it comes to what a child says in a child sexual abuse case; even the most stupid, bizarre, and improbable allegations of abuse are taken seriously. Kelly Michaels was alleged to have made children lick peanut butter off her genitals and she theirs, and penetrated them with a variety of objects; albeit with no physical evidence of damage or discovery by other teachers or parents. The entire hysteria began by a child telling a doctor that Kelly “did that” while the doctor was taking her temperature with a rectal thermometer. Whether the child was referring to having her temperature taken or having her back rubbed by the doctor was never clarified.
The physician followed the Mondale law by reporting innocent behavior as abuse, and crusading therapists did the rest. Allegations in the Little Rascals daycare case included ritual sacrifices and trips in a hot air balloon , but the improbability of these lunacies, coerced by that most dangerous of all psychopaths, the crusader, did not keep the cases from being prosecuted or the juries from convicting. The most frightening thing about the entire process is the ease with which otherwise intelligent (They did get through graduate school.) people can dupe themselves into seeing evil where there is none.
But the child abuse industry is a lethal mix of idealists and opportunists, idealistic opportunists, and the most vicious narcissists on the planet. False accusers are extremely cynical; anyone who wants to make a false allegation knows that it will be taken seriously, all they have to do is feed the child a few bits of information and the prosecutors, police and forensic interviewers will fill in the rest. Moreover, they know there is slim to no chance that they will ever experience any consequences for making, or coaching a child to make a false allegation.
By the time it gets to court it will be a credible narrative, and if it isn’t, the jury will buy it anyway. Why would the kid say it if it wasn’t true?
Why indeed! The kind of pressure put on these kids by the well-meaning is substantial; that applied by the evil is more than most children can resist. Still, never underestimate the power of denial when the truth goes against the prevailing narrative. I had a brief conversation with a judge at a bar meeting to which I was invited, in which the judge told me that he had read there was no such thing as parental alienation. I wanted to ask him what planet had elected him to the family court bench, but I didn’t want to be rude to the inhabitants of a plant that I knew nothing about.
I also once gave a presentation to family court lawyers and Mental Health Professionals with family court Judge Bill Callahan of the 3rd Circuit in Wayne County Michigan on abuse allegations in family court. I asked the mental health professionals at the conference to tell me what percentage of people lie in family court proceedings, but first I asked the lawyers to be silent. Their guesses ranged between 50-75%. Then I asked the lawyers to tell the MHPs the truth. The answer, of course, is that everyone lies in divorce/custody proceedings. The only difference is to what extent they are willing to go to lobby their children and discredit their soon to be ex. Some tell small lies, and some fire off the ICBM with a nuclear warhead—the false allegation of sexual abuse.
When they lob the nuke, there are a lot of folks in the law enforcement community who desperately want the allegation to be true. Cops and prosecutors want convictions, and they love these cases because they know it’s an easy way to get a conviction without a shred of evidence. Moreover, police are allowed to do forensic interviews despite their inevitable bias. Their experience of interviewing criminal suspects has provided them with tactics at the other end of the interviewing experience from what a forensic scientist should have. The rules for interrogating a suspect in an armed robbery case allow trickery, coercion, and lying to the suspect to get a confession, which is bad enough when used against an adult, but when the same tactics are used against a child to coerce an allegation as they were in the Watters case, the results are anything but reliable.
Still, they got the kid to say the abuse happened, it doesn’t matter how. Once Judge Linda Parker ruled that the defendant could not present any testimony regarding how the evidence was obtained, Watters’ fate was sealed. He lost the second trial and at the Court of Appeals, and the Michigan Supreme Court refused to hear the case. He will die in prison. Hell hath no fury like a woman scorned, and especially now that they are armed with the judicial system and a nuclear option.
Pretrial screening is a joke—Even if the child’s allegations are completely absurd, just the fact that she makes it means it will get to trial, and the fact that it gets to trial means the jury will assume it is probably true.
It is interesting to me that when one of their own was caught up in a politically charged case, the killing of black thug Michael Brown by Officer Darrin Wilson in Ferguson MO, the prosecutor elected to take a safe route. The evidence in that case clearly showed that Wilson had been the victim of an attempted Murder by Michael Brown, who tried to take his gun away and undoubtedly would have killed him with it if he had succeeded. But Wilson won the battle for the gun with the larger man, and then had the presence of mind and fortitude to chase Brown down and kill him when he charged rather than surrender.
The propaganda still being perpetuated by Black Lives Matter was and is that Brown was shot while trying to surrender with his hands up. Rather than risk the possibility that Wilson could be convicted by a jury who would seek to impose a political interpretation on a legal killing, the prosecutor chose to try the case before the grand jury rather than dismiss the charges outright or seek an indictment. The grand jury’s failure to indict was essentially an acquittal that touched off a riot by those who would never accept this outcome. However, it did offer some degree of protection from the political climate and the anger Wilson was facing for doing his job.
Lay persons have no such protections in sex abuse cases, and even decorated police officer Grant Snowden was swept up in the hysteria surrounding allegations of abuse by innocent people at day care centers. Snowden was prosecuted twice because there is no penalty for making repeated allegations of abuse if the first one does not produce the desired outcome, and he wound up doing 12 years in prison before his case was overturned on appeal.
Defense lawyers must be skilled in these cases. Hiring an expert is well and good, but the expert’s value in such a case is limited by the fact that he cannot give an opinion about the child’s credibility or whether the incident happened. He or she is essentially limited to opining about the manner in which the evidence was gathered. In one case I was allowed to discuss the interviewer’s questions, but not the child’s answers. It is hard to discuss alternative hypotheses without addressing the answers that may suggest those hypotheses.
Many lawyers don’t know the medical and social science behind the evidence in these cases and don’t care to learn. They think they can try them like any other case and they can’t. If your lawyer does understand the science, you are beaten before the trial starts. It is up to him or her to convince the jury that the child’s statements do not constitute a freely given narrative constructed by the child, but rather: a) they represent the repetition of coached responses, b) that the child’s statements are not consistent from interview to interview, and/or, c) that the child lacks the knowledge one would have if they had truly had a sexual experience. Defense counsel will be given considerably more latitude than his or her expert to explore these matters than the expert, especially in opening and closing remarks, though the expert will undoubtedly be helpful in pointing out inconsistencies that counsel may wish to explore in those remarks.
Defense counsel must also be skilled in questioning and impeaching a child’s testimony in a manner which is effective, yet delicate. Remember that if a young child is being untruthful, it is more likely than not the child has been coached or led by others—deliberately or inadvertently—to make the allegation, which by the time of trial may have been internalized as a truth. Being coerced to lie is a terrible ordeal for a child, and one that the defense must be sensitive to or risk winning the battle but losing the war.
An excellent paper on this subject states: “For the cross-examiner, a key area of pretrial investigation focuses on the possibility that a child has been subjected to improper suggestion. The longer the delay between an event and a child's statements describing it, the greater the likelihood that improper suggestion would be effective. Who interviewed the child? A parent with an axe to grind? A police officer who believes in a presumption of guilt? A mental health professional who shares that presumption and uses suggestive interview techniques to ‘help the child reveal the awful truth?’ What type of questions were employed during the interview? Were they leading and suggestive, or were they nonleading? Was the interviewer a trusted authority figure? These and other questions are vitally important to the cross-examiner seeking to discover the improper use of suggestion.”
Counsel can’t beat up on a kid in cross examination without incurring the jury’s wrath, but that is not to say he cannot point out inconsistencies in the child’s testimony. “A child's testimony may be influenced by bias or interest. It is proper to impeach a child witness with evidence of bias for or against a party, or with proof that the child is interested in the outcome of litigation. With child witnesses bias and interest take many forms. The love and loyalty between parent and child may color testimony. A child may harbor dislike or hatred of a party. Fear engendered by or against a party may slant a child's testimony. A child's self-interest in the outcome of a case (e.g., child custody litigation) can have a powerful influence on what the child says on the stand. There are as many emotional and situational factors influencing testimony as there are witnesses. Courts generally approve broad inquiry into bias or interest.”
Suppression of exculpatory evidence is common, and takes many forms. Prosecutors frequently resist giving defense counsel copies of the forensic interview and/or transcript, and in some cases they do not even have accurate copies of these documents, though protocol states this is best practice and Michigan Protocol is law for state employees. If the law has been violated, how can you prove that without seeing the work done in accordance with that law?
Without an accurate record it is virtually impossible to discern what was said at either the initial disclosure the child made to a parent, teacher or social worker, or in the forensic interview, and this is the best evidence of the truth or fallacy of the allegation. Also, inconsistent statements made over several interviews, including the preliminary hearing, are relevant, as is the motivation of the accuser (usually he child’s guardian) to falsify. Judges are elected in this state and are not immune from political persuasion. They understand that the feminists elected them and will campaign to get them out if they don’t rule in their favor.
Many agree with the feminist party line. Dr. Labeed Nouri was wrongfully convicted of raping an employee and spent three years in prison before the woman’s boyfriend admitted to the plot and wore a wire to prove it. But before Oakland County Prosecutor Cooper would let him out of prison she made him plead to a misdemeanor, insuring that he would continue to have a criminal record on top of the injustice he had already experienced. She never prosecuted the accuser for perjury or the conspiracy to extort money by suing Dr. Nouri after the accuser and her boyfriend obtained a conviction through a false allegation (a four year felony ). Then she bragged that she moved “heaven and earth” to get him released.
Disallowing exculpatory evidence is equivalent to throwing out a murder’s confession and allowing only what the defendant says at trial into evidence, except that the defendant is supposed to be presumed innocent. If the court won’t let your expert speak to the issue, defense counsel must find a way to address these inconsistencies. The child’s story will be honed by the time of trial and all the blanks will be filled in. Children are groomed by prosecutors and police. The child’s story is built over time from something totally improbable at the first telling, to something credible by the time of the trial. Forensic literature shows that the first free narrative of the child is the best evidence and the jury rarely sees or hears it, or testimony about it. But it is the basis for the charge, and the defense should have a chance to contest it.
Rape shield laws make it impossible to question the behavior patterns of the alleged victim, but “prior bad acts” legislation allows the prosecution to bring in behavior that is really not relevant to the case being tried. The National District Attorneys Association published a document on Prosecuting cases of sexual assault involving alcohol, which says, among other things, that half to three quarters of sexual assaults are alcohol facilitated, but that half of those assaulted don’t initially consider themselves victims; they have to be convinced that they were too drunk to give consent.
The author admits that there is no specific level of intoxication that constitutes too drunk to consent, but that it is still a viable grounds for prosecution, and that, while intoxication on the “victim’s” part excuses her behavior, intoxication on the part of the “rapist” is not a defense. In such a case, “The primary challenge in prosecuting rape cases where the victim is voluntarily intoxicated is that society tends to have difficulty distinguishing between drunken sex and rape…Prosecutors must overcome the tendency to focus on and blame the victim and re-direct the focus back to the offender’s actions, and thus on the elements of the crime. It is the prosecutor’s job to show jurors why the case before them is a case of sexual assault and not just drunken sex that was later regretted (P. 8).”
What makes the prosecutor’s task easier is that, “Most states do not recognize voluntary intoxication as a defense…[but] it may be a barrier to prosecution. Prosecutors can overcome the hurdle of the intoxication defense by looking for the defendant’s predatory behavior. The prosecutor must look carefully at all the facts of the case to determine whether the defendant is a predator or just a drunk guy who did not intentionally rape anyone. Often, a successful predator will mask his actions in such a way that they appear opportunistic as opposed to predatory. The more predatory the defendant’s behavior, the easier it is to prove that he is a rapist.”
So drunkenness is an excuse for a woman’s regrettable behavior, and she should still be sympathized with as the victim, but the same degree of intoxication does not make a man any less of a predatory criminal, even when the story constructed days or weeks later is by that time mostly “he said, she said,” and not provable to anyone who didn’t have a predisposition to believe what is criminal for men is victimhood for women.
And this is dealing with adults, who some jurors and judges may still believe are equally responsible for their own behavior. When it comes to a child, everybody presumes the defendant is guilty. For the defense to expect a presumption of innocence is to underestimate the impact of the propaganda, and everyone’s fear that his or her own child could be victimized by friend or foe. Forget a presumption of innocence; the defendant will be presumed guilty until proven innocent beyond all doubt. This is tough burden to prove, even if the court is kind enough to let you put on a case; and, again, the only way you can do this is to analyze the science.
The accuser and the state have an unlimited budget of your money to prosecute these cases, thanks to the Mondale act, but the defendant is spending his own money and it is costly (again, presuming the state will let the defense put on a case). If the defendant is represented by a court appointed attorney, they will lack the time and resources to match what the state can do. When I take these cases, my experience has been that I never get paid for anything close to what the case requires in terms of time to go through the material and do a preliminary report, and that is without scheduling time to go over the evidence with the attorney, or preparing for and giving testimony. I do them despite the stress of the case and what they pay, not for the money.
There is still a ton of “believe the child” propaganda out there that has nothing to do with how the evidence was obtained, and numbers that people pull out of thin air regarding what percentage of these allegations are false. The predisposition to presume guilt and the near impossibility of disproving that presumption are the chief ways in which these cases resemble a witch hunt.
Someone posted an anonymous article online a while back regarding the allegations about Woody Allen allegedly molesting Dylan Farrow. The writer—who states that he or she is not offering an opinion about the guilt or innocence of Mr. Allen—also stated that he or she was a lawyer (presumably a prosecutor) who handled such cases. He or she basically tried to make the case that, “Just because you can’t prove it, doesn’t mean it didn’t happen,” and concluded with, “The Dylan Farrow-Woody Allen case is but emblematic of a greater tragedy that has been unfolding for years. Children can be telling the truth, but the law does not always protect it.”
In my experience, this is simply not true. No matter how bad the evidence, the prosecution will proceed to trial because they know the defacto burden is on the defense. This is the psychological predisposition of all involved, regardless of what the law says, and it is increasingly the way in which laws are created and judicial discretion is exercised. Prosecutors have all the power in these cases; they decide which cases to bring based on their own preconceived biases. In adult cases “he said, she said” evidence is proof beyond a reasonable doubt. In cases involving children, it doesn’t even have to make sense, just the fact that the child makes the allegation is enough in most cases to put you away for life with no chance of having a life if you ever do get out.
This is the world we live in; one of extreme over criminalization, prison for profit, and over prosecution of petty crime (underage drinking?) as the primary means of fleecing citizens and supporting bloated bureaucracies. Maybe it is the result of critical mass—everything expands until it collapses under its own weight. Too many people going to college and becoming lawyers until the sheer number of them become the tail that wags the dog, then the wolf that devours itself. “Tough on crime” is sure to get you elected, but then you have to build more prisons, then you have to fill the prisons.
Miranda warnings mean nothing, they only have to be given now after the police have acquired enough evidence to convict the defendant. You might get a trial if you can afford to mount a defense after police take your money and possessions through a process of state sponsored theft called civil forfeiture; as blatant a violation of the 14th amendment ever devised. You can try to get parenting time after they throw you out of your home with an ex-parte order. Crusaders are vicious; no one is crueler than he who is in undisputed possession of the only truth. The police and prosecutors are a combination of opportunists and crusaders who will continue to believe that they are right despite any evidence to the contrary.
And the bewildered defendant is blindsided. He expects fairness and sanity from the system and tries to cooperate with investigators. Investigators will remember anything inculpatory and forget anything exculpatory. They have forgotten that their primary purpose is to protect the public; they are sure they have a license to exploit anyone they chose. “Absolute power corrupts absolutely.” But this is an invisible war, one in which the victims are not seen by any but those who are immediately affected. So it goes on day after day, year after year, along with the steady erosion of civil liberties and due process rights, until the deck of cards we call a free society collapses, with everyone asking, “How did it happen?”
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in
