Allegations of child sex abuse are extremely common. Although accurate statistics are difficult to find, during jury selection in child sex abuse cases it is not uncommon to find 20-25% of the prospective jurors admit to having been personally impacted by an incident of child sexual abuse in their own life. Unfortunately, because these cases are usually based in large part on the word of a child, sometimes even a very young child, it is the type of crime of which one stands the most chance of being false accused. Moreover, many times these allegations arise out of contentious divorce cases where children are manipulated by one of the parents.
The vast majority of child sex abuse cases take on a similar pattern. To understand how to defend a child sex abuse case, one must first understand these common patterns. Criminal defense attorneys, prosecutors, psychologists, and law enforcement officers who investigate these cases have developed a special vocabulary to describe them.
Most cases begin when a child makes an “outcry.” In other words, the child accuses some adult of engaging in inappropriate sexual activity with the child. More often than not, that outcry is described as “historical.” That means the outcry refers to alleged inappropriate activity that occurred months, years, or even decades in the past.
If the child makes an outcry to a professional such as a teacher, psychologist, member of the clergy or even a lawyer, those professionals have a legal obligation to report that outcry to the police. When the police are informed of an outcry, the police investigator will try to ascertain if the child’s outcry describes an offense. The police investigator usually will not attempt to get a detailed statement from the child.
If the investigator thinks the inappropriate conduct the child is describing constitutes an offense, the child almost always will be taken to a Children’s Advocacy Center to be interviewed. These advocacy centers are staffed by people trained to interview the child on video in a non-suggestive manner. During the interview the child advocate first develops rapport with the child, and then eventually begins to ask the child about whether anything inappropriate happened with open-ended questions.
Often children describe behavior that the state will claim was “grooming behavior.” What psychologists have learned by examining thousands of cases is that the vast majority of time child sex abuse involves someone who is well known to the child, such as a family member or close friend of the family. Thus many times the “grooming behavior” is behavior that could also be behavior you would expect somebody close to the child to engage in such as taking an interest in the child’s activity, buying presents for the child or taking the child to a baseball game or amusement park.
One of the most prevailing myths in child sex abuse cases is that sexual activity with a child will yield physical evidence that such abuse took place. Numerous studies exist, however, that even in child abuse cases involving penetration, an examination of the child’s labia, vagina and hymen show it to be perfectly normal. In the majority of child sex abuse cases there is no physical evidence to confirm whether a child has been sexually abused or not. Even in the unusual case where there is evidence of scarring, the scarring may result from activity other than sexual activity.
If a child makes an accusation of inappropriate sexual contact with an adult, that adult needs to immediately hire a criminal defense attorney with extensive experience handling these kinds of cases. One false step by the accused in the initial stages of the case could be disastrous for the defendant.
People accused of these offenses often mistakenly believed that they will not be charged with an offense because there is no evidence corroborating the child’s outcry. Unfortunately, this is not true, the Texas prisons are full of people who were convicted on the basis of the uncorroborated allegations of a child.
An innocent person falsely accuses may simply not know why they child is making the accusation and needs a skilled criminal defense lawyer to examine all the evidence and conduct an investigation before deciding on how the case should be defended.
Usually, the defendant in these cases learns of the accusation before being formally charged or indicted by a grand jury. During this period of time the defense generally does not have the ability to examine the State’s evidence or watch the video-recorded interview of the child made at the Child Advocacy Center. In other words, a good defense attorney, having little access to the State’s evidence may be hesitant to commit to a specific defense in the in the pre-indictment stage of the case.
Nevertheless, in some cases, the defense will attempt to prevent the client from being indicted by submitting a “grand jury packet.” The defense is not entitled to present witnesses or evidence in the grand jury proceeding. In many Texas counties, however, the prosecutors are willing to provide to the grand jury a letter drafted by the defense when deciding whether to return an indictment against the defendant. One must be cautious, however, before taking this step. The grand jurors do not decide a defendant’s ultimate guilt or innocence, but simply whether there is enough evidence to warrant the case going forward. Often the grand jury will think that favorable facts contained in the letter should be considered by the jury that will ultimately decide the defendant’s guilt or innocence. One downside to presenting a letter is that the State will then know of facts favorable to the defense and how the defense plans to defend the case. The letter can even be used, in some cases, to impeach a testifying defendant.
Sometimes defense counsel and the defendant make a decision to have the defendant submit to a polygraph examination or “lie-detector” test. If the defendant passes this test, prosecutors in some counties will permit the inclusion of this passed result with a grand jury letter. Most grand juries are impressed by a passed polygraph examination if the relevant test question conforms to the details of the accusation and the polygraph was conducted by a reputable polygraph examiner
Polygraph examinations, however, are not admissible in a jury trial. A properly administered test is said to inaccurately indicate that a defendant is lying roughly 15% of the time, and inaccurately indicate that the defendant is telling the truth, about 5% of the time. Suspects who engage in various efforts to defeat the test usually cause the test to be “inconclusive.” Other than to a demoralizing effect of a dishonest result in a polygraph examination, and the cost (usually about $1,000), there is little downside to taking such a test.
At Broden & Mickelsen we have had cases no-billed by the grand jury or dismissed by prosecutors after we presented a favorable polygraph. We use a polygrapher with a national reputation and his polygraphs normally carry a great deal of weight.
There are various offenses that might be charged when there is an allegation of child sex abuse. “Indecency with a child by contact” means engaging in “sexual contact” with someone younger than 17. Sexual contact is defined as touching breast, genitals or anus for the purpose of sexual gratification. Exposure of one’s genitals or anus or that of a child, for the purpose of sexual gratification, also constitutes the offense of “indecency with a child.”
“Sexual assault of a child” involves intentional penetration of the child’s sexual organ, anus or mouth, or causing the child’s mouth to come into contact with the accused’s sexual organ, anus or mouth. If the child is less than 14 years old, then the offense is “aggravated” sexual assault of a child.
It is important to note that the State never has to prove the defendant knew the age of the child was. In other words, if a man meets an age appropriate appearing person at a bar or online, takes her home and has sex with her, and then later learns his date was only 16 years old, he has committed the offense of sexual assault of a child regardless of whether he thought she was 18 years old.
There is the also the offense of “continuous sexual abuse of a child.” This offense requires the State to prove there were two or more acts of sexual abuse against the same child more than 30 days apart. Notably the jury does not have to agree on what those two acts were, just that two acts occurred.
In Texas, a defendant has a right to elect whether the jury or the judge will decide punishment if the defendant is convicted. However, the rules concerning probation eligibility (or a non-custodial sentence) differ.
A jury may only sentence a defendant to probation if the defendant has never been convicted of a prior felony in any state. Then, if the jury decides to impose a sentence of 10 years or less, the jury can “probate” the sentence so that as long as the defendant complies with all the conditions of “community supervision,” the defendant will not have to go to prison. The jury may not probate the sentence if the child was younger than 14 or the defendant was convicted on continual sexual abuse of a child.
If the jury is imposing a prison sentence, it may sentence a defendant from 2-20 years for an indecency conviction or sexual performance of a child conviction (5-99 if the child is under 14); 5-99 for a sexual assault conviction; and 25-life if the child was under six years old or for a continuous sexual abuse conviction.
Following a conviction at trial, a judge may not impose a probation sentence for a defendant convicted of sex offenses against a child except for indecency with a child that did not involve sexual contact.
Nevertheless, a judge has a unique power that the jury does not have in cases where the defendant has pleaded guilty. In these cases, if the defendant has never been sentenced to some form of probation previously, the judge may “defer” finding the defendant guilty and place the defendant on community supervision. If the defendant successfully completes the community supervision, (usually a term of 10-years), the defendant will have no final conviction (but will nevertheless have to register as a sex offender). The judge may not do this, however, if the guilty plea is for continuous sexual abuse of a child; if the victim was younger than six, or younger than 14 if there was violence.
As one can see, the potential sentences for these offenses are extremely severe. Experience shows that often first-time offenders, upon conviction, receive sentences of decades or even life in prison. If someone is accused of one of these offenses it is imperative to hire a highly skilled criminal defense attorney who is experienced in these cases.
Finally, one should be aware that all of these offenses require being registered as a sex offender if convicted. This is required by law and not subject to negotiation. Obviously, sex offender registration is an enormous life handicap from job applications, living arrangements, personal relationships, etc.
Most often the State and the Defense each have one glaring weakness in their respective cases. The State’s weakness is that it has to prove a case beyond a reasonable doubt, and usually it must do so solely relying on the uncorroborated allegation of a child. The Defense’s weakness in some cases is the lack of a convincing explanation as to why the child would falsely accuse the defendant of sex .
As a matter of law, the burden of proof never shifts to the defendant. Nevertheless, as a practical matter, when the defense attempts to provide the jury with an explanation for the false allegation, it must be careful. If that explanation falls apart once subjected to the trial process, then the danger exists that the jury will conclude that, because the defendant’s theory failed to hold water, the defendant is guilty.
It is imperative, therefore, to do everything one can to move the needle in advance of trial. If a credible explanation as to why the child would falsely accuse the defendant may be asserted, then the defense must do everything it can, mostly by means of investigation (interviewing all possible witness with a private investigator), to bolster this assertion. At Broden & Mickelsen we will often go with an investigator to interview these witnesses because their testimony can be so crucial.
Sometimes the needle might be moved by the defendant testifying and denying his guilt. The judge will instruct the jury at the beginning and at the end of the trial that it should not consider the fact that a defendant elected not to testify. Although this instruction may mean as that, during deliberations the jury will not openly discuss the fact that a defendant did not testify, it is highly doubtful that jurors are uninfluenced by the defendant’s failure to testify and deny his guilt under oath. Because a jury expects a defendant to deny guilt, especially against such a serious charge as one involving child sex abuse, and the defendant usually only can offer what is essentially a denial, it is the unusual case in which a defendant, by means of his testimony, can move the needle substantially towards a “not guilty” verdict. Because of this, the defense must carefully weigh the downsides of testifying. For example, if the defendant has a prior conviction, or if the defendant testifying will “open the door” to the admission of adverse evidence, the costs may outweigh the benefits.
Private investigation of the background of the complaining witnesses and exploration of all the family dynamics is always necessary. In addition to this investigation and preparing the defense witnesses, (most importantly the defendant himself) to testify, the other things a good attorney may do in terms of trial preparation will vary from case to case. Some cases call for consultation with, and possible retention of, one or more expert witness. We often recommend retaining an expert on memory who may testify concerning the possibility of the danger of false or implanted memory or an expert to explain the phenomenon of false allegations in these cases. These witnesses are normally necessary to counteract expert witnesses called by the state to bolster the child’s testimony. Some cases will call for the issuance of numerous subpoenas (legal documents that require people to produce evidence in their possession). Other cases will require an extensive pretrial motions practice that may pertain to the legality of seized evidence, the admissibility of evidence, or even the legal validity of the indictment, among other things. Most cases will require employing many of these strategies.
Usually the first day of the jury trial is taken up with the process of jury selection. In most cases, the spectator or gallery portion of the courtroom is filled with potential jurors. The judge will give this “panel” of prospective jurors some preliminary instructions and then the State will be permitted to question the jurors for about an hour. After the State questions the prospective jurors, the defense will be given an equal opportunity to question them. Neither side will be permitted to discuss the specific facts of the case and are limited to discussing the law that applies to the case. Usually a great deal of time is expended discussing the State’s burden of proof and related issues.
Typically, there will many more or less outspoken jurors who say something in response to a question that tends to show some bias or favoritism to one side or the other. Each side has ten “preemptive strikes,” so these jurors likely will be struck for any reason (with some limited exceptions) by one side or the other. Some jurors will take issue with the legal principles governing the case, or have some other conflict preventing them from serving as jurors, such as knowing a witness or one of the parties, or have a irreconcilable scheduling conflict, and will be excused by the judge or by agreement reached between the lawyers.
After jury selection, the State will make an opening statement, briefly summarizing the anticipated testimony of its witnesses. The defense then has a right to make a statement. Many defense lawyers decline to give an opening statement. We believe, however, that the defense should make an opening statement except in very rare cases where there is compelling reason not to do so. We believe it is important to inform the jury as early as possible as to what exactly the defendant’s answer to the accusation is.
After opening statement, the State will put on its witnesses. Usually the State begins with the person to whom the child made the outcry. Then the State often calls the child witness herself. Although it is legally possible for the child not to testify and rely on the outcry testimony alone, this is rarely done. Most prosecutors believe that in order to convict a defendant they need the child has to go on the stand and explain the accusation to the jury.
Many defense lawyers believe that they must destroy the credibility of the child witness to win the case. In our experience, this is not necessarily the case, and aggressive efforts to destroy the credibility of the child witness may fail. As in the case of putting forth a flimsy explanation for a false accusation, an aggressive attack of the child witness, if not successful, may suggest to the jury that, because the attempted attack on the witness did not succeed, the defendant must be guilty. While every case is different, even if an aggressive attack on the credibility of the child witness is ill-advised, the child witnesses can often be effectively cross-examined by eliciting every favorable fact from them, or by more subtly suggesting problems with the reliability of the child’s testimony. There are other cases that call for unique and unusual cross-examination strategies. Of all the skills a criminal defense lawyer should possess, cross-examination is the least subject to generalization. It is often referred to the “art of cross-examination” for this very reason.
In almost every case a witness from the child advocacy center will testify before the State. These expert witnesses did not witness anything of course, and generally are permitted to only testify about things they have commonly experienced in cases of child sex abuse. Still, the State will often use these witnesses to try to unfairly bolster the child’s testimony. The court will permit a State’s expert to tell the jury about patterns in cases involving the sexual abuse of a child and about why a child might wait to make an “outcry” of sexual abuse. These witnesses also may be effectively cross-examined on the points that they that they are not fact witnesses and by getting them to concede that they are not attempting with their testimony to supplant the role of the jury in deciding beyond a reasonable doubt what did or did not happen.
The defense will then have an opportunity to present its case. The defense case might, as noted above, include testimony from a defense expert and/or the defendant. If the defense attorney has done his or her job, it may also include witnesses who could testify the the child is not truthful and has a habit of telling lies. As also discussed above, in many cases, the defense case may also consist of witnesses who can testify as to why the child might be falsely accusing the defendant of sexual abuse. The defense case could also consist of witnesses who were present in the home or location at the time when the child alleges they were sexually abused.
If the jury does convict one of the most difficult things to do is to “shift gears” and effectively advocate during the punishment phase of the trial. It is difficult for a lawyer to credibly go from passionately arguing the innocence of the client to acknowledging the jury verdict’s and arguing for leniency. Moreover, it is difficult for many defendants to discuss this topic in advance of trial. As a result, the punishment phase of the trial is often short, and many defense lawyers put offer little meaningful evidence in this phase of the trial. Still, a skilled defense attorney will prepare for any outcome and may suggest that a sex offender evaluation be done prior to trial to show that the defendant is not a risk to children.
Depending on the circumstances one may be able to call members of the defendant’s family, clergy or close friends as effective witnesses in the punishment phase.
In cases in which a defendant is eligible for a probation from the jury, the defense should usually call a probation officer to testify about the sexual offender programs that are eligible for the defendant. Jurors are often surprised to learn that the sexual offender treatment programs for offenders in Texas are rigorous and the rates of recidivism are low.
There are few greater nightmare situations one can confront then being accused of sexually abusing a child. The stakes are enormous, and an effective defense requires a lawyer of extensive skill and experience.
Clint Broden and Mick Mickelsen are two such highly skilled lawyers who have decades of combined experience in successfully defending clients against these accusations in Dallas, Tarrant, Collin, and Denton counties and others throughout North Texas. In addition, they are both board- certified in criminal trials and in criminal appellate law.