By David Cmelik
Every poor policy craves a bogeyman. The unsuccessful War on Drugs, siphoning billions of dollars from education, infrastructure, and rehabilitation, is (hopefully) taking its last breaths. California, Washington, and Colorado have decriminalized marijuana in some way or fashion. Legislative proposals in Iowa will no doubt again be advanced in 2014 to allow doctors to issue medical marijuana prescriptions and to decriminalize small amounts of marijuana– though their outcomes are still in question. Now that a thinking citizenry is rejecting the outrageous gateway premise for the 70+ year old propaganda film, Reefer Madness, (http://en.wikipedia.org/wiki/Reefer_Madness), entire states are rolling their eyes at law enforcement who are looking for new and profitable ways to justify burgeoning budgets, buy new gadgets (don’t forget bullet proof vests for drug dogs) and build prisons. For those falsely accused of child sex abuse, the new bogeyman is very real. So-called forensic task forces are sifting through terabytes of data to see if Daddy has been downloading child pornography. Meanwhile, reasonable commentators and jurists are suggesting the federal sentencing guidelines advising federal judges on the appropriate sentences for mere possessors are neither empirically based nor rooted in the federal sentencing commission’s traditional role and national experience. A well-respected federal defender and former JAG attorney, Troy Stabenow, has weighed in in at least two such articles on the subject as well as judges in the Second Circuit in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). Added to our natural revulsion to child sex crimes is human nature regarding the innocence of children: well intentioned adults are eager to believe children and teenagers, even those whose mental health and behavioral problems put their veracity in question. Investigators should be scrutinizing this evidence no less rigorously than they do other accusations from questionable witnesses.
Some law enforcement agencies, however, are outsourcing their investigative obligation to hospitals and child advocacy centers where forensic interviewers send mixed messages to children– at first telling them that they can say anything during the interview without fear of punishment and then advising them to tell the truth. The flawed premise to this standard operating procedure assumes, without first conclusively determining if actual abuse occurred, that the child witness needs to be cajoled into telling his or her story because an abuser told children they will be punished if they tell anyone. At the outset, this assumes the interviewer must “undo” trauma they have concluded has already been done to silence the child.
One thing is certainly clear from this revelation. Without proper law enforcement training, forensic interviewers become advocates, not investigators, and confuse a nurturing role with an investigation necessary to distinguish fact from fiction. Even doctors employed in such child advocacy centers hired to probe children for signs of abuse and gather evidence against their would-be abusers are part of a crime-investigation team. They’re not treating physicians but forensic gatherers with an agenda to “find abuse” to corroborate the allegation. During trial testimony, they explain away the lack of physical evidence yet point to it whenever they can do so. Fire breathing advocates in this industry reject the notion a child could falsely allege abuse. They see themselves as the protagonists in a mythical play of good and evil. Save the children– because they can’t be lying. In short, they’re ideologues and they pose a danger to the truth seeking purpose of the jury system. Opposition to the child advocacy industry is difficult to find, except among the defense bar and those who have been ensnared by it unfairly. Afterall, how can you be “against” saving the children? Well, you just can’t. Defense lawyers find themselves at high school civics presentations justifying their role in the aggregate– by stating that even the guilty deserve a good defense because the erosion of justice begins with the least popular among us. It’s never popular to suggest that there is some chance a child might just be lying to evict a parent or step-parent from the home. There is surely an unspoken school of thought in the hysterical push for more and more laws, law enforcement resources, and punishment for child abuse– including Draconian registry and living restrictions even some prosecutors oppose- that a small number of false accusations is a small price to pay to catch more sex offenders. To the falsely accused, this is not an acceptable cost. They are the collateral damage in this war prosecuted in the name of children. A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending information to an attorney over the Internet.
Copyright David A. Cmelik Law PLC. All rights reserved.