Prosecution and Child Sexual Abuse
Ralph Underwager and Hollida Wakefield*
ABSTRACT: The prosecution system's treatment of child
sexual abuse is examined in terms of the role and behavior of lawyers.
The history of how lawyers emerged in Western civilization is discussed
in terms of the development of targeted prosecutions. Prosecutors are
aggressively promoting the prosecution and conviction of suspected child
abusers, with the result that increasing numbers of people are becoming
convinced that the system is unjust and oppressive.
In America lawyers are ubiquitous. Lawyers are star
characters in plays, movies, novels, and TV series. They are in
boardrooms, committee chambers, courtrooms, neighborhood associations,
protest groups, church conventions, and volunteer organizations. Applications for admission to law school are zooming upward.
over twice as many lawyers per 100,000 people as any other nation and
twice as many prosecutors (Economist, 1987). Most of America's
legislators are lawyers. There is little that goes on in America that is
not influenced by lawyers, their legal advice and opinions, competence
or incompetence, integrity or venality, and relative wisdom or
stupidity. America proudly asserts it is a nation of laws, not
personalities, but the fact is laws are made, interpreted, applied, and
enforced by lawyers. Lawyers are human beings with distinct
personalities. America may actually be a nation of lawyers, not of laws.
In order to understand the way we now deal with
accusations of child sexual abuse, the role and behaviors of lawyers are
crucial. Child abuse and specifically, child sexual abuse, has become a
targeted prosecution. The American Prosecutors Research Institute (APRI), a nonprofit subsidiary of the National
District Attorneys Association, sponsored a symposium on child abuse in
May of 1985. From that meeting came the concept of a national center.
November of 1985, six months later, the Department of Justice's Office
of Juvenile Justice and Delinquency Prevention granted funds for APRI to
set up the National Center for the Prosecution of Child Abuse (APRI,
There have never been any other National Centers for
the targeted prosecution of any other crime. There are other targeted
prosecutions (Finn, 1988), but only child abuse has elicited the
response of funding a National Center to build, organize, lead, and
support a nationwide unitary and aggressive drive to prosecute child
abusers. The mere existence of the National Center for the Prosecution
of Child Abuse indicates that a targeted prosecution effort is directed
against suspected child abusers. This should alert us to be cautious
about the problems sure to come whenever there is a targeted prosecution
To go from conceptualization to funding in six months
is incredible speed for any federal bureaucracy. The idea clearly fit a
need that was judged important by people with enough power to get the
job done expeditiously. This development has meant that lawyers have
become the most crucial and powerful figures in America in determining
the way child abuse accusations are handled. Therefore, to grasp what
is going on in America about child abuse the place to start is with
Our experience with a variety of persons,
professional and lay, from Canada, England, Australia, New Zealand, and
Holland shows that America is exporting the attitudes, system, dogmas,
and procedures that have emerged here to respond to child abuse. George
Nagel, Australia's Sixty Minutes reporter, said Australia is about five
years behind the U.S. in the progression of developing the same
attitudes and system we have here (Nagel, 1986). A reporter from Toronto
said Canada was about four years behind the U.S. (Jones, 1985). A Labor
party member of the English Parliament said the system developing in his
country was modeled after the U.S. (Bell, 1987). A psychiatrist
from Holland came to America to spend a day with us because he wanted to
understand what was going to happen in his country. The likely future
for other countries in responding to sexual abuse of children is present
in what is being done here. For good or ill, citizens in other lands can
improve or correct what their nation does to nurture children's growth
by learning from America. Therefore, knowledge of what lawyers are doing
in America about child sexual abuse is crucial for other countries to
learn from us and build on strengths and avoid errors.
History and Perception of Lawyers
An old saying has it "The Devil makes his
Christmas pie of lawyers' tongues." This reflects a longstanding
public perception that may be related to how lawyers emerged in Western
civilization. People got along without lawyers for several thousand
years. When there was a conflict, people pled their own cause before the
king, a noble, or other fact finder. An example is the custody dispute
between two women before King Solomon (I Kings 3:16-28) where each woman
presents her case for claiming the child and Solomon decides. About the
fifth century B. C., as appears to happen occasionally throughout
history, independent but approximately simultaneous developments took
place in Greece and Israel that resulted in the emergence of lawyers and
lawyering in the western world.
In Greece learned men introduced a new subject called
oratory that trained young men in logic and the art of persuasion. At
first the rhetores, the professors of oratory, taught Athenian
politicians how to make dramatic and effective speeches, about the way
TV media experts coach political candidates today. Soon they were
coaching people in the courts. Aristophanes' play, The Clouds, pictures
their activities. The hero, a somewhat inept con artist deeply in debt,
signs up with a rhetor to learn how to cheat his creditors.
how to be a "lawbook on legs, who can snoop like a beagle, a
double-faced, lethal-tongued legal eagle" (Casson, 1987, p.123).
another play satirizing Athens' court system Aristophanes has an
experienced juryman say:
There isn't a form of flattery they don't pour into a
jury's ear. And some try pleading poverty and giving me hard luck
stories. ... Some crack jokes to get me to laugh and forget I have it in
for them. And, if I prove immune to all these, they'll right away drag
up their babes by the hand. (Casson, 1987, p.123).
A contemporary jury member could use the same
description for what goes on today in front of juries. The courtroom
drama has not changed plot, tactics, or characters in over 2000 years.
The remarkable correspondence between these early examples of lawyering
and today's practice of law suggests that the structure of law applied
to disputes between people may impose powerful roles upon all
participants that determine most of the behavior that actually goes on
in the courtroom. If, indeed, the roles of the practice of law are so
powerful as to produce a common pattern enduring across several thousand
years, we ought to know more about those roles and their effect than we
By the fourth century B. C. a specialty developed,
logographoi who not only coached litigants but wrote and delivered the
speeches. The basic services delivered by lawyers today were provided by
the logographoi who advised on the issues in the case, what court to
use, suggested tactics, and delivered the arguments on behalf of their
When Rome took over the civilized world the
development continued. First came the advocati who advised, assisted,
and spoke in court. By the end of the second century B. C. a
professional lawyer class, causidici (speakers of cases), was in place.
What made stars, the Marvin Belli's, among Roman lawyers was oratory,
the ability to spellbind judge and jury. It mattered not what the merits
were but only that the case was won. Cicero described it this way.
are brought in not to say what we stand by in our own opinions, but what
is called for by the circumstances and the case itself." Tacitus,
the historian, wrote "The most saleable item in the public market
is lawyers' crookedness." A satirist said "What does a man
need to be a lawyer? Cheating, lying, brass, shouting, and
shoving." (Casson, 1987, p. 128).
Then, as now, the public perception of lawyers
included an awareness of the potential for chicanery, double dealing,
and an unbridled cynicism among lawyers. In second century B. C. Rome,
terms like shyster and ambulance chaser were as familiar as they are
now. Contemporary distrust and anxiety about lawyers is foreshadowed by
identical public attitudes at the time the profession of lawyering first
took shape. This suggests it may be the nature of the profession itself
that elicits this persistent perception.
In the fifth century B. C. the Jews who had been in
captivity in Babylon returned to the Promised Land. The temple was
rebuilt from 420-415 B. C. From the post-exilic period onward Jewish
history was essentially centered on their religion. After the return
from Babylon the object of Jewish life was to preserve their unique
religious individuality at all costs while surrounded by powerful and
dominant pagan cultures. The Torah (the written Law) and minhag
(tradition) became the roots of Jewish life and the source of their
differences from the pagans. Scholars subjected the Torah to searching
legal analysis to define its precepts more rigidly and extend their
application to every facet of Jewish life. Massive analysis was given to
words, phrases, precedents, and the logic of inferences from them to
details of living. These efforts resulted in the Halachah, a mainly
legislative body of tradition, that became the religious foundation of
Pharasaism (Guignebert, 1939).
A strong commitment to individual responsibility and
a profound moral earnestness resulted from the zeal for the study of the
Law. This included an intense practical concern for living a good life.
It produced heroic devotion to the Law as shown by the loyal Jews who
stood firm before Antiochus (Bright, undated). An example of Halachah is
the laws of clean and unclean. A baker would know that if a cock hopped
into his oven it would not defile the oven, even if it died there,
because it was a clean bird. However, if it had just gobbled an unclean
insect, the oven was defiled and needed purification. The body of
cock is not a tightly closed vessel capable of containing the
contamination (Stewart, 1961).
The scholars who carried out this work, sopherim
(Scribes), were given great respect and high status. They were the
jurists, canonists, moralists, and casuists of Jewish life. They were
exalted and delighted by their complex minutiae exegized from the Torah.
Every word of the Torah was a visible sign of God's love for His chosen
people. Fulfilling any one of the prescriptions was an act of
gratefulness to God who had deigned to give this divine revealed Law to
Israel (Guignebert, 1939). The Scribes became the lawyers of middle
class Judaism, the Pharisees (Blinzler, 1959). They were involved in
making the laws and the interpretation, application, and enforcement of
By New Testament times the phrase "Scribes and
Pharisees" was emblematic for the established order and the
bureaucracy that dominated Jewish life. The New Testament term
grammateus (Scribe) refers to these lawyers with whom Jesus and his
disciples had frequent conflict. The nature of the conflict with the
Scribes is expressed in Matt. 5:20 - 48. The charges Jesus made against
the Scribes throughout his public discourses included a lack of
humility, selflessness, and sincerity. The most serious charge was that
they did not practice the punctilious morality they imposed upon others.
Further, the accusation was that their attention to minutely detailed behaviors, rigidly
proscribed and demanded, defeated the true will of God for His People (Kittel,
These two distinct historical developments of a
profession developing and practicing law have coalesced in Western
civilization to produce the contemporary system of law and lawyering.
From Greece and Rome comes the relatively amoral, goal-oriented, the
end-justifies-the-means approach that the public still observes; from
this comes the instinctive distrust of lawyers. From Israel comes the
high moralistic value of law as revealed, noble, superseding individual
rights and judgments, pointing the way to a good life, and imposing
demands for conformity and compliance. From this tradition comes the
exquisite attention to words and their meaning and the often labored and
convoluted efforts to demonstrate precedents, technical analysis, and
case law. Lawyers' briefs and judicial rulings most clearly reflect the
approach and practice of the Jewish scribes while courtroom practice may
reflect more the Greek and Roman tradition.
The view of lawyers derived from the tradition of
Jewish scribes includes the perception of the practitioner of the law as
a highly moral, virtuous person justified by nobility of purpose. Wisdom
is accorded to the practitioner of law and increases the public stature
of the profession. Occupying this place in public regard is a powerful
position. This is the heroic picture contemporary Americans like to
believe in but also fear may result in injustice if the power accorded
is used capriciously, for personal interests, and unwisely.
If these two historical strains combine in a legal
system the result can be an almost schizophrenic ambivalence with
lawyers and lawyering held both in high regard and in high disdain and
fear by the public. The combination of opportunistic pragmatism and
moralistic certainty may produce actions believed necessary and just but
which are in fact unjust. This is the risk in all targeted prosecutions.
The American public's anxiety and counter-aggressive response to high
crime rates creates a climate within which targeted prosecutions are not
only acceptable but desired.
The trial of Jesus before the Sanhedrin is an early
historical illustration of a targeted prosecution. The trial and the
outcome were based upon the previous decision by the council in an
earlier meeting that it was necessary to stop Jesus " ... it is
expedient for us that, that one man should die for the people, and that
the whole nation perish not" (John 11:50) (Blinzler, 1959; Schilder,
The principle that extraordinary circumstances at any
given time justify extraordinary measures has a familiar ring in
contemporary American life. The safety of the nation requires that laws be broken and
morality bent into shape. Individuals may be treated unjustly because
national security interests are at stake or personal convictions about
truth are absolute. The behavior justified by this reasoning ranges from
the incarceration of Japanese Americans during WW II, secret
administration of mind altering drugs to individuals, experimental
denial of treatment for gonorrhea to southern Black males, harassment by
Ivy league students of Jensen, Shockley, and Dean Rusk, assassination
of innocent people in bombings, and breaking laws by Colonel North.
The Role of the Prosecutor
The role of the prosecutor in the criminal justice
system is central. The prosecutor is not a member of the legislative
or judicial branches but nevertheless has great lawmaking and judicatory
power. A prosecutor operates independently and autonomously.
prosecutor is usually accountable only to the public which can exercise
some minimal control only through public opinion and, where a prosecutor
is elected, through the ballot box. The public prosecutor has great
latitude, discretion, and power and can make on his own a broad range of
The role of the prosecutor imposes an incredible
intellectual, emotional, and philosophical burden upon holders of the
office (Bailey, 1986). More than any other official of government the
prosecutor is bound to serve two masters — justice and society. Justice is
an abstract concept which, in spite of centuries of philosophical and
legal theorizing, remains an elusive, ill-defined, and poorly understood
ideal. Society is, on the other hand, an ever-present and ever-shifting
power that pulls and pushes the prosecutor to conformity and furtherance
of whatever the present public opinion may be. Only courage of the
highest order empowers a prosecutor to resist any public pressure for
injustice in the interest of preservation of the ideal of justice.
U.S. Supreme Court described the dynamic tension the prosecutor must
endure in this way:
The United States Attorney is the representative not
of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such
he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape nor innocence
suffer. He may prosecute with earnestness and vigor — indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means
to bring about a just one [Berger v. U.S. 78,88(1935)].
To discriminate between hard, fair blows and foul
blows in the intense, demanding daily pressures of the prosecutor's
office is not an easy nor simple job. The prosecutor must deal
continuously with the dark side of our humanity, the evil and weakness
that is inherent in all of us. Day after day mucking about in the
underside of life may have an insidious effect and cynicism may
gradually replace the passion for justice.
Many prosecutors show persistent courage and
dedication to the ideal of justice. They exercise their great powers
responsibly, compassionately, and fairly. A decision by a prosecutor to
enter a nolle prosse on the eve of the trial in a sexual abuse case shows
commitment to justice. The rationale for the choice is contained in a
letter to the defense attorney.
... As you should know, it is the obligation of a
prosecutor to seek justice, not merely to convict. When I
initial investigation in this case, I spoke to the victim who is a very
bright child. She was able to be qualified to testify and was articulate
and forceful in describing the sexual abuse. At that time no one other
than the Defendant had contradicted her statement. ... However, since my
original investigation it has become apparent that attempts have been made
by family members and other persons involved to influence the victim's
testimony, and as a result her credibility is now in question and the
probability of successful prosecution is unlikely. Because of my ethics
and responsibilities as a prosecutor... I feel it is necessary to enter
a nolle prosse in this case .. (Campbell, 1988)
A prosecutor with the convictions and courage to make
what has to be an unpopular decision and not prosecute a sexual abuse
charge fulfills the dual role of serving justice and society. This is a
successful trip across the tightrope. Mr. James Peters, Senior Attorney
at the National Center for the Prosecution of Child Abuse, who
consults, advises, and instructs district attorneys throughout the
country on prosecuting child abuse cases, states:
... When I was a public defender, my boss observed
that one good prosecutor had more power to prevent injustice than ten
public defenders. From my experience with prosecutors across the
country l believe most of them share that attitude and do their best to
fulfill their ethical obligations. ... Unlike our colleagues on the other
side of the bar, prosecutors have an ethical obligation to believe that
everyone we prosecute is guilty and we can prove it beyond reasonable
doubt before we proceed with a case. In that sense, one could argue that
we are the true "public defenders" in the criminal justice
system. ... (Peters, 1988).
Whether Mr. Peters is correct in his belief that most
prosecutors are ethical and pursue justice is an empirical question that
could be answered by data gathering. We know that some are and, indeed, it may be a
majority, but nobody really knows.
What we do know is that if a prosecutor conducts
himself and/or his office arbitrarily, abusively, and unfairly there is no
way to restrain or deter misconduct. The power to charge, plea bargain,
coerce and conceal evidence, and grant immunity is uncontrolled. Much of
the prosecutor's work is unsupervised leaving great room for unknown
mischief and malice. This means that the frequency of prosecutorial
misconduct is likely larger than indicated by those cases that are known
and publicized. The practicing criminal lawyer knows that after ABSCAM,
Watergate, Irangate, and other indictments many American prosecutors
view their role as noble white knights slaying the dragons of corruption
rather than guardians of the rights of both innocent and guilty
There is no systematic or consistent attempt to deal
with the problem of prosecutors who strike "foul blows,"
cheat, lie, break the law, prejudice an individual's rights, seek
personal advantage or satisfaction of prejudice and bias, or pursue
their own ambitions. Law review articles, popular media, judicial
rulings, and criminal appeals frequently identify cases of
prosecutorial misconduct, discuss them, lament them, and analyze them.
However, the problem is that nothing happens.
In Jordan, Minnesota, Prosecutor Kathleen Morris
charged 25 adults with child sexual abuse of forty children, alleging
all manner of strange and bizarre abuse. In a spectacular series of
events, after an acquittal of the first two defendants, Prosecutor
Morris dropped all charges against the other defendants. Minnesota's
Attorney General Humphrey, the FBI, and the state BCI investigated and
concluded there was no way ever to tell what happened (Humphrey, 1985).
The next event was a special commission appointed by Governor Perpich to
investigate the conduct of the prosecutor. After several months the
special commission reported that Prosecutor Morris was guilty of
malfeasance in office. However, she was not removed from office because
the first two defendants were found not guilty and charges against the
others were dropped. Therefore they were not damaged (although their
nerves, lives, careers, families, and finances were destroyed). In the
meantime fourteen civil lawsuits were filed by former defendants against
the prosecutor, county, human services, various other officials, and
therapists who had interrogated children. Next Morris was not reelected
by the citizens of Scott County.
On Tuesday, February 3, 1987, the federal appeals
court gave immunity to Morris and other officials (Oberdorfer, 1987).
The lawsuits brought by persons
the state admittedly grievously wronged and severely damaged were
effectively blocked and ended. The appeals court made this specific
finding. It said that it is essential that prosecutors be able to proceed
in their jobs without fearing lawsuits from the people they charge.
court said prosecutors should be immune from lawsuits over their
official conduct, no matter how reprehensible the allegations against
them. Although one judge said he had "misgivings with the manner
in which the child abuse cases were handled by Scott County ..."
and termed it "this shocking and abusive affair," he concurred
with the opinion prosecutors are immune no matter what they do (Oberdorfer,
Appellate courts have virtually given prosecutors a
blank check to use any tactic that wins. A principle method for
overlooking prosecutorial misconduct is the "harmless error"
doctrine (Lawless, 1985). This doctrine permits appellate courts to
uphold a conviction despite serious prosecutorial misconduct during a
trial (Gershman, 1986). It is a significant factor in the increased
frequency of prosecutorial misconduct. The most important factor,
however, in maintaining a growth curve in trial misconduct is simply
that it works. Evidence and experience shows that prosecutor dirty
tricks in the courtroom have the effect of getting the jury favorably
inclined to the prosecutor (Calder, 1974; Pyszczynski, 1981; Sue, Smith,
& Caldwell, 1973; Thompson, 1981). Misconduct wins cases.
reality is what keeps it going.
There is little or no cost to the prosecutor who
betrays or surrenders the ideal of justice. There are only a few
judicial or constitutional sanctions available and they are used sparingly if at
all. Even when sanctions are imposed they are ineffective in controlling
Misconduct is commonly met with judicial passivity
and bar association hypocrisy. The judicial and professional default is
not easily explained. Perhaps the prosecutor's standing, prestige,
political power, and close affiliation with the bar may account for the
lethargic responses. Another explanation may be the confusion between
disciplining prosecutors and freeing guilty defendants. ... Whatever the
reasons, the absence of significant external controls requires
prosecutors to be self-regulating. With so much at stake, however, and the potential
for abuse so great, self-regulation is not an acceptable safeguard
(Gershman, 1988, p. IX).
It is asking too much to expect the most powerful
individual in the entire criminal justice system, the public prosecutor,
to be answerable only to himself or herself. It is unfair and an open
invitation to incorporate the negative effects of hubris in the body
Prosecution and Child Sexual Abuse
In 1987 The National Center for the Prosecution of
Child Abuse produced a manual for prosecutors dealing with child abuse
cases (APRI, 1987). The purpose of the manual is said to be:
... The mission of the center has been and will
continue to be to promote the prosecution and conviction of child
abusers while advocating aggressively on behalf of child victims. To
accomplish its mission the Center is dedicated to giving prosecutors the
tools they need to prepare and present strong cases using the technology
and resources of all professions charged with responding to reports of
child abuse. This manual is a major effort to meet the needs of
prosecutors in this area (p. XVII).
The National Center is the champion of vigorous and
aggressive prosecution and conviction of child abusers. The manual gives
information about victims, offenders, trial strategies, defense cases,
etc., but the major thrust is to encourage prosecutors to establish
multi-disciplinary teams bringing together all the players in the child
abuse system. The boss of the multidisciplinary team is the prosecutor.
Communities that have demonstrated the most success
in prosecuting child abusers have been those in which prosecutors are
not only actively involved in defining the role of those participating
in the investigation but supervising the investigation as well. ...
The role of the prosecutor should be to become involved in developing
policies leading to effective, efficient, and coordinated
investigations. This involvement requires a commitment from the
prosecutor's office of both time and personnel. ... However, once the
prosecutor takes a leadership role in the system and begins to work with
the personnel and agencies involved in child abuse investigations, the
task becomes easier. And, because of the prominent role of the
prosecutor in the decision-making process concerning all allegations of
criminal conduct, the prosecutor is in the best position to manage a
coordinated approach and enhance the likelihood of its success (p.
One of the models described in the manual is the
program of District Attorney Robert Cramer in Madison County, Alabama.
Cramer (1985) describes the "mobilization" of his team within
his office with full budget, personnel, and program control (Bailey,
1986) centering on a single building identified as the Children's
Advocacy Center where all cases of child abuse accusations are handled.
This model of a multidisciplinary team under one roof, controlled by the
prosecutor, is already followed in several cities (Hopfensperger, 1987)
and is being set up in Minneapolis by Hennepin County District Attorney
Tom Johnson, who is a member of the Board of the NCPCA (Brunswick & Newlund, 1987).
The policy and program of the National Center, if
successful, will produce a unified system of targeted prosecution across
the land with every county having a special multi-disciplinary team that
handles all accusations of child abuse. This team will be controlled in
all aspects by the public prosecutor in that county. The end result is
that all child abuse cases will be under the control of the single most powerful
figure in the criminal justice system, the public prosecutor,
who has no external controls and no accountability but is expected to
The prosecutor will get newsletters, brochures,
special releases, continuing trial helps, and even a special prosecutor
from the National Center to cross examine expert witnesses. There will
be a series of training seminars by the National Center around the
country for District Attorneys and Assistant District Attorneys on
prosecuting suspected child abusers. This emphasis will make persons
suspected of child abuse a top targeted population in every county in
If the prosecutor remains faithful to pursuit of
justice for all the people, there may be some advantage administratively
in a unified command of all those the law says are to be involved in
allegations of child abuse. There may be a reduction in the number of
interviews a child may go through. There may be somewhat better control
of the investigative process and evidence may be gathered more
efficiently. There may be an improved utilization of staff time that can
save a bit of money, although the extra staff initially required to
start such a program will add considerably to county budgets. There may
well be proportionately more convictions than previously. This is the
experience that Cramer (1985) reports.
If self-regulation and personal integrity of the
prosecutor fail to maintain an individual commitment to pursuit of
justice for all citizens, however, there is an open door to all manner
of chicanery, demagoguery, personal ambitions, and vendettas. Establishing a system oriented toward aggressive prosecution that is run
by prosecutors with no external checks and controls, with a criminal
justice system that enables and rewards prosecutorial misconduct, and in
a social climate in which a majority of the public is ready to hang all
persons accused of child abuse has some danger connected with it. The
danger is that the system will produce an unacceptable number of false
positives, that is, innocent people wrongly prosecuted and wrongly
convicted of child abuse.
The Supportive Cadre
Prosecutors have developed a supportive cadre of
professionals who provide information, are given grants to conduct
research, offer assessment and evaluation services, and massage the
media and politicians to gain public support for favored policies.
cadre is perceived by prosecutors as colleagues and assistants in the
task of generating an "awareness of existing information (that) can
prove to be of substantial benefit to prosecutors dealing with child
abuse cases" (Goldsmith, 1988). The cadre began to take shape with
the federal initiative to create child abuse teams when federal funding
for such teams was made available in 1976. Creation of child abuse teams
by state and local authorities opened the door to additional federal
Child protection workers, usually social workers with
MSW training but also many with only a BA level of training, were given
authority to investigate and act upon reports of abuse. If a report was
"substantiated" by a child protection worker, ostensibly for
the protection of the child, immediate action could be taken to place a
child in protective custody or remove an alleged offender from any
contact with the child. The coalescence of the criminal justice system,
law enforcement, and a welfare system that is equipped with great power
and discretion to intervene in families led to the emergence of a
growing support system between prosecutors and a small group of mental
health professionals. This support system has no accountability or
The availability of public money to pay for
evaluation and treatment of alleged victims, investigation of the
factual claims, victim advocacy positions within the prosecutor's
office, conferences of groups focused on child abuse, and research
programs directed toward supporting evolving policies and procedures
quickly built the professional cadre. It includes psychiatrists,
psychologists, and social workers in public agencies, academic
institutions, and private practice. The most important fact about this
group is its power to act long before there is any adjudication of the
abuse allegation in the justice system, criminal or civil.
The prosecutor's manual produced by the National
Center for the Prosecution of Child Abuse (APRI, 1987) bemoans the use
of mental health professionals by the defense in responding to an
allegation. By clever use of quotation marks ("experts") and
pejorative terms (purported experts) the message is given that anybody
whom the defense may call is not really an expert, not knowledgeable,
and finally is in it only for the money. "Defense experts are
appearing with more and more frequency, as the market for their services increases" (APRI, 1987, p. V-35).
Anyone who provides information from the science of psychology to aid in
a defense is called a "hired gun" on that basis alone (Peters,
1988). The implication of being a mercenary is a gratuitous extra
message not included in the decision to apply the term but included in
the meaning conveyed.
It is the choice by prosecutors and their supportive
cadre to use expert witnesses to bolster and support the prosecution
case that requires the defense to respond with experts who can
responsibly dispute the claims of the prosecution. Especially with
younger children, the charge of child abuse often rests upon
uncorroborated statements of a child elicited under circumstances and by
procedures that markedly reduce the reliability of the child's
statements. Therefore experts are relied upon by the prosecution to give
the fact finder the impression that the statements are reliable by
corroboration through expert opinion (APRI, 1987). A defendant must
either challenge that expert opinion or accept a high probability of
The Multi-Disciplinary Team
Having a multi-disciplinary team is no guarantee that
outcomes are better. It all depends upon the quality of what goes on
within the team framework. A team can produce inferior, inadequate, or
mistaken decisions if there is no critical, rational voice within the
group. If nobody challenges any of the assumptions or the quality of the
process, the result is pooled ignorance or pooled bias. The decisions
then do not reflect studied, objective analysis of the factors in a
given case, but rather the unexamined enthusiasms of a group where there
is no dissent or no challenge to the group's consensus. The unspoken
group norm is don't tell anybody what they are saying is foolishness,
stupidity, or nonsense. If anybody express a critical rationality, it is
a deviation from the group norm. Such behavior is viewed as abrasive,
oppositional, difficult, and coming from an outsider. This is not
limited to child sexual abuse teams. It is the same phenomenon observed
in case conferences, business groups, church groups, and the like.
There is sufficient history and precedent in the
criminal justice system to believe it does not tolerate any unpopular
dissenting view. In 1650 John Lilburne was tried for treason against the
Cromwell Parliament. He requested assigned counsel because:
... no eminent experienced lawyer dare well meddle
with my business, no, nor so much as bestow a visit upon me, but he runs
a hazard of being undone (Pollitt, 1964, p. 9).
Andrew Hamilton in 1735 defended Zenger, an unpopular
newspaper editor, and was disbarred. John Adams and Josiah Quincy
defended the British soldiers charged in the Boston Massacre. Adams
wrote of the incredible abuse heaped upon them:
... It is impossible to realize ... the abuse heaped upon
Mr. Quincy and myself. ... We heard our names execrated in the most
opprobrious terms whenever we appeared in the streets of Boston
Throughout post WW II history, those who have spoken
up for or defended unpopular causes and unpopular persons (Nazis,
communists, Blacks, Hispanics, poor) have "run a hazard of being
undone" and many have been undone personally, professionally, and
financially (Miller, 1985; Pollitt, 1964; Winfree, 1987).
Anybody who raises a caution about child sexual abuse
is demeaned, discredited, actively opposed, and disregarded by the
system dealing with accusations. Prosecutors, child protection workers,
and law enforcement officials, have repeatedly attacked and rejected
therapists or evaluators. Prosecutors have said on the record in
Hennepin County that mental health professionals are not acceptable
because they do not go along with the county and agree with the county's
view. Judges have ruled some professionals are unacceptable as
therapists or evaluators and ordered that children with whom there was a
successful therapeutic relationship must be sent to other strange
psychologists who are on the counties approved list. One woman was told
that she had a choice. If she continued to have her children see
therapists (fully qualified) whom the county did not like, they would be
taken away from her. If she wanted to keep her children, she had to
accept the county ordered therapist.
Prosecutors and child protection workers in any given
county have a small group of trusted, cooperative professionals to whom
they refer everybody for evaluation and therapy. These are the people
who will get hired and included in the unified center. Therapists not
directly employed by the county are co-opted into the system (Cramer,
1985). Whatever the merits of the individual case, this system produces
an homogeneous, unilateral group likely to be highly resistant to
change. So far there is no indication, in these multi-disciplinary
groups, of a serious, thoughtful attempt to examine the issue of false
positives, the possibility of making a mistake, and the harmful
consequences to all, including the child, if a mistake is made.
Putting people of like mind together in one facility,
having all children brought there, and then claiming it is an
improvement and that the problems have been solved, will likely result in an increase in the
number of false positives. The risk of increased false positives might
be alleviated if there were a conscious effort to include persons in the
mix who represented a cautious and balanced approach. We have
confidence, however, that the system could accept a divergent view.
A second objection to this model is that the
prosecutor's office controls the purse. The power in having control of
the money is pretty basic. That fact alone means that the prosecutor's
office will run the place. The official policy is aggressive
prosecution. This approach is more likely to increase the frequency of
false positives than decrease it. Conceptually, however, a stance of
aggressive prosecution does not need to include aggressive and
over-determined assessment or investigation. It should be possible to
have a careful and reasonable investigation that is followed by a
vigorous prosecution when there is a strong case. The difficulty is in
the nature of the assessment and the judgment to proceed to prosecution
when there is a serious question about the case.
Misconduct, Tyranny, and Injustice
Recently a letter from New Zealand arrived at our
office. The letter presented the experience of a group of parents in
Christchurch, New Zealand, who believe they have been treated unjustly
and unfairly by their criminal justice system in accusations of child
sexual abuse. They formed an organization called PAIN (Parents Against
Injustice: a similar group has existed in England for over three years).
After only four weeks the group has over 40 persons "directly
involved with allegations made against them."
... We are all aware of the. . . attack on the family
and can do very little. Everywhere we go doors get closed.. .. Sir, we have
a police-officer here in Christchurch in the sexual abuse team who is interrogating our men folk and suggesting "It
would be best for all of us if you go home and put a bullet through your
head." As Jesus is my Saviour that is what is happening.
torn apart. Pressure put on wives to start divorce proceedings or they will
never see their children again. ... Honestly I can say we considered
suicide as a family as an option. What we didn't realize was so
of the families involved with PAIN.
When asked by the Crown Solicitor to provide
testimony for the judiciary inquiry in the Cleveland/Middlesborough
sexual abuse scandal, we met for an evening with a group of about 25
parents of children who had been taken away on the basis of the false
sign of a reflex anal dilatation response. The Labor MP, Mr. Stuart
Bell, who had initially exposed the issue and asked the question in Parliament that led to the
inquiry, was present as well. There was unanimity among the parents that
they never thought such things could happen in their country. Several
references were made to the Magna Charta and the history of justice and
freedom to show how such events were impossible in England, yet their
very own children had been taken away without cause and without any due
process. They had great difficulty accepting that everything they had
learned to believe about justice in their country was false but they now
knew it was. Mr. Bell, MP, was just as incredulous and incensed.
We have had letters from around the world telling
stories of claimed false accusations of child sexual abuse, children
taken away from parents by authorities, families destroyed, suicides
caused by despair over false allegations, destroyed careers and
bankruptcies. A popular local politician from New Zealand told us how he
and his family discussed his suicide after a false allegation was made
by a woman, now an adult, that he had "touched her" sexually
more than ten years earlier. He described the behaviors of police and
the government's solicitor with sadness, for he would never have
believed injustice could happen that way in his country. A psychiatrist
from Holland came to Minneapolis to visit and consult with us. He told
of the authorities in Holland responding to accusations of child sexual
abuse with precipitant judgment, harshness, and punitiveness. He saw
this pattern as different than the response generated by any other
accusation of crime.
Frequently, in cases where we provide consultation or
expert witness services, the accused and/or the accused's family or
friends say the same thing we heard from other countries. "I would
never have believed it could happen in America!" They talk of
oppression, injustice, unfairness, and ruthlessness by prosecutors, law
enforcement, and child protection workers. They sometimes make
analogies to Nazi Germany and Storm Troopers or to communism and the
KGB. In military court martials, officers and noncoms, friends of the
accused, have said they are disgusted with the military, they will get
out at first opportunity, that they know now the military has no
interest in justice or fairness. When men have been acquitted in
military court martials, commanding officers have called in their
friends in the service and told them to have nothing further to do with
the acquitted or their careers in the military are over.
Prosecutor and supportive cadre behaviors have been
reported to us by individuals accused, defense counsel, and friends or
family. A prosecutor organized a group of parents of alleged victims,
met with them for months prior to trial, and orchestrated their
appearance in the courtroom. He encouraged them to demonstrate
in the hallway. The threats, yelling, screaming of obscenities, and
violent gestures toward defense witnesses by this unruly mob led the
judge to bring the jury into the courtroom with additional armed
guards for the last three days of the trial. The judge denied defense
motions for a mistrial. The jury convicted and an appeal was denied on
the basis of the harmless error doctrine.
A series of prosecutors brought charges of bizarre
and highly improbable sexual abuse against five individuals to four
grand juries across a five-year period. Repeated indictments were
obtained and either dismissed or dropped. No trial was ever conducted.
But it took the State Supreme Court's ruling to stop this prosecution
conduct and end the nightmare for the individuals accused.
In several instances it has been shown that
prosecutors concealed exculpatory evidence from the defense. This ranged
from concealing that a child had been sexually abused by the father to
hiding pages of documents from the police investigation. In a civil suit
against a prosecutor's office, the plaintiff maintains there is proof of
fabrication of evidence by the authorities.
Several times appellate courts and state Supreme
courts have set aside and reversed convictions on the grounds of undue
influence on the jury or the inadmissibility of evidence brought by the
prosecution. In one instance a court officer struck up an affair with a
jury member. A jury member gave an affidavit that a reporter on the
jury, a friend of the prosecutor, misinformed the jury about sentencing
A common complaint is that nobody from the
prosecutor's office has ever interviewed the person accused but the
assumption is made immediately that the accusation is true. The only
chance a defendant has to tell his side of the story is in the courtroom
at the trial. This leaves the individual feeling helpless and unable to
affect the process at all.
When a father is accused, often mothers are told they
must leave their husband and believe abuse occurred or they will have
their parental rights terminated. Three children, aged three to seven,
were seized on the street and put into foster care after the father was
accused. He was acquitted in a criminal trial, but the state has moved
in family court to terminate parental rights claiming the father did
abuse the children, the mother failed to protect them, and is not
meeting their critical emotional needs because she believes her husband
did not abuse them.
A man befriended a young lad who stayed overnight
with him on two occasions. The second time the lad claimed the man had
kissed him on the neck and rubbed his buttocks. This was the only charge.
man said he had kissed the lad on the cheek and patted his buttocks
while saying good night to him. In closing argument the prosecutor
maintained that any person touching any child anywhere on their body
which made the child feel uncomfortable was guilty of sexual abuse.
then said that no man should be able to escape punishment for the crime
of sexual abuse by claiming he was only trying to be affectionate.
man was convicted and faces several years in prison.
A college professor was charged with eleven counts of
sexual abuse of a four-year-old neighbor child and one charge with a
nine-year-old neighbor girl. He was alleged to have rubbed suntan oil on
the shoulders of the older girl and in doing so touched her chest.
agreed he had rubbed suntan lotion on the child but denied touching her
chest and denied all of the charges of sexual behavior. (He and his wife
had a part time business selling cosmetics including suntan lotion.)
jury acquitted on the eleven charges of sexual abuse but found him
guilty on the single charge of rubbing suntan lotion on the older girl.
He has spent two years in prison for his conviction on this one charge.
In this country and others, increasing numbers of
people are persuaded by their own personal experience in an accusation
of child sexual abuse that their government is tyrannical, oppressive,
and destructive. They despair of any hope or recourse to a standard
of justice and fair play under their present rulers. Prosecutors are
believed to be evil, wicked, conniving, and unscrupulous and only
concerned with winning cases. Law enforcement and child protection are
enemies whose capricious behaviors are feared more than any other.
man, who claimed his family had been destroyed by a false accusation,
said "I can't wait to get to Nicaragua and kill fucking
Americans!" A secret volunteer group, calling itself FIST, spoke on
a national talk show (Morton Downey) and described how they would
forcefully mount an armed raid to abduct children and relocate them with
their falsely accused parent in other countries.
On the other hand there is a well-developed sanctuary
movement with a network of "safe" houses. Mothers, who believe
their children have been abused but also believe the justice system has
not affirmed abuse and is not protecting them from the abuser, kidnap
their own children and hide them from authorities in the safe houses.
Some mothers, like Elizabeth Morgan in Washington D. C., have gone to
months rather than reveal where their children are.
The malaise and despair of justice by so many caught
up in the child sexual abuse morass is surely an unintended effect and
it may never issue in anything more than a widespread feeling of anomie
and injustice, disgruntlement and alienation from the society. However,
the criminal justice system ought be concerned about the impact
prosecutorial behavior in child sexual abuse cases has on the people.
People on both sides of the justice system's actions — those who believe abuse happened and those who believe abuse did
not happen — are beginning to act in open rebellion against the justice
system. At the very least this gives the message that what is being done
is not working to produce what it is supposed to produce — a citizenry
believing in and accepting the justice system's workings as fair, just,
APRI (1987). Investigation and prosecution of child
abuse. Alexandria, VA: American Prosecutors Research
Bell, S. (1987). Personal Communication.
Bailey, J. (1986, November 19). Grueling child-abuse
cases push many prosecutors to their limits. Wall Street Journal, p. 35.
Blinzler, J. (1959). The Trial of Jesus. Cork: The
Mercier Press LTD.
Bright, J. (undated). The History of Israel ().
Philadelphia: Westminster Press.
Brunswick, M. & Newlund, S. (1987, August 21).
Proposed child abuse center described as 'child friendly.' Star and
Tribune, p. 1B, 4B.
Calder, (1974). The relation of cognitive and memorial
processes to persuasion in a simulated jury trial. Journal of Applied Social
Psychology, 4, 62-69.
Campbell, W. (1988). Private communication.
Casson, L. (1987). Imagine, if you will, a time
without any lawyers at all. Smithsonian,
Cramer, R. E. (1985). The district attorney as a
mobilizer in a community approach to child sexual abuse. University of
Miami Law Review, 40:181, 209-216.
Economist, (1987, August 22). A law unto itself. Economist, p. 32.
Finn, P. (1988). Bias crime: A special target for prosecutors. The Prosecutor,
Gershman, B. L. (1986). Why prosecutors misbehave.
Criminal Law Bulletin, 22(2), 131-143.
Gershman, B. L. (1988). Prosecutorial Misconduct (). New
York: Clark Boardman Company, Ltd.
Goldsmith, S. (1988). Editor's note. Prosecutors Perspective, II, 1. Inside cover.
Guignebert, C.. (1939), The Jewish World in the Time
of Jesus (). London:
& Kegan Paul LTD.
Hopfensperger, J. (1987, September 25). Child abuse
center strives to avoid causing further pain. Star and
Tribune, St. Paul
Edition, p.1B, 4B.
Humphrey, H. H. (1985). Report on Scott County
investigations. St. Paul, MN: Attorney General
Jones, H. (1985). Personal Communication.
Kittel, G. (1964). Theological Dictionary of the New Testament
(). Grand Rapids, MI: Eerdmans Publishing Co.
Lawless, J. F. (1985). Prosecutorial Misconduct (). New
York: Kluwer Law Book Publishers,
Miller, R. D. (1985). The harassment of forensic
psychiatrists outside of court. Bulletin of the
American Academy of Psychiatry and Law,
13,4. p. 337-343.
Nagel, G. (1986). Personal Communication.
Oberdorfer, D. (1987, February 4). Morris, others get
immunity. Minneapolis Star and
Tribune, p. 1A, 9A.
Peters, J. (1988). Private Communication.
Pollitt, D. H. (1964). Counsel for the unpopular cause: The
"hazard of being undone." North Carolina
Law Review, 45, 9-31.
Pyszczynski, T. (1981). The effects of opening statement on mock
jurors' verdicts in a simulated criminal trial. Journal of Applied Social
Psychology, 11, p. 301-310.
Schilder, K. (1939). Christ on Trial (). Grand Rapids: Eerdmans
Stewart, R. A. (1961). Rabbinic Theology. Edinburgh: Oliver and Boyd.
Sue, S., Smith, R. E., & Caldwell, C. (1973). Effects of
inadmissible evidence on the decisions of simulated juror: A moral
dilemma. Journal of Applied Social
Psychology, 3, 345-350.
Thompson (1981). Inadmissible evidence and juror verdicts. Journal of Personality and Social
Psychology, 40, 453-461.
Winfree, L. T. (1987). All that glitters is not necessarily gold: Negative consequences
of expert witnessing in criminal justice. In P. Anderson. & L. T. Winfree
(Eds.) Expert Witnesses ()()
(p. 138-153). Albany, NY: State University of New York Press.
* Ralph Underwager is a licensed consulting
psychologist and Hollida Wakefield is a licensed psychologist at the
Institute for Psychological Therapies, 2344 Nicollet Avenue South,
Suite 170, Minneapolis, Minnesota 55404
This article will appear in B. Rossen and J. Schuijer
(Eds.), Polilick van Zederang. Amsterdam: Sweps and Zeitinger, in press.