The Importance of Negative Evidence in a False Sexual Abuse Allegation (A Grandmother's Story)

Betty Duffey*

ABSTRACT: In the Fall, 1991 Issues in Child Abuse Accusations, there was a report by Dr. Robert Fay entitled "A Critical Analysis of a Medical Report in a Case of Suspected Child Sexual Abuse."  The following paper provides further information about the allegation, arrest, and trial.  There was much "negative evidence" which proved to be more important than the "positive" evidence.

In August, 1988, while attending a conference on Critical Thinking in Rohnert Park) California, I participated in a session titled "Making the Most of Nothing: looking Critically and Creatively at Absences, Silences, Spaces, Things Ignored, and Things to Be."  In their program abstract, the presenters stated "... we human beings are biased toward positive information; consequently, we neglect or underestimate the importance of certain negatives — among them: absent events, empty intervals, disconfirming instances, negative evidence — which are essential for thinking and learning effectively ..."1

Fourteen months later, my son — an unwed father of two children — was arrested and charged with sexual abuse of his daughter who was 2 years and 8 months old.

From the beginning of the two-year ordeal until its conclusion in October, 1991 (with a "not guilty" verdict) the "nothings" or "negative evidence" seemed more important than the total of "somethings."

On the night of his arrest, I spoke to both the child's mother (the accuser) and my son in the police station.  Both parents told me the same scenario of his visit three days earlier to see his son (4 years, 4 months old) and his daughter.  The two children and their parents were in the bedroom, where the father was reading stories to the children.  The mother left the bedroom briefly to attend to an overflowing washing machine and consult with the repairman who was in the adjacent room (a distance of about 15 feet from bedroom.)  The daughter came out of the bedroom shortly, and said, "Daddy touched me on the bottom."  When questioned by the mother, the father said the little boy had started a tickling game, and in that process the father had brushed his hand against his daughter's bottom.  Both parents told me he remained visiting in the apartment for another two to three hours.  When I asked the mother specifically how the children had acted towards him, she replied, "Ok, just normal."

The allegations came about later.  After the father left, the children went to bed about 8:30.  The mother said that the little girl woke up crying with a nightmare and complaining of vaginal pain (about an hour later).  When she was examined in the hospital the following day, the examining doctor said: "... there was medical evidence to support digital penetration of the vagina.  The child had been examined in April of 89 and hymen opening was 2 mm and the exam on 8 Oct revealed the opening to be 8 mm."

The April, 1989 examination was done because in January, 1989 the mother accused the father of sexually abusing the boy.  This accusation was investigated by the police and their report January 23, 1989 stated that, "This case is unfounded."  From January until April, the mother would not allow the father to see the children.  Then in April, she had both children admitted to a hospital for 5 days of medical and psychological evaluation.  The diagnosis stated on the discharge report says, "No signs of sexual trauma."

All parties agree that after the April evaluation until October 8, the father was never alone with either child.  Mother and children moved to a different apartment, and she did not give the address to my son.  There was no telephone, and she would call him from a laundromat to arrange for visits with the children.  He would meet mother and children at the laundromat, take a walk in the neighborhood, perhaps go to a playground, or a local restaurant for a snack.  A phone was installed in the first week of October, 1989, and on October 8, the mother called my son several times to arrange a visit in the apartment.  In the police station (the night of the arrest) I observed my granddaughter's behavior.  She left her mother and me, and walked over to the interrogation room where her father was confined.  She waved and smiled to him through the window.  Then she pushed several pieces of candy under the door to him.

The police report did not mention these actions by the child.  Also, there was no attempt made by the police to question both parents and the child in the same room.  I thought this would have been a reasonable procedure if they were trying to gather objective data, rather than just building a case against the accused.

A close friend presented the information available in October, 1989, to her boss, a pediatrician.  He stated that the change in diameter could not have occurred in a single, brief, incident without bleeding, tearing, and severe pain being experienced by the child.  He added, "Of course, I would not testify in court for a defendant accused of sexual abuse!"

It was one year before the "disclosure" was obtained by my son's lawyer.  Then the search began for a doctor to review the medical reports.  We discovered that many doctors were unwilling to become involved in a sex abuse case.  When Dr. Robert Fay was contacted, he agreed to review the medical evidence, and his report was in the Fall, 1991 Issues in Child Abuse Accusations.

Finally, the case went to trial in October, 1991.  The prosecution presented four witnesses: the child, the mother, the arresting officer, and the examining doctor.  The defense presented only one witness, Dr. Fay.

I have read the 341 pages of transcribed testimony several times.  Some of the more significant "negative evidence" findings are contained in the questions and answers between the defense lawyer and Doctor Fay.

Q.   If we are assuming the opening was 2 millimeters on Saturday, saw Daddy on Sunday, then went to the doctor on Monday, what would you expect the medical findings to he for this hymenal opening to be 8 millimeters?
A. For that to have happened in a one incident situation, that child would have had to be hurt and hurt acutely.  And I would assume there would he screaming and blood.
Q. Now, lf that child had been injured in anyway that you have just stated, from the 2 mm to the 8 mm opening, would the findings by (the examining doctor) he consistent with sexual child abuse?
A. Well, her findings did not at all reflect acuteness other than redness, and a little soreness.
Q. When you say acuteness, what do you mean by acuteness?
A. A kid that was abused yesterday, partially, would have residual cuts or residual blood, perhaps mother could wash it away, she would have screamed, she would have had some bleeding, and we would be seeing an injured hymen, acutely injured hymen.
Q. Doctor, in what respect would you expect to see the hymen injured as a result of that type of penetration?
A. Well, the exam for an acute injury and the findings for acute injury are different from old findings or scarring or thickening or just a big, wide opening, that takes time.  You can't age things much beyond 30 days.  You can't say it is one year old or two years old; but, an acute thing, less than 24 hours, you know it happened, because there are just findings that aren't here or that would he there if this child was acutely penetrated.
Q. Like what?
A. There would have been a flesh tear to the hymen, and we would see a word like tear.
Q. You as a doctor could tell the difference between a fresh tear and an old tear as such?
A. Yes, if indeed there was, you can definitely tell.  It is like a cut or scar.  You can tell whether I got four stitches here last week or 40 years ago, which is when I got the four stitches there.  And you can tell that, looking at a hymen.  You can tell an acute injury, you cannot tell the age of old injuries other than it is over a month or two.  Anything that opened a hymen from next to nothing (2 mm) to 8 mm in one event, in five minutes or less, it would have caused more traumatic changes than are listed here.  In fact, with the possible exception of the redness and soreness there is no other acute anything here ...  Another thing you might see is a fingernail scratch ...

Another "nothing" was the non-appearance of the washing machine repairman to support the mother's description at the trial of the incident.  The mother described things differently from what she said to me in the police station three days after my son's visit.  When answering questions from the Assistant State's Attorney, she stated, "She came into the kitchen, she was tugging at my clothing trying to get my attention.  She was upset."  She stated that her daughter said that her dad had touched her bottom.

Q.   How was she speaking?
A. Her voice was very high pitched, she was afraid.
Q. And what was her volume or decibel level when she was speaking to you?
A. On a scale of one to ten, her voice was at a seven?
Q. What was normal for (her)?
A. A two.

Later in the examination, the mother was asked if she knew how to get in touch with the "washing machine repairman" today (October 3, 1991).  She replied, "I do not, he's moved."

On recross examination, the defense attorney asked her if she knew where he was living at the time of alleged incident in 1989.  She replied, "I did."

If the child had truly evidenced distress at the time of telling mother, "Daddy touched my bottom," the repairman could have been a corroborating witness.  That the prosecution did not seek to have him appear, makes it seem (to me) that his testimony would have indicated "no distress."

Another "nothing" — neither a colposcope nor a camera was used during examination of the child's genitalia (although both were available).  The inference I made was that the use of such equipment would have been more helpful to the defense than to the prosecution.

During the two years from my son's arrest until his trial, I saw both grandchildren several times (my son was prohibited by condition of his bond from seeing them).  Neither child ever brought up the alleged abuse — I think it would have been very normal for a child to ask me, "Why did my Daddy do that bad thing?" if anything bad had been done.

In his concluding remarks, the court made mention of two other "nothings."  Using the two millimeters as a starting point was in his words "nonsense."  The reason it was nonsense was that the doctor who made that "starting point" did not come into court to describe the way the examination was done.

The court acknowledged the difficulty faced by both prosecution and defense in dealing with the child witness.  He stated, "... when she said she knew she had to tell the truth, she believed that.  And I think for her purposes, telling the truth was telling what she believed occurred

However, "... what I am left with is a little girl who now says ... that her father put his finger in her vagina.  She doesn't say once, twice.  She doesn't say it happened that he held me down.  She doesn't say he pulled up my nightgown ... Not one single iota of any information about what happened around this incident ... If you have any kind of case that deals with a sexual assault, the lawyers spend all their time going into all of the issues about what happens around the situation ..."

When we left the courtroom quite jubilant because of the "not guilty" verdict, my son asked his lawyer, "What about the children?  When will I be able to see them?"  His response was, "Be very careful, the police would be happy to arrest you again."  Since he is an unwed father, any visitation rights he had were those granted by the mother.  He has attempted to see the children on their birthdays and was told "the children don't want to see you now.

We attempted to deliver Christmas presents to the children on December 28, 1992, and discovered that the family had moved and left no forwarding address.

* Betty Duffey can be contacted through Issues in Child Abuse Accusations[Back]

1 Program and Abstracts for The Eighth Annual & Sixth International Conference on Critical Thinking and Educational Reform August 7-10, 1988, Under the Auspices of the Center for Critical Thinking and Moral Critique and Sonoma State University, page 61.  [Back]


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