10 Tips (Maybe Eleven) for Defending Child Sex Abuse Allegations
By Experienced Tennessee Criminal Defense Lawyer Brent Horst
(Child Sexual Abuse Crimes: Easiest to Accuse - Hardest to Defend)
Authors note: This article is targeted mainly toward non-lawyers, those who suddenly find
themselves or someone close to them accused of child sexual abuse. As the contents of this
article are based almost entirely upon my personal experience and opinions developed from my
twenty years of criminal trial experience as a prosecutor and defense attorney, the use of legal
citations will be omitted as much as possible. The purpose of the article is to provide individuals
accused of child sexual abuse with basic practical legal information and a framework for things
to consider as they begin the process of deciding how to defend themselves. However, such
individuals should always keep in mind that every case has unique and challenging facts that may
call for different considerations or actions then those discussed in this article. Anyone accused of
a crime should follow the advise of an attorney experienced and knowledgeable in the defense of
these cases and who is familiar with the specific facts of the individual's case.
Introduction
In recent years more and more attention has been paid to child sexual abuse crimes not only by
the criminal justice system but also by local and national media. Sensational stories of child
predators abducting children and abusing them, and stories about the sex offender registry laws
enacted as a result of such tragic cases, have lead to a near witch hunt atmosphere where the
public seems to believe that there is a child predator around every corner and on every door step.
What is usually overlooked, however, is that the great majority of child sexual abuse cases do not
involve stranger abduction or even the convicted sex offender who lives down the street. The
great majority of child sexual abuse allegations are made against a family member, friend, or
relative such as a father, stepfather, uncle, teacher, pastor, priest, counselor, or other person close
to the child. Certainly, when the person accused is guilty, child sexual abuse is a crime of
opportunity. In other words, the offender's close relationship to the child provides the offender
access to the child and the opportunity to commit the crime. However, the close relationship in
most child sexual abuse allegations can also provide a motive for a child or someone close to the
child to make a false allegation, and in fact many false allegations are made. The public needs to
realize that anyone can be accused and that false allegations are often made. However, the media
tends to overlook the stories about false allegations. When was the last time you saw a story in
the news where the media told you about a case where the allegations of a sexual crime against a
child turned out to be false, unless the story happened to involve a celebrity? You never see that
story, but I know they exist because I have represented these individuals.
For example, I have represented clients in cases where a child made an allegation because she
wanted go live with her biological parent, a case where the child's mother wanted to change
shared custody with the father to sole custody by her which would have provided her a ten fold
increase in child support, a case where a child wanted to go live with her mother rather than her
father because he was too strict, a case where a teenage boy wanted to be able to brag that he had
sexual relations with his girlfriends mother. All of these cases are examples of cases that I have
actually handled and in which we have obtained dismissals or not guilty verdicts.
Disclaimer: Not all results are provided for all cases. The prospective client's individual facts and
circumstances may differ from the matter in which the prior results have been provided and may
affect the ability of the lawyer to achieve similar results for the prospective client.
Allegations of child sexual abuse are the easiest crime to accuse and the hardest to defend. With
alleged crimes such as a drug deal, or bank robbery, or any other type of crime the authorities and
juries usually require some corroborative evidence before they will bring charges or find the
accused guilty. In child sexual abuse cases, however, the authorities and juries are much more
likely to believe the uncorroborated and unsubstantiated allegation of the accuser. The mere
allegation by the sole accuser, who can be as young as the youngest child simply able to speak,
can cause investigators to bring criminal charges, juries to convict, and an innocent person
spending for the rest of his life in prison.
There are several reasons for this response by the criminal justice system. First, many adults
simply cannot believe, nor do they want to believe, that a child has the capability to lie about sex.
This response I believe is rooted in the fact that fifty, thirty, or only twenty years ago a child
under a particular age simply would not know certain details about sexual activity unless they
had been abused. However, as children have become more and more sexually active at younger
and younger ages, and especially as children are now exposed to strong sexual content through
the media and the internet at extremely young ages, a child now has the ability to describe
specific sexual content when making an allegation that years ago the child would not possess.
Many individuals and many authorities simply have not accepted that our children are now often
sexualized to the extent that they do have the sexual knowledge to make a false allegation.
Secondly, police officers and social workers that work in this area of the criminal justice system
usually enter into this type of work out of a strong desire to protect children. They view
themselves - even if they will not admit it - as an advocate for children, not un-biased
investigators. Therefore, when a child makes an allegation of sexual abuse, the investigators start
by assuming the accused is guilty rather than acting as a neutral investigator searching for the
truth. Thirdly, the natural repulsion felt by any person against child sexual crimes, fueled by the
witch hunt atmosphere created by the media in recent years, simply creates an up-hill battle for
anyone accused of such a crime. While our constitution is supposed to require that anyone
accused of any crime is presumed innocent until proven guilty, from a practical standpoint the
reverse is in fact the situation with child sexual abuse allegations. Anyone accused of child
sexual abuse needs to understand that they need to be prepared to do their very best to convince
the authorities or the jury that they did not commit the crime.
From my experience both prosecuting and defending child sexual abuse cases I have developed a
list of what I have found to be the most important things that any person accused of such a crime
needs to consider when preparing his or her defense.
Get a defense attorney involved immediately upon the allegation and have him investigate.
As of the date of this article, in every case in which I have become involved before the State
actually brought criminal charges, we have been able to avoid criminal charges being filed. The
criminal justice system does not like to admit it made a mistake. It is much easier to fend off the
filing of charges than it is to obtain a dismissal of the charges once they have been filed.
Although as stated above I believe that most investigators and social workers have a natural bias
in favor of the child when investigating these cases, I have also found that once they are
confronted with evidence in favor of the accused they can often be brought around and will begin
to look at the case objectively. Their bias is not from ill will. They are not out to bring charges
against innocent individuals. Thus, while the initial bias may prevent them from looking for
exculpatory information, if it is brought to their attention and they are forced to consider it,
criminal charges can often be avoided.
Early investigation however is perhaps most important because it provides the best chance to find
or develop favorable evidence before the case is locked in. Once a child has made a statement to
a school counselor, and a police officer, and a detective, and a social worker, they have recounted
the allegations three, four, and five or more times and have been locked in to their story, and
getting the truth becomes more and more difficult. Although we are not able to interview the
accuser in all cases, depending upon the cooperation of the custodial parent or guardian, in the
cases that we can immediately interview the accuser, we often find favorable information.
For example, in a recent case a ten year old stated that she saw her stepfather having sexual
contact with her sister. The sister denied the claim. Nevertheless the state was pursuing charges
and we were asked to represent the accused. We immediately interviewed the ten year old. When
asked what she saw, one of the things she alleged was that she saw the stepfather French kissing
the sister. When asked to explain what French kissing was she said that she did not know. The
point that we were able to make to the prosecutor considering criminal charges was: why would
the girl use the term French kissing if she did not know what that term meant? The obvious
conclusion is that the girl was coached in what to say - we believe it was by the biological father.
When our interviews were provided to the grand jury considering charges the grand jury
dismissed the case.
There are other things, that in certain cases, the defense will want to do in order to fend off
potential charges before they are brought. Although lie detector results are not admissible in
court in most jurisdictions, the state's investigators love lie detectors and thy believe them to be
reliable and valid. However, there is a reason the tests are not admissible in court and that reason
is that they are not extremely reliable and the results of a lie detector can be influenced by such
things as nervousness and fear. Therefore, even innocent individuals may want to decline
consenting to a lie detector test. Yet there are times to consider taking a lie detector test and
strategies to employ. Even though the results are not admissible in court once a lie detector is
taken and failed such a result will certainly confirm for the investigator his bias and it will be
even more difficult to avoid formal charges. However, refusing the test will also do the same
thing. Thus, the accused is often caught in a catch-22 situation. Therefore, in certain cases I will
have a client do a dry run with a polygraph expert hired by the defense. If the accused is able to
handle the stress of the exam and pass the exam, I will in some cases recommend he agree to a
test by the authorities. Taking and passing a lie detector test is possibly the quickest way to
refocus law enforcement away from the bias against the accused and to get them to begin to
consider that the allegation is false.
There are also psychological exams called psychosexual exams. These tests and the results are
also not admissible in court in most jurisdictions in the guilt phase of the trial. Although no
psychological test can say for sure whether a particular person for certain did or did not commit a
particular sex crime against a particular child, the psychosexual exam will identify certain
psychological traits that fit the profile of the type of a person that is more likely to sexually abuse
a child. If a person does not posses those particular personality or psychological traits, chances
are they are not guilty of the specific crime charged. Therefore, on some occasions I will have my
client take the exams and then submit the results to the authorities. Although not as powerful as
passing a lie detector, a favorable exam result can also begin to refocus investigators. If we are
able to provide both a favorable lie detector result and a favorable psychosexual exam result, we
are often well on our way to convincing the authorities not to file formal charges.
Determination of and presentation of the child's motive to make a false allegation of sexual abuse
are essential.
It is absolutely essential that during the defense investigation that a motive for a false allegation
be discovered and that the child's motive be presented to the investigating authorities or to the
jury. As discussed above no one likes to believe, nor do they want to believe, that a child would
lie about sex. To overcome the inclination of most individuals to immediately believe the child,
you need to provide a reason the child would lie. As discussed above, motives for such
allegations can include the child's desire to live with the other parent, an attempt to avoid
discipline, the bragging rights of a teenage boy, or a child's desire to please the other parent by
complying with instructions of the other parent to make the allegation. These are just some
examples of what I have encountered. There are many others and discovering which particular
motive is in play in a particular case will require a very through review of the facts. Even in a
case where the motive is not obvious or readily apparent, one should develop at least a working
theory of the possible motive constructed from all circumstantial evidence.
In some cases and especially in cases involving very young children, the motive might be the
motive of another adult in the child's life and the child is simply repeating what he or she has
been coached to say. Children, especially very young children, can be coached. The younger the
child the less likely the child will be able to distinguish reality from fantasy. In other words, a
very young child can be coached to make statements that the child believes to be true 1.
A final note about motive: Sometimes there will be no intentional motive by the child or anyone
else. I believe that sometimes parent hysteria can cause an unintentional false allegation or an
exaggerated allegation. If a parent is constantly inquiring of the child about whether the child has
been abused, a child and again especially a very young child, may actually develop a false
memory or belief of being touched, or may develop an overly sensitive response to legitimate
touches in response to constant questioning. For example, in one case my office reviewed, the
child's mother was extremely controlling and always asking the child if she had been abused. The
child was left with the father's mother one weekend while the parents went out of town. Upon
return the child, when again asked by the mother if the child had been touched, stated that her
grandmother touched her. The mother became hysterical and called social services and the police.
What had happened was the grandmother had bathed the child and in drying the very young child
with the towel she did touch some private parts with the towel. This case was resolved rather
easily, but we believe it was only because the allegation was against the grandmother, and the
system bias we have spoken about earlier, did not exist because of the gender of the grandmother.
Had the grandfather given the child the bath I believe we would have had to fight much harder to
avoid formal charges. Therefore, if you have been accused and another adult in the child's life has
been obsessive with the child about abuse this is something that needs to be explored in
preparing your defense.
Demonstrating the basis of the child's knowledge of sexual terms, situations, and acts is very
important.
As discussed above, many individuals will credit a child's statement of sexual abuse simply
because the allegation involves detailed sexual information that is not age appropriate. In such
cases, it is important to be able to demonstrate that the basis for the child's knowledge came from
a source other than the alleged abuse.
In order to demonstrate the child's knowledge regarding sexual matters, an investigation needs to
be conducted into the child's access to television, movies, cable, internet, the child's other
relationships, dating behaviors, pornographic material in the home, the child's sexual education
curriculum, and last but not least information being provided by the child's peers. A child can
learn quite a bit from a sexually active friend who has confided in the child.
Use civil custody and dependant and neglect proceedings to gain information and to assess the
State's case.
When the accused is a parent, step parent, or someone who is a custodial care taker of the child,
chances are that, in addition to possible criminal charges, the State will file a civil proceeding to
obtain court orders for the accused to stay away from the accuser. The first inclination of the
accused may be to forgo any rights to have a hearing in the civil court because the accused does
not wish to challenge his or her right to parent the child, at least for the time being. This can be a
serious mistake.
In many States the rights of the accused in a criminal proceeding to gain access to prior witness
statements, and to take depositions is very limited or just not allowed. Unless the custodian of the
child allows your attorney to talk to the child, you can find yourself going into trial charged with
a heinous sexual offense against a child and facing years in prison - all without knowing exactly
what the accuser is claiming you did. You should therefore use the civil proceedings as an
opportunity to prepare for your criminal case. In many states civil discovery is much broader than
criminal discovery. Use the civil discovery rules to take depositions of the child, and anyone to
whom the child made a statement. Use the custody or dependant / neglect hearing to obtain a
sworn statement from those individuals. In this way you not only know exactly what to prepare
for, but you may very well be able to develop statements that are inconsistent. If the child or
other witness gives sworn testimony in the custody, dependant / neglect case that is different
from what they give in their testimony during the criminal case, you can argue that the witnesses
in not credible.
Words Matter
A jury has a very minimal amount of time to make assessments and determinations about you
and the accuser. Therefore, I believe even terminology can be the difference between a not guilty
or a guilty verdict.
Lawyers and judges who work in the system every day have a habit, simply as a sort of short
hand, of referring to individuals not by name but as the victim or the defendant - even before a
person's guilt or innocence has been established. Your attorney should humanize you as an
individual. Never let your attorney refer to you as his client, or the defendant. You are Mr. / Ms.
and your last name, or you are referred to by your first name. The jury needs to understand that if
they find you guilty, they are affecting the life of a real person with a real identity beyond
someone who is simply the "defendant". Alternatively, do not recognize the child as a "victim".
Do not - I repeat do not - call the child the victim or even the "alleged victim". I believe this
sends a powerful message to the jury. If they hear the term victim repeated enough they will
eventually come to view the child as "the victim". I would not even refer to the child as "the
child". The attorney should refer to the child as the accuser whenever possible as opposed to
using the child's name. If you are testifying, it would seem unnatural and seem coached for you to
say accuser, so you should use the child's name.
One favorite question of prosecutors when conducting a cross examination of the accused is to
ask whether the child is lying. They especially like to ask this question when the accused has a
close relationship with the accuser, for example when the accused is the parent. Although this
question is highly objectionable, it is often made before the defense attorney has a chance to
object. Once the question is out, an objection may be even more damaging than allowing the
accused to answer. Therefore, unless the child is very young and it can be argued that he or she
may have a false memory, the accused needs to be very willing to say the child is lying. I have
seen many individuals who were accused reluctant to call the child a liar because they are the
child's parent or because they just felt it was not nice to call a child a liar. However, as I stated,
words matter. You are on trial for your life. If the child is not lying than she is telling the truth. If
she is lying you better be willing to say so. Hesitating could cost you your freedom.
Have a strategy for what to do with the forensic interview.
A "forensic interview" is simply an interview performed by a person, usually a social worker,
who is supposed to be trained in how to interview children in a manner that will make sure the
interview provides reliable information. As the person interviewing a young child can easily
influence what the child says, 2forensic interviewers are supposed to be trained in how not to ask
leading questions and how not to influence the child's answer. The problem is that, due to their
bias in favor of children and against anyone even simply accused of sexual abuse, many so-called
forensic interviewers nevertheless conduct very leading interviews of the child. The "forensic
interview" is typically videotaped although I have run into a few jurisdictions that refuse to
videotape the interview and refuse any representative for the accused to watch the interview -
which in itself speaks volumes about the biased nature of the investigations in that jurisdiction.
However, for those interviews that are videotaped, most jurisdictions will allow the attorney for
the accused to view the videotape of the interview. Some jurisdictions will also provide a copy of
the tape. Other jurisdictions will not allow the attorney to have a copy and the attorney must go to
the prosecutor's office, or detectives office, or social services to view the tape.
Whether your attorney is able to get a copy of the forensic interview tape or not, what you should
be looking for on the tape is whether the interviewer uses leading questions and other