When charges of child molestation are filed, no one -- not prosecutors, not defense attorneys, not victims and certainly not the defendant -- looks forward to the trial.
Sexual abuse of children has in some ways become the crime of the 1980s. Reports of abuse that surfaced in the early part of the decade brought intense public protests. Utah lawmakers responded to the public outcry in 1982-83 with a series of laws stiffening penalties and making conviction easier.With recent Utah Supreme Court decisions overturning convictions and outlining what is acceptable in obtaining a conviction, prosecutors, law officers and social workers are re-evaluating their work.
The court has been particularly critical of the use of expert therapists in trials. In several cases, it ordered new trials for men convicted mainly on experts' testimony that the child was telling the truth.
When children recanted their stories on the witness stand, experts have testified that reversals fit the psychological profile of a typical victim. But gaining enough evidence for a conviction without the testimony of an expert therapist can be tricky.
The biggest need is a statewide policy -- something now lacking -- and consistent, excellent training of investigators, according to Barbara Thompson, director of the Division of Family Serivces.
"We're not in emergency sessions to decide how to handle it," she said, "but we are looking. Counties and prosecutors handles things differently. Most are very, very good. But we need a more uniform system.
"We're getting better on child abuse. We have a risk assessment tool in place and we're closer on a definition of what's substantiated and what isn't. We're getting better. Our goal's to be more consistent."
DFS child welfare workers, investigators who work with police in assessing allegations, are trained in a broad area, according to Spencer Morgan, division training specialist.
"We're trying to resolve differences in training," he said. "It'll take a collaborative effort in the community handling abuse cases."
Workers are taught to identify, assess and treat emotional maltreatment, physical and sexual abuse and to perform crisis intervention.
Training of police investigators varies from jurisdiciton to jurisdiction, but more forces are using highly skilled individuals trained specifically to deal with victims of abuse. That specialization is paying off.
"I'ved talked to literally thousands of kids and I get strong feelings about when they're telling the truth," said Detective Michael Mitchell, Salt Lake County sheriff' soffice. "But I'm not a human lie detector. My job is to cover all the bases: see that a psychological assessment is done, talk to the suspect, and, in cases that hold together, put the pressure on. We have about an 80 percent confession rate in my office.
"But we don't arrest everyone and we don't just believe everything we're told," he said. For instance, in March he made five arrests from nine allegations.
"We have to re-educate our investigators that these are forensic investigations, not therapeutic ones," said Bud Ellett, chief deputy of the Salt Lake County Attorney Justice Division. "With experts, we can establish the probability that there has been sex abuse, but not who committed it."
Sexual abuse cases are particularly challenging for prosecution and defense attorneys.
"It is not an easy area for anyone," said Utah Attorney General Paul Van Dam.
"It's difficult with small children. What do you do when you cross-examine them? They're so prone to suggestion. No one wants to deliberately trip them up, yet a clever adult can manipulate them."
Van Dam is pleased that the Utah Supreme Court has recently defined what is and isn't acceptable in prosecuting suspected child molesters.
"The court has given us significant guidance and le tus know they are uncomfortable with experts testifying to the truthfulness of a victim's testimony. I don't find that unusual. You can't do that anywhere else in the legal system," Van Dam said. "This doesn't make child abuse cases difficult. They're difficult anyway."
The attorney general's office is involved in child abuse cases only when county attorneys ask for help. That occurs often, because county attorneys may find themselves short on expertise in such cases.
But the attorney general's office, with three attorneys assigned to child sexual abuse case,s could use more experience itself, he said.
Van Dam said the crime will become more prevalent and compicated in the future.
"Children are much more sophisticated as they get exposed to television and other things. Not only do they know they can report it, they k now it's not right for people to touch them in certain places.
"However, every time you see an older person with a young child you think `hmmm.' I think that's regrettable, but I think it's a natural phenomenon. This is a crime in which the accusation alone is absolutely devastating. At the same time, no child should be subjected to that kind of (illegal) behavior."
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Child sexual abuse cases
Since May, the Utah Supreme Court has issued opinions in seven child sexual abuse cases that redefine and clarify the rules for prosecution.
Defendant: Phillip Rimmasch
Convicted of: sexually abusing 17-year-old daughter over several years.
Basis: Testimony of daughter and expert witnesses. Experts said daughter fit psychological profile of a victim and they believed she was telling the truth.
Supreme Court decision: Voted 4-1 for new trial.
Majority opinion: No physical evidence or scientific basis for allegations. Experts improperly allowed to testify that victim was telling the truth.
Comments: "The fact that child sexual abuse has emerged as a critical problem about which the public is seriously concerned does not mean all legal rules that may constitute obstacles to increasing the conviction and incarceration rates of those accused of such crimes, as opposed to those actually guilty, can properly be brushed aside." -- Justice Michael Zimmerman. Dissenting opinion: "The case was tried to the court, sitting without a jury, and the evidence of the 17-year-old victim, standing alone, is sufficient to meet the state's burden of proof." -- Chief Justice Gordon Hall.
Defendant: Daniel Lawrence Webb
Convicted of: Sexually abusing 18-month-old daughter.
Basis: Jury based its decision largely on the testimony of child's mother, who said she tried to bathe child after Webb had custody. When she lowered child into bath water, child said, "Ow bum daddy."
Supreme Court decision: Conviction overturned 5-0; case dismissed 4-1.
Majority opinion: Mother's testimony of what child said insufficient for conviction.
Comments: "It is beyond credulity that the law could allow a convictino to stand on such evidence. The child declarant was, at the time she made the declaration, was approximately 1 1/2 years old. She could not speak in senences, and she could not carry on a coherent conversation." -- Justice I. Daniel Stewart.
Dissenting opinion: None.
Defendant: Glen Paul Nelson
Convicted of: Sodomy on a 13-year-old boy.
Basis: Testimony of family therapist about statements victim made in out-of-court counseling sessions and concerning whether victim was telling truth.
Supreme Court decision: Granted new trial by unanimous vote.
Majority opinion: Court should not have allowed hearsay testimony from therapist.
Comments: "Although he was able to explain the methodology he used and apparently had personal confidence in it, the state made no attempt to prove that such methodology was reliable." -- Associate Chief Justice Richard Howe. The court did rule that prosecutors should be allowed to use evidence from a separate case in which Nelson was charged with abusing boy's 15-year-old brother, however.
Defendant: John Whitney Smith.
Convicted of: Sodomy on a child.
Basis: Pleaded guilty.
Supreme Court decision: New trial granted by 3-2 vote.
Majority opinion: Lower-court judge failed to make it clear Smith would be sentenced to at least fiv eyears if he pleaded guilty. Smith agreed to plead guilty in exchange for state dropping two other counts of sodomy and sexual abuse.
Comments: "In order for defendant's guilty plea to be valid and in compliance with ... the Utah rules of criminal procedure ... the record must show that he was unequivocably and clearly informed about the sentence that would be imposed." -- Justice Christine Durham.
Dissenting opinion: "It ... appears abundantly clear from the record that defendant's plea was entered knowingly and voluntarily." -- Chief Justice Gordon Hall.
Defendant: Homer Lewis Van Matre.
Convicted of: Molesting girlfriend's 8-year-old daughter.
Basis: Experts testified girl was telling the truth. Girl recanted testimony during the trial, saying she made it up to get investigators to leave her alone.
Supreme Court decision: Voted 5-0 for new trial.
Majority opinion: Experts should not be allowed to testify concerning truthfulness of victim's testimony.
Comments: "... experts may not give a direct opinion about the truthfulness of a child's description of the incidents of sexual abuse." -- Justice Christine Durham.
Defendant: Dennis P. Bates.
Convicted of: Two counts of rape of a child.
Basis: Testimony of experts and a social worker.
Supreme Court decision: Voted 5-0 for a new trial.
Majority opinion: Social worker should not have testified about whether victim was telling the truth.
Comments: "The other evidence against defendant was not overwhelming. The jury acquitted him of one of the three counts. We cannot say that the erroneous admission of (social worker's) opinion did not affect defendant's substantial rights." -- Justice Richard C. Howe.
Defendant: James Lamper.
Convicted of: Sodomy and sexual abuse of a child.
Basis: Testimony of experts who examined child and videotape of child's testimony, whoch contradicted her testimony at trial.
Supreme Court decision: Conviction upheld 5-0, with four justices finding the error "harmless" and one saying there was no error.
Majority opinion: Videotaped testimony should have been accompanied by findings supporting reliability of child's out-of-court statements, according to a state law. This error did not change outcome of trial.
Comments: "We agree with Lamper's first contention but conclude that the error was harmless." -- Justice Michael Zimmerman.
Dissenting opinion: Justice Christine Dunham agreed the conviction should be upheld, but also said she felt she thought the videotape was admissible at trial.
"... It is ironic that this court now uses a statute intended to facilitate child abuse prosecutions in a fashion which will render inadmissible evidence that would otherwise pass muster under the rules of evidence if the statute did not exist. I believe we will have to confront this problem directly in the future."