The Legacy of the Witch-Hunt Narrative (2024)

The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children

Ross E. Cheit

https://doi-org.libproxy.ucl.ac.uk/10.1093/acprof:oso/9780199931224.001.0001

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2014

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9780199355853

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9780199931224

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The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children

Ross E. Cheit

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Ross E. Cheit

Ross E. Cheit

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https://doi-org.libproxy.ucl.ac.uk/10.1093/acprof:oso/9780199931224.003.0009

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Cheit, Ross E., 'The Legacy of the Witch-Hunt Narrative', The Witch-Hunt Narrative: Politics, Psychology, and the Sexual Abuse of Children (New York, 2014; online edn, Oxford Academic, 16 Apr. 2014), https://doi-org.libproxy.ucl.ac.uk/10.1093/acprof:oso/9780199931224.003.0009, accessed 23 May 2024.

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Abstract

The final chapter examines recent developments, addressing three questions: What is the significance of well-known sex abuse scandals involving the Catholic Church and Pennsylvania State University? How has the word of a child fared since 1995? What are the continuing effects of the academic battle over child suggestibility? The chapter argues that recent scandals are not easily generalized. Although there have been some signs of overreacting to sex offenders who have finished their prison sentences, there is also evidence of continuing underreaction to sexual abuse in general. Moreover, those who originally argued that child suggestibility claims belong only in cases with extremely coercive interviewing are now applying those arguments in cases with strong corroboration and without coercive interviews. There has also been a surprising effort to undermine the professionals who provide front-line services to victims of child sexual abuse. Thus the witch-hunt narrative continues to endanger children.

Keywords: child sexual abuse, child suggestibility, Catholic Church, Pennsylvania State University, Megan’s Law, Child Abuse Prevention and Training Act, National Center for Reason and Justice, James Marzolf, Robert Ardolino, Desmond Rouse

Subject

Criminal Procedure Criminal Law

Collection: Oxford Scholarship Online

The triumph of the witch-hunt narrative rested on arguments that have implications well beyond those specific cases. The point of Jeopardy in Courtroom was to convey a view of child suggestibility, not to get to the bottom of the cases studies used as illustrations. What those cases purported to illustrate were general arguments about child suggestibility and children as witnesses. To others, the witch-hunt narrative was compelling because it encompassed a political argument about the overbearing role of government in child protective services, or it expressed a political view about the abuse of power by police and prosecutors. Together, those arguments helped convince people that the witch-hunt narrative was fitting, even when the facts did not support it. The implications, I argue below, extend far beyond those cases and that era. This worrisome legacy of the witch-hunt narrative is elaborated in the second part of this chapter.

But first, there are other recent developments to consider. Even if one agrees with the argument of the previous chapters—that the witch-hunt narrative about the 1980s and early 1990s was misplaced in its time—several recent developments arguably contradict the claim that those arguments have continuing impact today. The highly publicized scandals in the Catholic Church and, more recently, at Penn State seem to demonstrate the ability of our society to recognize and confront sexual abuse without crying witch-hunt. Moreover, there is evidence in how we treat sex offenders after they are released from prison that seems to demonstrate an overreaction to sex offenders. Developments since the enactment of Megan’s Law in 1996 and the rise of civil commitment laws appear to be overly punitive, bearing out a kind of hysteria or overreaction. Finally, a prominent group of academics and activists argue that witch-hunt-like cases continue to this day. The significance of these three arguments is analyzed in the first part of this chapter.

The second part of this chapter elaborates the worrisome legacy of the witch-hunt narrative: three lingering effects that are underappreciated, understudied, and potentially quite adverse to the protection of children. This legacy stems from the same arguments that helped convince people that the day-care abuse cases were baseless, regardless of the merits. These arguments are alive and well in the contemporary era. They have resulted in a discounting of the reality of continuing day-care sexual abuse. More significantly, they have promoted a general but unwarranted view that children are highly suggestible, that delayed disclosures of sexual abuse are suspect, and that child-abuse professionals constitute a dubious “child abuse industry.” In this way, the witch-hunt narrative continues to undermine the credibility of children as witnesses and the institutions that are supposed to respond to the sexual abuse of children.

Recent Developments

Several recent developments contradict the general story of underreaction, minimization, and denial that comprises much of the argument in the last six chapters. A lot has changed since 1995. There have been high-profile cases in involving the Catholic Church and, more recently, Penn State. There have also been crusades of a sort against sex offenders who have completed their prison sentences, suggesting what might be called moral panic. Some also claim that the witch-hunts continued into the contemporary era. This section examines all three of these developments. The Catholic Church cases and the one involving Penn State are both important, but the lessons are much more limited than is widely acknowledged. The crusade against sex offenders is real, and it is worrisome. It focuses too much attention on this population, most of it ultimately counterproductive—but these measures attract strong political support, particularly from conservatives. Finally, the claim that the witch-hunts have continued is not supported by available evidence.

Cases Against the Catholic Church and Penn State

Child sexual abuse is no longer associated with day-care cases. Since those cases faded from public view, there were years when the media coverage of child sexual abuse was minimal. Then a new focus emerged: sexual abuse by Catholic priests. The criminal trial of Michael Jackson generated significant publicity in 2005, but that coverage was fleeting and it did not have nearly the magnitude of the stories in 2002 about sexual abuse by priests.

Those stories were driven largely by civil lawsuits against the church, although there were also criminal cases and grand jury investigations in some jurisdictions. Hundreds of millions of dollars have been paid to victims and more than one thousand priests were removed from their positions as a result of these cases. Documents unsealed in civil cases in Boston in 2002 contained evidence that “Church officials knew about [Father John] Geoghan’s pedophilia,” which was responsible for more than one hundred victims.1Close There were almost daily stories about these cases in the Boston Globe that year. The uproar over these stories created news of its own. Pope John Paul II summoned all of the American cardinals to the Vatican in the spring of 2002 for an emergency meeting on the matter, in no small part because of this publicity. The U.S. Conference of Catholic Bishops met in Dallas in June 2002, under enormous media scrutiny and with the stated intention of approving, for the first time, mandatory rules for how all 194 dioceses in the United States should respond to allegations of sexual abuse. The policy included provisions for mandatory removal of priests who sexually abuse children, reporting to prosecutors, and reaching out to victims. The adoption of this policy must be recognized as a significant event. Through civil litigation, some enterprising lawyers in Boston managed to obtain a surprising measure of accountability from an institution that was historically afforded significant latitude by public officials, including law enforcement. As the Globe reported it, “a culture of deference that had taken more than a century to evolve seemed to erode in a matter of weeks.”2Close

That does not mean the story was an unmitigated success. The institutional changes adopted in Dallas were not as strong as some thought necessary, and there are forces within the Church hierarchy that remain resistant to these reforms. Indeed, the Vatican expressed the view that the policy adopted in Dallas did not do enough to protect accused priests. By November, the bishops agreed to a narrower definition of sexual abuse, a less burdensome reporting requirement, and a 10-year statute of limitations.3Close It is unclear how well these guidelines have actually been implemented. Moreover, there are several reasons to think these developments say little or nothing about social and legal responses to child sexual abuse in general.

There are three reasons to temper the application of any conclusions about these cases to the broader context of child sexual abuse. First, priests represent a kind of other. They wear robes and they take celibacy vows. As disturbing as it is to think that a priest could sexually abuse a child, their otherness also makes this thought less threatening and more believable. Add to this the celibacy vows, which many think contribute to priests finding a sexual outlet with children. The issue of celibacy vows has become so mixed up in the discussion of sexual abuse by priests that one might lose sight of the fact that far more child molesters are married men than are unmarried priests. A second distinguishing feature of these cases is that the victims were largely male, both in numbers and in voice. And in many cases it is an adult voice, not a child; the leading voices in 1992 (Frank Fitzpatrick) and 2002 (Greg Ford) were adults. They were far less likely than anyone else to be cast as untrustworthy. Nobody argues that a man would fantasize such a thing, or that he might be acting hysterically. Accordingly, most people took the view that these allegations were credible.

Finally, there was a very particular reason these cases exploded in the media in 2002: documents produced through civil litigation proved the extent to which bishops and cardinals transferred priests from one place to another with sufficient knowledge of their abuse histories to know they would be placing children in danger. There was a cover-up. The story of institutional betrayal drove the widespread media coverage in 2002. There had been limited coverage of lawsuits about priests molesting children as early as the Gauthe case in 1984.4Close But the cases from Louisiana were considered “anomalies being blown out of proportion by anti-Catholic elements.”5Close They generated only brief coverage. The McMartin case was, at that time, fast defining child sexual abuse in America. There was a much larger cluster of these church-related abuse stories in 1992. The Church viewed this publicity as so unfair that Cardinal Bernard Law famously called down God’s power “on the media, particularly the Globe.”6Close The Cardinal got his wish, for a time. There was a significant lull in stories about this topic for almost ten years, mostly because documents from the civil cases were sealed. When nearly ten thousand pages of documents became public in January 2002, it was clear that the Church had sought to protect its reputation by covering up sexual abuse for decades. That made this a major story. Since the Watergate scandal in the 1970s, it is clear that any cover-up as broad and well-documented as this one will generate significant media attention. The recent events at Penn State bear this out.

What has come to be known as the “Penn State scandal” received massive media coverage in 2011 and 2012. It has largely been a story about justice and accountability. But it was also a story about a cover-up. Jerry Sandusky was convicted in a criminal trial that most observers considered fair and convincing. Efforts by the defense to impugn the testimony of various victims by questioning their motives were unsuccessful. Nobody was distracted by the defense critique of some interviews in the case. Sandusky received a long sentence, and Penn State will apparently pay more than $40 million to settle civil suits by victims. Beyond this, the Freeh Report, commissioned by the university, laid out stark conclusions about the failure of university officials to take appropriate action. The report would have its detractors, but many people welcomed the frank tone and the strong conclusions. The report inspired the NCAA to craft its own wide-ranging penalties, agreed to by the university, including a $60 million fund for child abuse prevention programs. As important and generally uplifting as the developments in this case, it is important to recognize several features that help explain why the case attracted so much attention but was not highly controversial in outcome. These are all factors that limit the applicability of the recent developments to anything beyond the case itself. First, the case did not involve child witnesses. It was adults testifying about what happened to them as children. The case might have been quite different if it had hinged entirely on the testimony of boys age eight to thirteen. Second, the criminal case included an adult witness, the graduate assistant who reported the matter to Coach Paterno. Although there was disagreement about what precise words he used in warning the coach, the point remains that one does not report inconsequential events in this manner. There was also a janitor mentioned in the Freeh Report who declined to report what he saw, for fear of retribution. So the case did not stand entirely on the word of children. Moreover, there was a cover-up. In this way, this story is much like those that drove coverage about the Catholic Church in 2002. It is unclear whether all the attention even led to significantly better procedures or whether it decreased the degree to which this kind of abuse was tolerated in the Church. After ten years, the jury is divided, to say the least. Some think there has been significant slippage in the commitment of the Catholic Church in recent years. And as welcome as many of the developments at Penn State are, the Penn State case was also unusual in many ways.

More broadly, we know that the newfound vigilance against child sexual abuse in the Catholic Church and at Penn State did not permeate the culture. Anyone familiar with the Catholic Church and Penn State stories has to wonder, What institution will next be shown to have covered up the sexual abuse of children? Two recent cases in the Los Angeles School District demonstrate the continued vitality of institutional dynamics that minimize and deny sexual abuse. Both involved sexual abuse by elementary school teachers that went undetected for years. The first case involved Mark Berndt, who had been teaching for thirty-two years and was first apprehended as a result of dozens of photos of blindfolded children that he had commercially developed. Criminal charges are still pending at this writing, but the school district has already agree to pay $27.2 million to settle dozens of civil claims. What is most chilling about Berndt’s case is that children reported some his bizarre activities and were reportedly told by a school counselor that “it’s not very good to make up stories.” Also worrisome is the fact that Berndt was the subject of a criminal investigation in 1993, when a female student reported he tried to fondle her. Prosecutors dropped the matter, stating that “the evidence was insufficient to prove a crime occurred.”7Close The second case involved Paul Chapel III, a third grade teacher, who later pleaded guilty to thirteen counts of a lewd act on a child, one for each victim.8Close A civil complaint against the school district claims it had sufficient knowledge to have known that Chapel should not be in a classroom. He lost a civil case in 1987 involving the showing of a sexually explicit video to students. Moreover, he was prosecuted in 1997 for molesting an eight-year-old girl and was placed on administrative duty during those proceedings. But the criminal trial ended in a hung jury, the prosecutor decided not to retry the case, and Chapel was allowed back into the classroom, where, as he later admitted, he went on to molest thirteen students between 2006 and 2010. Both of these cases demonstrate the extent to which child sexual abuse lives on in institutions that one might think had long since confronted and addressed the problem. It has, after all, been a matter of public discussion since 1983, when the McMartin Preschool case began nearby.

Megan’s Law and Sex-Offender Politics

A second major development related to child sexual abuse in the contemporary era is the nationwide increase in laws and policies targeting sex offenders. The 1990s were marked by the adoption of sex-offender registration, community notification systems, residency restrictions, and the use of civil commitment. Sex-offender registration provisions were incorporated into federal law in 1994 through the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Act. Federal law was amended two years later with the adoption of community notification provisions modeled after Megan’s Law from New Jersey. Those provisions were “enhanced” ten years later by the Adam Walsh Protection and Safety Act of 2006, which provides for wider dissemination of information about sex offenders. Although states have differing version of these systems, the use of registries and community notification became nationwide in the 1990s. Residency restrictions and civil commitment are also important developments in the post-Michaels era, but neither has been nationwide. Some residency restrictions are adopted at the local level; others are statewide, such as the provision in many states that registered sex offenders cannot live within in a specified proximity of schools or parks. Nineteen states have adopted systems for civil commitment.

All of these policies have been criticized extensively in law review articles and other academic literature. Psychiatrist Richard Krueger, in an editorial in the Los Angeles Times, called these developments “the new American witch hunt.”9Close They are widely seen among scholars from various disciplines as an overreaction that is based on social vilification of sex offenders rather than evidence-based arguments about the efficacy of the policies. This is hardly surprising given how so many of these “tribute” laws originated. Megan’s Law is probably the best-known example. It was signed into law less than three months after Megan Kanka was murdered by a neighbor who had prior sexual abuse convictions. The defendant had not yet been tried when the law was passed. There are a host of similar laws, such as Jessica’s Law in Florida and Ashley’s Law in Texas, that were enacted quickly and without serious debate in order to demonstrate some kind of government response to a tragedy.

The evaluation research on community notification systems is mixed at best. An early study in the state of Washington concluded that notification did not have an effect on recidivism but offenders subject to community notification were arrested more quickly than those in the comparison group.10Close A more recent study found evidence that might demonstrate a strong effect in recidivism rates, but the study had enough qualifications that more research is necessary.11Close There have also been several studies finding these policies have no effect on recidivism rates.12Close Critics of these policies often display little or no sensitivity to the dynamics of child sexual abuse by placing great significance on the fact that sex offenders tend to have a low recidivism rate. This simple comparison to the recidivism rates for other crimes would make sense if all crimes had an equal chance of detection. But child sexual abuse is secretive by its nature, and disclosure often does not occur during childhood. There are no serious felonies as underreported as is child sexual abuse. This fact should affect how one interprets recidivism rates across crimes. Indeed, “correcting” for this dynamic significantly changes any analysis of sex offender registration laws.

Although the benefits of these policies remain unclear, the monetary and administrative costs in keeping a large database accurate and accessible are significant. (There are sixty-three thousand offenders in the database for California.13Close) Some have raised concerns about vigilantism.14Close Even if the concerns have been exaggerated, the benefits of sex-offender registries are mixed, at best. The evidence concerning the efficacy of residency restrictions is even weaker. The benefits seem to be nonexistent, but the (indirect) costs can be significant. These policies find little or no support in the community of professionals who treat sex offenders. A recent collection of scholarship by criminologists concludes that “the misguided and deleterious consequences of residential residency restrictions” call for elimination or dramatic change of these policies.15Close Public support for these policies, however, is strong. This support bears out the idea that the policies are driven by extreme attitudes of sex offenders as “monsters.”

This argument fits community-notification laws and a related development in the 1990s: the rise in civil commitment statutes for those labeled as “sexually violent predators.” These statutes provide for varied processes, by state, for deciding whether a sex offender is considered sufficiently dangerous to be held after completion of their prison sentence. Typically, the determination must be renewed every two or three years. Civil commitment is extremely expensive, costing three or four times the already high cost of incarceration. Given the costs and the procedural hurdles, only a small percentage of incarcerated sex offenders are ever subject to civil commitment. Sociologist Chrysanthi Leon documents that “just over 2% of the initial referrals were civilly committed” in California, which has the largest program in the country. Between 1998 and 2002, an average of about sixty people per year were admitted to civil commitment in California. A New York Times investigation in 2006 concluded that a total of 3,493 men had been confined nationwide under these laws.16Close (Approximately two hundred times that number are subject to sex offender registration.)

The strongest objections to these civil confinement laws are ideological. This makes sense since the number of people actually subject to civil commitment is small. To the disbelief of many civil libertarians, the U.S. Supreme Court upheld these laws in 1996 (by a 5-4 decision) against a constitutional challenge in Kansas v. Hendricks. The topic is so ideologically charged that there has been little attention paid to how civil commitment is actually being used.17Close Are offenders being held without strong evidence of dangerousness? Or are offenders with strong evidence of dangerousness failing to be held? Both could be true, of course. Neither is easy to study given the small number of total cases. The number of people subjected to civil commitment nationwide every year is probably smaller than the number of people who sexually abuse children in day-care settings. Either way, it is fair to say both of these groups have, in their own time, received a disproportionate amount of attention in public discourse.

The rise of civil commitment programs and the increased use of community-notification laws are both products of the pernicious politics of sex-offender policies in modern America. The rigid “law and order” positions that largely defined the public discourse over crime policy in the 1970s and 1980s have faded as crime rates have dropped. But the area of sex offenses, particularly against children, is one of the last bastions of these politics. Elected officials want to portray themselves as “tough on sex offenders.” Conversely, there are cynical efforts to paint one’s opponent as weak on sex offenders. Republicans maneuvered a vote during the recent health care debate that was portrayed as “Viagra for child molesters.”18Close Beyond posturing, there is the problem that ratcheting up laws to demonstrate “toughness” can be counterproductive. The most recent efforts to “improve” community notification provisions under the Adam Walsh Act include notifying employers and the public where sex offenders work. These provisions seem likely to make it harder for those released from prison to find and maintain jobs, which is counter-productive to the goal of a safe transition back to society. But political forces make it unlikely that any elected official will voice those concerns for fear of being portrayed as “weak” on sex offenders. In short, the critique of overly punitive policies concerning sex offenders is well taken. The laws are dubious in many respects and often the product of shameless politicking.

While many people express dislike, even hatred, of sex offenders when asked about the subject in the abstract, it is important to remember that such attitudes can coexist with the embrace of perpetrators in specific cases. Leon reveals how the “moral panic” over sex offenders that is reflected in media stories between the 1930s and the mid-1950s did not translate into increased arrests and convictions in criminal court, which seems to be assumed in so many academic writings.19Close The “desire to protect reputable citizens” in specific cases, Leon explains, often trumps the general desire to treat child molesters severely. In the contemporary era, though, punishment is seen as the overriding quality of the criminal justice system. It defines much of the scholarship about the era.

Actual punishments in the post-McMartin era have not been as strict as is often claimed. Though commenters continue to emphasize the “punitive” treatment of sex offenders, these perceptions seem to be driven by highly publicized cases rather than aggregate data. Harsh sentences are publicized; lenient ones prevail. This is what I discovered after testing Richard Gardner’s claim that our country has become so hysterical over the sexual abuse of children that child molesters receive longer sentences on average than murders. Admittedly, this claim, if true, would constitute strong evidence of an unreasonably punitive approach toward sex offenders. But Dr. Gardner was off by a factor of hundreds.20Close Professor Theodore Cross and colleagues, in their meta-analysis of child abuse prosecutions, found that the incarceration rate for child abuse cases was “lower than all three comparison categories and significantly lower than violent crimes and rape and sexual assault.”21Close

There is little reason to think that the overreaction to sex offenders’ being released from prison translates into greater willingness to report or act on suspicions of sexual abuse. An eight-month investigation by two reporters at the Arkansas Democrat-Gazette examined allegations of sexual misconduct against school teachers. They concluded, “When teachers are accused of sexual misconduct, some school officials and school boards quietly sidestep legal and ethical issues to protect their schools from scandal.”22Close The study was published in 1996, four years after Gardner flatly asserted it is “no longer the case” that those revealing sexual abuse will be met with a disbelieving community. Gardner claimed the opposite was true, that police and child protective services were more likely to “accept as valid even frivolous and absurd accusations.”23Close But Hargrove and Roth found that “sexual allegations by students have been greeted with shrugs, although a teacher’s files indicated previous sex-related complaints.”

There is no reason to think this phenomenon was peculiar to Arkansas. Indeed, in a more recent case from California, an appellate court declined to hold the Anaheim School District liable in a case where there was, as the court agreed, “evidence of obliviousness—perhaps the better word would be cluelessness—on the part of several of the district’s teachers” who might have surmised sexual abuse had they “put two and two together.”24Close The case has been described as encouraging a see-no-evil ethic.25Close That ethic stands alongside the punitive attitudes toward convicted sex offenders.

Overreaction at the back end of the criminal justice system—when sex offenders complete their prison term—is politically easy. We have been doing it with sex offenders since the 1990s through sex offender registries and related policies such as residency restrictions. These policies accomplish little in the way of public safety. But there is an enormous difference between being tough on incarcerated sex offenders upon release and confronting sexual abuse at the moment a child discloses it. Confronting the problem as a whole would require acknowledging the fact that most child molesters remain unapprehended and that most child sexual abuse is not reported. But proponents of the witch-hunt narrative would apparently rather challenge the evidence than agree that Roland Summit was correct when he wrote that child sexual abuse has two important preconditions: secrecy and helplessness.

The paradox of the contemporary sex offender in America is that we treat the group with leniency in many ways—failing to report suspicions, rallying around “upstanding” defendants, and meting out lenient punishments on many occasions—but we overreact about their release from prison. This gives an appearance of severity. Politicians have managed to exploit this in various ways. The appearance is also useful as a social salve since we are so willing to ignore child sexual abuse in the specific. The witch-hunt narrative glosses over the issue, just as scholars who characterize the modern era as a “punishment boom” miss the myriad ways in which the criminal justice system continues to be surprisingly lenient in child sexual abuse cases.

Persistent “Witch Hunt” Claims

The witch-hunt narrative described in this book revolved around cases from the McMartin era. But there have also been persistent witch-hunt claims in the years since then. Those claims have not received the publicity of the cases from the McMartin era; nor have they been grouped together by a common feature such as the day-care setting. Nevertheless, the cases have been offered as evidence of continued overreaction to child sexual abuse. Indeed, some of the same activists from the Day of Contrition—an event held in Massachusetts in 1997 that sought to link many of the cases discussed in this book directly to the Salem witch trials of the 1690s—formed a non-profit organization with the Orwellian name the National Center for Reason and Justice (NCRJ). The NCRJ provides legal assistance and other support to defendants in child sexual abuse cases that they claim were injustices. Their current president is Michael Snedeker, the defense lawyer who coauthored Satan’s Silence with Debbie Nathan. Nathan and two other writers are on the board of directors. So is Professor Elizabeth Loftus, the highly acclaimed memory researcher. One of the first cases that the NCRJ sponsored (which apparently means providing support with legal fees) was that of Frank Fuster, the subject of Chapter Six. The NCRJ sponsors a number of lesser-known cases discussed in Chapter Three, including Robert Halsey, Lynn Malcom, Francis and Daniel Keller, and Nancy Smith and Joseph Allen. The NCRJ also sponsors a host of defendants from more recent cases. There is no question that defendants in child sexual abuse cases continue to claim they are victims of a witch-hunt.

What kind of evidence is there to support the witch-hunt claims that have emerged since the Michaels case? Eight examples are discussed here. This assortment of cases comes from a variety of sources, including writers Debbie Nathan, Mark Pendergrast, Thomas Sowell, activist Carol Hopkins, and the NCRJ. Some of Robert Rosenthal’s recent appellate cases are examined as well, since he has claimed that his own practice is made up of defendants who experienced grave injustices in child sexual abuse cases. (Rosenthal represented Kelly Michaels and Frank Fuster at the appellate level.) These sources should yield the bess possible evidence of modern witch-hunts. But in all eight of these examples, it appears that the witch-hunt claim is overblown and distorts or entirely overlooks significant evidence of guilt. Accordingly, these cases are most notable for what they demonstrate about the continuing political interest in rallying around defendants, regardless of the facts, in child sexual abuse cases.

Neil Shumate

Neil Shumate was a popular kindergarten teacher in Pleasanton, California, which makes the origins of his case all the more surprising. A first-grader at Fairlands Elementary School, named Kimberly, told a yard-duty teacher, in a conversation about which teachers they did and did not like, that she did not like Shumate because he “puts his hands down my pants.”26Close There was no doubt in the teacher’s mind as to what the girl said or meant. Indeed, the teacher knew she was duty-bound to report suspected abuse to the principal. The principal spoke to Kimberly and her older sister, Cathleen. Cathleen apparently reported that Shumate had touched her bottom on many occasions. On the basis of those statements, the principal made reports to the police and child protective services. Through the investigation that followed, it emerged that this was not the first time such complaints had come to the principal. But it was the first time she called law enforcement.

The police investigation began with the original two sisters and expanded to other kindergarten, first-, and second-grade students. In additional to the original girls, four other children reported sexual touching by Shumate inside their outer clothing. A complaint was filed soon thereafter charging him with seven counts of child molestation during 1991–92 and 1992–93. A few weeks later, charges were added in connection with a boy who was in Shumate’s class in 1988–89. Further investigation identified three additional male victims, all of whom who been molested at Shumate’s home while living there as foster children. Two of those boys were added to the criminal charges.

The portrait that emerged of Neil Shumate was of a teacher everyone agreed was “affectionate.” Children often sat on his lap, and he regularly hugged and patted children. He was known for administering spankings on children’s birthdays, one spank for every year. He was also known for giving “slobbery kisses.” A room mother raised concerns with Shumate and others that he was “too affectionate.”27Close But he also had a following of admiring parents and teachers. Even so, a mother who weighed in against Shumate’s being imprisoned told authorities she was uncomfortable when helping in his class because of how he physically handled children. She hoped that he “got help.”28Close

Shumate would argue on appeal that “touching [was] an inextricable part of teaching kindergarten” and that five-year-olds “need help with zippers and belts and shirttails on a daily basis.”29Close But those kinds of innocuous actions were not the nature of the claims against Shumate; he was charged with rubbing penises and buttocks, over the clothing or over the underwear, and sticking his fingers inside children’s pants and underwear.

The children testified at trial and were subject to cross-examination. The defense presented Lee Coleman, who testified for Frank Fuster, to criticize the investigation and opine that the children were not reliable. A brief exchange in cross-examination revealed the extreme implications of Coleman’s position. When asked if he had ever conducted an interview of a child for the purposes of determining whether or not the child had been molested, Coleman said “absolutely not” because doing so “would be a contradiction of everything” he believes.30Close He holds it is impossible to “get at the truth of whether a child was molested by a psychiatric examination.” In short, he does not believe in interviewing children. It is no wonder he always has something to say for the defense in cases where, inevitably, children have been interviewed.

The biggest surprise at trial was Daniel Bromberg, who had been an aide in Shumate’s class in 1981 and testified about a conversation that opened with Shumate saying “You like boys, don’t you?” and included Shumate describing how he tries “to be as affectionate with the girls as with the boys” in case the parents of any boys complain.31Close Bromberg’s testimony was particularly compelling because he had pleaded guilty to child molestation elsewhere two years later. Shumate’s defenders have claimed that this case amounts to making it a crime to be an affectionate teacher. But an examination of the charges and testimony demonstrates that this case is about much more specific touching than is normal, and that Shumate’s history was filled with red flags, minimization, and denial. The case began with a spontaneous disclosure, and a quick investigation turned up multiple other charges.

Shumate was convicted by a jury of all the charges. Immediately after his conviction, he tried the innocence-by-association approach, filing these items with the court: Nathan’s Redbook article about the Kelly Michaels case, several of Rabinowitz’s Wall Street Journal articles about the Amirault case, and some printed copy from Jonathan Harris’s internet Witch-Hunt Information Center. The site contained a list, prepared by Nathan, of cases with allegedly “compelling evidence” of false convictions. Shumate’s name was on the list, although he was not included on the dedication page of her book with Snedeker. Shumate also received a surprising level of support from the community. Before sentencing, the court received more than four hundred letters from parents and teachers “stating emphatically that [Shumate] is incapable of such crimes.”32Close (An almost equal number of people signed a petition urging a strict sentence.) Shumate’s conviction was upheld on appeal.

Christopher Ferrara

Christopher Ferrara was introduced sympathetically by Carol Hopkins at the “Day of Contrition” in Salem, Massachusetts. Ferrara had recently been released from the New York prison system, where he served four years for attempted first-degree sexual abuse. He had been a special deputy in the “Officer Bill” program of the Wyoming County Sheriff’s Department, visiting schools and, according to one news story, warning children about “the dangers of talking to strangers.”33Close Ferrara was indicted on seven felony counts of first-degree sexual abuse involving boys between nine and fourteen. Ferrara brought boys to his apartment and sometimes “bathed them” and gave them presents. His defenders classify these acts as befriending underprivileged boys. But nobody has explained why a twenty-five-year-old police officer would be “bathing” a fourteen-year-old boy—underprivileged or not—in his apartment. Ferrara served his full sentence because he was unwilling to admit to the parole board that he committed any crime. He was introduced at the event in Salem as a witch-hunt victim who “had not yet had his conviction overturned.”34Close

This is not surprising, since his conviction was the result of a guilty plea.35Close What is surprising is the unquestioning acceptance of Ferrara by those at the Day of Contrition. Child molesters often emphasize how they never intended any harm. They view their sexual activities as love or education. This may well be true for Christopher Ferrara, and that would undoubtedly be useful information for the purposes of sex-offender treatment. But treatment is meaningless for those who deny their crimes. And the misguided thinking that may help explain how or why Ferrara talked himself into giving young adolescents baths in his apartment is irrelevant to the question of innocence or guilt. Those promoting the witch-hunt narrative at the event in Salem, however, were apparently too intent on their political cause to exercise skepticism or seek to verify claims.

Robert Lawton

Another one of the lesser-known people introduced as a witch-hunt victim at the so-called Day of Contrition is Robert Lawton. Carol Hopkins did not explain why Lawton deserved to be honored, but Mark Pendergrast had earlier associated Lawton’s case, in his book Victims of Memory, with the idea that “little children can be led into stating and believing the most outrageous falsehoods.”36Close Pendergrast did not provide any details beyond the fact that Lawton had been convicted of sodomizing his three sons.

Lawton’s case did not involve young children or repetitive, coercive interviews. The oldest boy was nine years old when he testified, and the case had strong physical evidence. There were deeply disturbing anal findings in all three sons.37Close Dr. Paul Young, a former Burlington area pediatrician who had trained medical students and residents in the areas of physical and sexual abuse of children, testified that the oldest boy, Greg, did not have normal anal findings. There was unusual venous engorgement, physical findings that that were “abnormal and consistent with a history of rectal penetration.”38Close His observations on David were similar, but the engorgement was elevated, suggesting that the injury had occurred numerous times. Dr. Young described this “as a strikingly abnormal finding,” most likely to have been caused by penetration.39Close

Pendergrast implies that Ceci and Bruck’s arguments were responsible for overturning Lawton’s conviction in Vermont. Actually, the court did not rule on those issues; instead, it overturned Lawton’s conviction because the prosecutor went overboard while cross-examining Lawton. But the decision highlights the range of evidence against him: direct testimony, hearsay, and medical evidence. There was also evidence about an event years earlier in California, when the defendant’s brother-in-law walked into a room in his sister’s house and allegedly observed Lawton sitting in the middle of a circle of children with an exposed erection.40Close The prosecutor made three references to that matter during the trial. The Vermont Supreme Court thought the three references were inflammatory. The court agreed that the incident was “probative,” so mentioning it once might have been acceptable. There was also an extended analysis of the motion for acquittal on the charge involving Lawton’s youngest son. The court concluded that the child’s statements were trustworthy and that there was sufficient evidence to support a conviction, but for the overzealous conduct of the prosecutor.41Close

Was Lawton the victim of a witch-hunt, or did a group of academics and activists embrace a man whose three sons all had strong physical evidence of anal rape, whose brother-in-law reported suspected child sexual abuse years earlier in California, and whose wife took out a restraining order against him in order to protect the children? There is no evidence in the appellate record of anything other than overzealousness on the part of a prosecutor who was apparently outraged at Lawton’s misleading testimony on the witness stand.42Close But Lawton was not retried, and the charges were ultimately dismissed, providing an argument for those who would label the case a witch-hunt.

Charles Bighead

Charles Bighead was convicted in 1994 of sexually abusing his daughter, Rita Bighead Eison. She testified that the abuse began when she was seven years old, and that by age eleven she was forced to have sexual intercourse with her father regularly. He would often pay her small sums of money afterward. Bighead was a tribal police officer and was described as “a strict disciplinarian” who punished his children physically and apparently once injured Rita’s eye in the process.43Close When Rita was seventeen years old, she insisted that her father stop his sexual assaults. Later that year, she confided in a tribal police officer about the abuse. This set the wheels in motion for Bighead’s prosecution. The officer was the first adult Rita had ever told about the abuse.

A federal jury eventually heard from Rita, two of her childhood friends, and Tasha Boychuk, the director of forensic services at the Child Advocacy Center in Phoenix. The childhood friends both testified to statements that Rita made at the time about sexual abuse by her father. Boychuk, who testified as a rebuttal witness, spoke only about the general characteristics of sexually abused children, not about Rita in particular. Boychuk told the jury that, on the basis of her experience interviewing more than a thousand children, it is not unusual to delay disclosure of sexual abuse. She was rebutting the defense argument that Rita’s credibility was dubious because she delayed reporting the abuse. Bighead denied any wrongdoing. He was convicted, and his conviction was subsequently upheld 2-1 on appeal.

The dissenting opinion in the Ninth Circuit Court of Appeals was written by Judge John T. Noonan, who was apparently incensed that Boychuk was allowed to testify. Noonan invoked the Salem witch trials and expressed his broad dissatisfaction with various “cultural changes” that have nothing to do with the evidence against Bighead.44Close He also railed against those who would claim or believe in satanic ritual abuse but then allowed that such claims were not actually part of this case. He further relied on Richard Gardner’s Sex Abuse Hysteria to criticize “the kind of persons engaged in the kind of work that Tasha Boychuk is engaged in.”45Close In other words, Judge Noonan took the position that Boychuk, whose psychology doctorate involved a field-based validation study of children’s statements about sexual abuse, had “remarkable bias” because she had professional training and experience with child sexual abuse. The power of crying witch-hunt did not go unnoticed. Thomas Sowell quickly followed suit, editorializing in Forbes about the “legal lynching” of Charles Bighead. Sowell bemoaned how “in some cases, even a daughter’s own denial that anything happened is not enough to override the suspicion and presumptions of social workers.”46Close But this description has nothing to do with the case against Bighead. His daughter was clear and consistent from the moment she disclosed as a seventeen-year-old. What she delayed reporting to any adult she had told to two separate friends during childhood, and both of them verified that fact. Bighead’s case had nothing to do with lynching or witch-hunts, but it nevertheless demonstrates how effective those images can be in mobilizing people with a larger agenda against social workers and “survivors” of sexual abuse.47Close

Elsie Oscarson

Elsie Oscarson was convicted of sexually abusing her two sons in Vermont in 2003. Her case is one of the recent “sponsored cases” of the NCRJ, which places her squarely in the contemporary witch-hunt narrative. Her case was located by Pendergrast, who also lives in Vermont. His limited account of the case—based largely on attending a sentencing hearing and talking to the defendant—provides no evidence on which to conclude that her conviction was an injustice. To the contrary, he allows that it was “a messy case” and that “it may be a good thing that [Oscarson’s] children were taken from her in Tennessee,” years before the case in Vermont.48Close It is not clear why Pendergrast says this since he also apparently thinks that Oscarson was falsely accused in the case. His overall theory is that she has been falsely convicted twice—and that proving the first conviction was wrong might have affected the second case, even though there were far apart in miles, years, and facts.

Is there anything beyond conjecture to support this theory? Pendergrast says there is a memorandum describing the first case as involving “horrendous abuse.” He transforms this phrase into the supposition that this earlier case was a “classic satanic ritual abuse” case, but he does not provide a single quote to back up this charge, and the mystery memo is never actually cited. But this conjecture alone is apparently enough for adherents to the witch-hunt narrative. Oscarson passed muster with the “criteria” that the NCRJ claims to employ before deciding whether to sponsor a case. Daniel Patrick Moynihan worried years ago about “defining deviancy down.”49Close In the contemporary era, it seems that “witch hunts” are being defined down. Little more than a protestation of innocence by the defendant and some assorted innuendo is necessary for many activists, writers, and academics to cry “witch hunt.”

Robert Rosenthal’s cases

Robert Rosenthal, who most famously represented Kelly Michaels and worked with Ceci and Bruck on the “Concerned Scientists” amicus brief, has claimed that cases he and others were recently litigating across the country are “testament” to continuation of “witch hunts” involving child sexual abuse. In a letter to the Wall Street Journal in 2003, Rosenthal claimed that those like Frank Fuster—who is, in his view, wrongfully imprisoned—“continue to be joined by others like them all too often.”50Close He did not mention any of these recent cases by name. But looking at his appellate practice, one finds little evidence to support his claim.

One of Rosenthal’s clients was Jose Serrano, convicted by a New York jury of eighteen child sexual-abuse counts in connection with male foster children placed in his home. Serrano had requested that only male foster children be placed in his house. In 1997, a fourteen-year-old identified as Cody O. reported that Serrano had forced him to engage in oral sex. According to Magistrate Judge Victor Bianchini’s Report years later, “the authorities told Cody O. he was a liar, and ruining a ‘good man’s life,’ and he recanted his allegations.” Another fourteen-year-old, Daniel, reported much the same thing two years later, followed by a third report, by a twelve-year-old named Glen. A police investigation was commenced after a fourth report, in 2000, by a twelve-year-old named Edward. The police interviewed other children who had resided in Serrano’s home, and two other boys reported sexual abuse. They then interviewed Serrano, and he confessed to the abuse of four boys who had been identified by the police, and one who had not. That boy, who was twelve years old at the time, later confirmed he had been sexually abused by Serrano. Beyond the lack of any reason to think it was a wrongful conviction—one of Serrano’s main appellate arguments was to object to his own confession—what is striking about this case is how many children were sexually abused and did not disclose anything at the time.51Close And that some did and were ignored.

Rosenthal also represented Frederick Weber, who had been indicted on thirty-seven counts involving sexual contact with thirteen young girls at his home in Nassau, New York, between 1996 and 2000. Some counts were dismissed for overlapping with each other, others were severed (meaning they would have to be tried separately), and Weber was tried on thirteen counts related to three girls. He was convicted of all counts on one girl, and acquitted on the charges connected to her sister and her friend. Rosenthal argued that the time frame specified in the counts was insufficiently specified and that the trial court should have had a “taint” hearing. The appellate court ruled that the claim of the victims having been subjected to undue suggestion was “speculative” and upheld the conviction, noting that the children and the police investigators had all been subject to cross-examination.52Close Another of Rosenthal’s appellate clients was Tyler Lupoli, who was convicted of sexual abuse charges in connection with four girls outside Portland, Oregon. After an appellate court reversed the decision, Lupoli offered to plead guilty to three counts of attempted first-degree sex abuse and two counts of harassment for intimate touching in order to avoid going through another trial. There isn’t the slightest hint that the gist of the charges against Lupoli was wrongful. He admitted he touched three young girls inappropriately.53Close These are not witch-hunts, and Rosenthal’s arguments are not about factual innocence.

The only possible exception is State v. Carol M.D., the strange case from Wenatchee, Washington.54Close It is strange because one of the children in the case, Susan “Sam” Doggett, ended up in the custody of Carol Hopkins, who had formed an organization devoted to alleged injustices to defendants in child sexual abuse cases. Hopkins, who lived more than a thousand miles from Wenatchee, offered to take custody of the girl, and later she told CBS News she wanted the girl to become “the poster child for the cause.”55Close “Sam” apparently recanted claims against her parents while living with Hopkins. Rosenthal’s successful appeal, filed before the recantation, included arguments that appear to undercut the claim that there was no abuse in the family. His first argument on appeal was against the use of testimony from a counselor to Doggett’s youngest daughter concerning incriminating statements the girl apparently made about her parents.56Close Although excluding such evidence might be appropriate in all fairness to a criminal defendant, it is not the kind of defense that suggests Rosenthal’s client was being subjected to a witch-hunt. Charges were eventually dropped and the Doggetts filed suit in federal court claiming their constitutional rights had been violated by the investigation. U.S. District Judge Alan MacDonald ruled the lawsuit “frivolous” and ordered their lawyer to pay the City of Wenatchee’s legal fees.57Close

The Wenatchee cases at large are similarly complicated. Much like what came to be known as the Jordan, Minnesota cases, the Wenatchee cases are actually a series of loosely connected cases that should not all be grouped under one heading. It would take years of research to examine the cases thoroughly, but there is readily available evidence to suggest that labeling the entire matter a witch-hunt is inappropriate. A local television station broadcast a prison interview with an adult woman who had pleaded guilty and, even after all the criticism of the case, maintained she and other adults had engaged in sexual contact with numerous children.58Close Moreover, a jury in a highly publicized civil trial related to the Wenatchee cases ruled that various public officials did not violate the civil rights of eight plaintiffs. The judge had instructed the jurors that if were “facts that would cause a reasonably cautious office to believe that the person had committed the crime for which they were arrested,” they should rule for the defendants—the public officials.59Close But it is also clear that there were false convictions in Wenatchee, spurred by an overzealous sheriff, Robert Perez, who would later be discredited for his behavior, including the fact that two key witnesses in several cases were foster children in his home. Perez was also accused of trying to coerce children’s testimony and destroying evidence.60Close The false conviction problem has been expounded on in the media and in a book by a defense lawyer, Kathyrn Lyon, called Witch Hunt.61Close What has been lost in those accounts is any sense that some of the cases were well founded, some were rightly not overturned, and some were never even challenged. The witch-hunt narrative about these cases paints with such a broad brush that it cloaks the guilty with the veneer of innocence. David Horsey of the Seattle Post-Intelligencer drew a cartoon about Wenatchee that featured judges, police, and social workers in bed together. It was titled “The Real Incest,” as if the far more widespread type of incest, including Wenatchee defendants who never challenged their convictions, was not real. In this regard, the current discourse has the same imbalance that the witch-hunt narrative brought to cases like those in Jordan, Minnesota, where the tragedies connected to actual abuse were quickly lost to history.

The period of infamous day-care sexual abuse cases ended almost twenty years ago. Yet there are still respected academics, judges, and other professionals carrying the mantle of the witch-hunt narrative. The power of claiming innocence-by-association while employing the rhetoric and imagery of the Salem witch trials is undeniable. Those claims have not met with much success in court, but they have nevertheless helped to mobilize a divergent coalition of interest groups, from father’s rights advocates and the False Memory Syndrome Foundation to defense lawyers and assorted academics. These diverse groups share a strong interest in continuing to promote the witch-hunt narrative.

There is also a significant and unexpected convergence of the left and the right around these issues that helps explain why there have been so few skeptical voices about the witch-hunt narrative. Those on the right rally against witch-hunts on the part of child protective services agencies because they do not think that government involvement in the family is legitimate, even to protect children. Those on the left find the witch-hunt narrative compelling because they are already well versed in the abuse of power by police and prosecutors. Accordingly, there is no skepticism of the witch-hunt claim. Both of these political viewpoints are prone to believe the cry of witch-hunt, even if the evidence is as strong as in the cases against Robert Lawton, Christopher Ferrara, Jose Serrano, and others.

The Legacy of the Witch-hunt Narrative

Discounting the Reality of Day-care Sexual Abuse

The infamous day-care sexual abuse cases occurred in the 1980s and early 1990s. There has not been a highly publicized day-care sexual abuse trial in twenty years. The witch-hunt narrative employs this fact as proof that the original cases must have been baseless, creatures of a particular time and place. As one commenter put it, the “sudden absence of new cases” is evidence that “the tumult has subsided.”62Close But, just as there were day-care sexual abuse cases before the McMartin case (see Chapter Four), there have been day-care sexual abuse cases ever since. It is impossible to ascertain how the overall number of such cases has changed over time. What is clear is that the cases ending up in court are different in two ways. First, prosecutors do not bring massive indictments involving large numbers of children; instead, they are more likely to pare cases down to the strongest counts. Second, if the case goes to trial, it is likely to receive only local publicity; none of the sexual abuse cases in day-care centers since the end of the Michaels case has received significant national coverage. In this way, the perception that these cases have disappeared is actually evidence of a change in our primary window into understanding the issue: media coverage. (Hence the attention earlier in this chapter on the Catholic Church cases and Megan’s Law, major topics of media interest in the post-McMartin era.)

A few examples illustrate the reality of day-care sexual abuse in the post-McMartin era. The Oak Tree Day Care Center case in Yucaipa, Arizona, began in 1997 when Nathan Martindale, who was working in his parents’ day-care center, was arrested after the parents of three children reported possible abuse. Martindale eventually admitted to some of the allegations, including performing oral copulation on the children (a feature deemed fantastic by Charlier and Downing). In a reflection of how prosecutors tend to handle these cases now, the charges were reduced to apply to one child who was considered the strongest witness. The local newspaper—there was no significant media coverage—reported “investigators were having trouble obtaining clear-cut testimony from other young victims.”63Close A decade earlier, many prosecutors would have put those children on the stand. The case would likely have been the kind of perplexing mixture that characterized many in the 1980s, and it might well have been labeled a “hoax.” Instead, it is a little-known case that ended in a noncontroversial guilty plea.

A similar result occurred in the Children City Learning Center case in Reno, Nevada, where Gary Hanneman, thirty-three, was arrested and charged in February 2001 with, among other things, ten counts of sexual assault on a child and one count of using a child to produce p*rnography. Hanneman had been working since 1999 at the center, across the street from the University of Nevada, Reno, campus. Hanneman was well liked, he had no criminal record, and many adults who worked there apparently never saw anything abnormal. He allegedly molested dozens of children over three years without any complaints until the very end of that time. And when the children were finally interviewed, some said “fantastic” things about games with feces. If this had happened in the late 1980s, it would probably be on Charlier and Downing’s list of dubious ritual abuse cases from around the country. But the Hanneman case happened ten years later, at a time when video equipment had gone from expensive and novel to affordable and extremely portable. And Hanneman had videotaped some of his crimes. This is probably why he also quickly confessed to molesting twenty-eight children at the day-care center. When explaining why a plea agreement would spare the families involved, the prosecutor made note of Hanneman’s form of pedophilia, which “involves a fetish with human excrement.” Presumably the videotapes document this supposedly fantastic element. In short, everything about this case that could have been cast as dubious was actually true. Hanneman entered a guilty plea in November 2001. None of the sensational evidence was aired in court, and there was almost no publicity beyond Nevada.

Other recent cases also emphasize the number of victims that can be involved in day-care abuse cases and the number of years such abuse can go still unapprehended in the post-McMartin era. Larry Akins was apprehended in August 2007 for abusing children ranging in age from three to eight over a period of years at the Gingerbread Day Care in Van Buren, Arkansas. He had been operating the center with his wife since 2000. Akins pleaded guilty to charges involving eight children; his lawyer read a statement saying he “took full responsibility.”64Close A similar case, but with a much longer history of untold abuse, unfolded in Ste. Genevieve, Missouri, where William E. Huck, Sr., was apprehended in March 2007 for sexually abusing a four-year-old boy at an in-home day care run by his wife. Huck confessed to the crime and provided “a detailed account of how he engaged in sexual contact with the boy twelve different times.”65Close He had apparently been doing the same thing for almost thirty years without detection. Officials estimated that approximately forty children had been molested. Neither case received significant media coverage.

A final case is noteworthy because it emanates from Wenatchee, Washington, the location of probably the worst excesses in a sexual abuse investigation in the mid-1990s and possibly since. The day-care case had nothing to do with those earlier ones. The defendant, Agustin O. Barragan, pleaded guilty in 2010 to two counts of third-degree assault of a child in an Alford plea that acknowledged that the state had sufficient evidence to convict him. The abuse occurred at the Barragan’s in-home day care in Wenatchee. According to a local newspaper account, Child Protective Services records entered in this case indicate there had been complaints against Barragan in 1994, 1995, and 2003.66Close None of those investigations resulted in any charges or loss of license. Given his eventual admission in the 2010 case, one wonders whether the earlier investigations were dropped in error, the kind of thing that never gets mentioned in the witch-hunt narrative, where “unsubstantiated” is frequently conflated with “untrue.”67Close

These anecdotes illustrate the continued existence of sexual abuse in day-care centers. They also demonstrate something about the power of the secrecy and related forces against children disclosing such abuse even in the post-McMartin era. They all involved multiple victims, and yet none were quickly exposed. The fact that prosecutors are savvier and the media is less obsessed with these cases is beneficial. What is unclear is whether those improvements occurred alongside a decrease in the likelihood of investigating and prosecuting sexual abuse in day-care settings. The question is impossible to answer with existing data sources. There is no national archive of data on state prosecutions of this crime, and the state-level data from Child Protective Services agencies are scattered and tend to lump day-care abuse into the broader category of “institutional abuse.” Nevertheless, there are a variety of reasons to postulate that the official number of cases involving day-care centers has gone down more than the actual incidence of such abuse.

First, original data obtained from DYFS in New Jersey suggest a worrisome trend. There were twenty-five cases of substantiated sexual abuse in day-care centers in New Jersey in 1986. One of those involved Wee Care in Maplewood, New Jersey (the Kelly Michaels case), and that year was the high water mark. There were ten substantiated cases in 1992 and nine in 1993, the year the Michaels case was overturned on appeal. The following year, there was only one substantiated case statewide. There were none in the three years after that. From those data, it would appear that either sexual abuse in day-care centers stopped occurring in New Jersey after 1993 or it stopped being investigated and recognized. There is no reason to think it is the former and there are very specific reasons to think that DYFS might try to avoid such cases in the years after Michaels. These data from a single state over ten years need to be supplemented by studies of multiple states in more recent years.

Second, empirical studies of case flows in criminal courts bear out the hypothesis that cases with younger children are more likely to be dismissed by prosecutors. Stroud and her co-authors in New Mexico conducted one of the only studies to compare cases referred to prosecutors against those that were not.68Close They found that 32 percent of the dropped cases involved children age four and under, while only 9 percent of the criminal cases involved children that age. In another study, prosecutors accepted 35 percent of the sexual abuse referrals in cases involving children four to six and 69 percent for ages seven to twelve.69Close Ellen Gray’s study of eight jurisdictions across the country described cases involving victims five years old or younger as “notoriously difficult to prosecute effectively.”70Close Not all studies find such a clear result. William Tucker obtained strikingly different results in comparing information from child advocacy centers in Minnesota and Wisconsin in order to analyze the possible effect of age and other variables on the likelihood of a case moving forward in the criminal justice system.71Close But the consensus of existing literature is that cases involving young children are much less likely to move forward in the criminal justice system.

Finally, there is survey evidence that prosecutors have internalized these values. In one survey, 62 percent of prosecutors said “too young” was sometimes or very often a reason for rejecting a child sexual abuse case.72Close Tucker’s survey of prosecutors in eleven states found that, with controlled vignettes, younger age was clearly associated with decrease in likelihood to prosecute.73Close Since vignettes hold facts constant and vary only designated variables, these findings reflect a general attitude about the age of child witnesses.

The concern that screening mechanisms might screen out good cases is rarely discussed in the existing literature in law and psychology, where the implication of the witch-hunt narrative is that day-care sexual abuse charges are “bizarre” and to be discredited. In 2004, Ceci and Bruck wrote that a “disproportionate number of studies of preschool children at the end of the 20th century” was “directly motivated by forensic concerns of the day.”74Close Those concerns were exclusively about defendants, and this book argues they were misplaced. Moreover, an imbalance still exists in the psychology literature. As Professors Tom Lyon and Kathy Pezdek have pointed out, there is much more attention paid to what is wrong with interviews than there is to how to make them better.75Close In the meantime, there are several reasons to be concerned about whether sexual abuse cases involving young children, in and out of day care, are less likely to be acted on now than they were in the 1980s.

Undermining the Credibility of Children

The witch-hunt narrative came out of cases from the 1980s and prevailed in the court of public opinion, in many criminal courts, and in the field of psychology in the 1990s. But what started as a contest over highly publicized day-care cases in the 1980s has turned out to have ramifications far beyond those cases. One lasting effect is in the field of psychology, where the idea that children are “highly suggestible” has taken hold largely because of the persuasive, but inaccurate, portrayal of the Michaels case. A group of activists and academics have mobilized around this narrative to promote various agendas and support cases that seek to discredit children.

The first sign of this political mobilization came when the television program Nightline set out in 1996, a year after the Michaels case was over, to examine whether children’s testimony was being unduly discredited. They wondered whether one effect of the witch-hunt narrative was that it was harder to bring and win cases that were based on the word of a child. This concern had been expressed during the years when Ceci and Bruck’s position started dominating the field. The decision by Gail Goodman and others not to sign the “Concerned Scientists” brief in the Michaels case was based on similar concerns. A single-minded and exaggerated view of child suggestibility was bound to have negative consequences on children as witnesses.

The ABC network quickly discovered there were writers and academics so devoted to the witch-hunt narrative that they mobilized to object to a program about whether children’s testimony was being unduly discounted before the program was aired. There was an organized campaign to discredit Civia Tamarkin, a journalist who contributed to the program and had once been an advisory board member of Believe the Children. Tamarkin had also said, in a speech about ritual abuse cases that was later published in article form, that she was “unequivocally . . . convinced that these crimes do occur.”76Close Peter Freyd, a mathematics professor at the University of Pennsylvania who helped form the False Memory Syndrome Foundation (FMSF), sent an email labeled “Nightline Alert” through the FMSF-News distribution list. The message claimed that Tamarkin was the producer of the upcoming program and the message contained “background information assembled by Debbie Nathan,” along with copies of two separate letters from Nathan to Nightline. In those letters, Nathan painted Tamarkin as espousing “discredited and downright bizarre child abuse theories.”77Close This effort did not succeed in keeping the program off the air, but it demonstrated surprisingly strong resistance to asking questions about whether the witch-hunt narrative has had negative effects.

When the program aired, Ted Koppel began with an unusual preface that gently scolded those who so strongly protested against a program they had not yet seen. Correcting the misimpression that Tamarkin produced or reported the story—she had acted only as a consultant—Koppel expressed the view that the story is “important” and “had been compiled as fairly and cleanly as possible.”78Close The program opened with television footage from a highly publicized case from Broward County, Florida, where two girls had been raped and murdered by a man whose long record of sex crimes against children had been met by lenient, even lackadaisical, responses by the state. On New Year’s Eve 1995, an eleven-year-old girl was assaulted by a man who took off his clothes, carried her into his bedroom, and tried to rape her. They struggled and she managed to kick him hard enough that he stopped. As she left the room, the man said to her: “Tell somebody about this. It was a bad thing that I did; I shouldn’t have done it.”79Close The girl told her father, who filed a police report within two hours, identifying Howard Steven Ault as the assailant. A detective took a taped statement from the girl and her father, and then the case languished for more than ten months.

It was later revealed that Ault was on probation at the time for sexual assault on a six-year-old girl in 1994.80Close He had also been convicted of attempted sexual battery of a twelve-year-old girl in Lauderdale Lakes in 1988. But Ault was not arrested on the New Year’s Eve charges. No action was taken until ten months later, when he was in custody at the Oakland Park Police station in connection with the kidnapping, rape, and murder of two homeless sisters, age eleven and seven. Only then did Broward County detectives—embarrassed by their failure to take the other eleven-year-old girl seriously—rush to try to cover themselves for all those months of inaction. “A Child’s Word” used the case to point out the potential costs of discounting or failing to act on the word of a child. They also quoted prosecutors who argued that it had become more difficult to bring sexual abuse cases because people were unduly dismissive of children as witnesses.

“Distorted Journalism,” Nat Hentoff titled his Village Voice column the following week—the first of two columns he devoted entirely to an attack on “A Child’s Word.” “Why was not a single abandoned case mentioned?” Hentoff protested, labeling the program “propaganda” for asserting that lives had been lost because of the discrediting of child witnesses.81Close Hentoff was apparently unaware that the videotape at the beginning of the program was from the Ault case—a highly publicized case that illustrates in gruesome detail how discounting the word of a child ultimately cost the lives of two children.82Close But their story, which generated considerable publicity when the girls were found murdered, was quickly lost in the popular discourse about child sexual abuse. There has not been a serious engagement of the questions raised in “A Child’s Word,” in print or broadcast, since. There have been flashes of media attention to more recent Ault-like stories, such as the Avila case in California in which Samantha Runnion’s life would have been spared had the word of two eleven-year-old girls been taken more seriously a year earlier.83Close But these grim cases have not generated much commentary or attention to the general question of child credibility and whether the word of a child is too quickly doubted or dismissed.

The same people who objected to “A Child’s Word” gathered the following year in Salem, Massachusetts, for an event they called the Day of Contrition. Held on the three hundredth anniversary of a day of remorse for the Salem witch trials, they could not have been more direct in trying to associate their own causes with the righteousness of being against the witch trials. The event was ostensibly organized by Carol Hopkins, an activist from San Diego who had formed something she called the “Justice Committee.”84Close Her organization generated the most exaggerated estimate of wrongful convictions in the 1980s, claiming there were “thousands” of such cases. Hopkins described the purpose of the Day of Contrition as addressing “the reasons and remedies for the nationwide epidemic of spurious accusations and prosecutions.”85Close The event featured writers, academics, and former defendants connected to all of the major cases in this book: McMartin, Michaels, and Country Walk. Ralph Underwager led a prayer at the event and Richard Gardner, a frequent defense expert in these cases, gave a fiery speech that argued “a whole industry has been spawned” as a result of the Child Abuse Prevention and Treatment Act (CAPTA) and that “hysteria is being fueled by the money.” The audience applauded when he said “children are liars!”86Close

Gardner is perhaps best known for coining the phrase “parental alienation syndrome,” which attributes a child’s statements about sexual abuse, most often in the context of a divorce case, to the “alienation” of the hostile parent, almost always the mother. PAS, as it has come to be known, does not have a scientific basis in the literature, but it had an enthusiastic following in Salem.87Close Supporters of “false memory syndrome,” which suffers from the same problem, were also active participants in the conference.88Close These groups sought to gain credibility and acceptance by associating themselves with the imagery of Salem. That much was public. What was not publicized is that Herman Ohme—an activist with the False Memory Syndrome Foundation, and one of the behind-the-scenes organizers of the event—with assistance from Carol Hopkins and Richard Gardner had been working closely with a staff member of Illinois Senator Dan Coats, a conservative Republican, to water down the Child Abuse Treatment and Prevention Act.89Close They did not succeed in eliminating the statutory mandate to report suspected child abuse, but the larger agenda of these activists endured.

Eileen McNamara wrote a column for the Boston Globe about the Day of Contrition titled “Hardly a Case of Persecution.” Arguing that there is no evidence we are preoccupied with protecting children, she criticized those at the event for seeing “rampant hysteria” where it does not exist.90Close She did not use the strident language of the witch-hunt narrative, but she did experience the same kind of wrath that came down on Koppel when ABC asked whether a child’s word has become unduly discredited because of the efforts of people to associate more and more cases with the imagery of Salem.91Close It was becoming apparent that there was intense opposition to anyone who questioned the exaggerated claims advanced by these groups.

The Marzolf Case: Expansive Efforts to Label Children as “Tainted”

One of the worries of those who opposed the idea of “taint hearings” in the Michaels case was that a process arguably justified by the most extreme cases would be imposed on cases where it did not belong. Taint hearings are a special procedure that allows defendants to argue a child has been so “tainted” by the interview process that the child is not reliable enough to testify at trial; these hearings came about in New Jersey as a result of the Michaels case. The Marzolf case, the first taint hearing held in New Jersey after Michaels, provided the first test of those concerns. The case arose under circ*mstances that would seem to eliminate the need for a taint hearing, to wit, it began when James Marzolf, twenty-nine, had his hands down the pants of his young nephew when the boy’s stepfather, Mark Glazer, walked into the room. Marzolf thought he was alone with the seven-year-old Tyler, on the third floor of an empty house. Glazer testified that after registering what he was seeing, he backed up and announced his presence from the hallway, whereupon Marzolf came out of the room looking startled and saying something about “wrestling” with Tyler.92Close Glazer told his wife about the incident an hour later; they called DYFS the next day and asked advice about what to do. DYFS referred them to the police, who arranged to interview the boy and both parents a few days later.

Tyler was shy and reticent to talk. Most of his answers in the twenty-seven-page interview transcript are single words or phrases. Even so, occasional answers included details that speak volumes. “What did he do with his hand when he touched you?” the boy was asked after he had said he was touched and pointed to his “pee-pee.” Tyler did not respond by saying tickle, or pinch, or something vague; he answered, “He went up and down.”93Close Near the end of the interview, Tyler indicated that Uncle Jimmy bought “special” underwear for him, he got the underwear “from a closet,” the underwear were “too small” for Tyler, and Uncle Jimmy made him wear them when he was “at his house.” When police executed a search, the colorful, “too small” bikini underwear was located in the closet where Tyler said it would be. The boy gave a second statement on September 14 that had much more detail and included additional allegations against Marzolf. Criminal charges were ultimately based on these two statements and the stepfather’s statement about observing the original event.

It seems strange that this case would even be subject to a taint hearing given a level of corroboration that would have allowed it to go to trial even back when the word of a child alone could not sustain charges. Yet the defendant was able to convince a judge to have a taint hearing, referred to as a Michaels hearing by the court.94Close What could possibly be said in a case where the child made a statement promptly and there was an adult witness? As it turns out, Maggie Bruck appeared for the defendant and offered the opinion that “there is a high degree of possibility” that the evidence from the boy is “unreliable.”95Close He was so unreliable, she argued, that the judge should prohibit him from testifying at trial.

Bruck had criticisms of every step of the investigation. She viewed the five days between the initial report and the first police interview as “problematic.” Ideally, she said, the interview should have been done “immediately.”96Close She criticized the first interview as having too many directed questions. She allowed, in cross-examination, that the interviewer was sensitive in this interview, he did not pressure Tyler, and she would not likely have been able to conduct a better interview. Still, she considered it “biased.” As for the much more detailed statements in the boy’s second interview, Bruck opined that “one should really be concerned about the accuracy” of the second interview—because it was the second interview.97Close

The most striking part of Bruck’s position is the contention that disclosing sexual abuse is a simple process normally done in one fell swoop. Referring to cases she “had been involved with” in which she thought there was sexual abuse—but without providing any actual case names—Bruck described the process of disclosure as follows: “it is sort of like the story just comes out and it is there.”98Close Under that view, any child who does not disclose everything in the first interview is apparently suspect. Bruck’s involvement in cases, it should be noted, was not as a clinician. She is not in the practice of evaluating children for suspected abuse or treating children who have been sexually abused.

Bruck also made several critical judgments about the boy’s mother and stepfather. She discredited the account of the stepfather, who said he witnessed Marzolf with his hands down the boy’s pants, on the grounds that he had allegedly changed his story. “I think their reporting two years later just sounded very different to what it was in the police reports five days later,” she asserted. “And I think that the way they present the situation now it looks more—it looks cleaner,” she continued, “than what was in their original statements.”99Close But a direct comparison of the police report on August 25, 1995, and the stepfather’s testimony on May 5, 1997, reveals that the two are extremely consistent.100Close Bruck focused her critique on the mother, who had the most interactions with her son about these events between his first and second interviews with the police. Bruck’s position was predicated on the argument that the boy was “primed” by his first interview because, as she put it, Tyler was “asked to in fact engage in, you know, circling things and showing things on the doll.”101Close There wasn’t actually a doll. Sargent Hassim had a diagram, and he asked the boy to circle anywhere he had been touched. The boy circled the place he called his “wiener.” Bruck cited recent work by Jane Rawls for the proposition, “when children are interviewed with line drawings, that line drawings can increase suggestiveness.”102Close But the Rawls study actually differentiated between open-ended questions and directed questions and found the former to be much more accurate. Those were the kinds of questions Tyler was asked when he was given the line drawing.103Close After this “priming,” Bruck’s argument continued, a certain amount of suggestive questioning from the mother could account for Tyler’s statements in the second interview. How did Bruck justify the conclusion that the mother was likely to have questioned her son in a way that tainted his testimony forever? The passage in which she justified her conclusion reads exactly as follows:

I just—I mean, I can’t be sure exactly what she said, but I think my—my feeling was that there were just enough hints in this record that she had certain fears and certain premises she was asking Tyler about.104Close

Elsewhere, Bruck is adamant that she represents the voice of science, and that clinicians, who do not conduct controlled laboratory experiments, do not. Yet in rendering her professional opinion that a mother’s questions had likely tainted her son forever, Bruck relied on a feeling. That feeling did not strike Judge Coleman as plausible, particularly in light of the mother’s actual testimony.105Close He ruled that the state had presented “clear and convincing evidence that the statement is reliable,” which meant the case could proceed to trial. He based the decision in part on two common-sense ideas that were voiced by the psychologist who testified for the state. First, children are not disposed to believe bad things about someone they love; and by all accounts, Tyler loved “Uncle Jim.” Second, people “aren’t always willing to come forward with all of the information [about sexual abuse] on the first instance.”106Close Disclosures often occur over time; this fact alone should not be taken as suspect. The outcome in this case was sensible enough, but one wonders whether it also means any defendant in New Jersey with the resources and the inclination can subject any child, and the adults with whom have the child has had contact, to a taint hearing. It would appear so.

The taint hearing took a toll on the boy’s family. It constituted only a handful of court days but ended up being spread out over almost two years. By the time it was over, the parents did not want to go through an actual trial, having already endured a trial-like hearing that treated them as if they were the defendants.107Close The Glazers moved away and declined to cooperate any further with the prosecution.108Close Accordingly, charges against Marzolf were dropped in December 1997. The taint hearing was a success, at least in terms of the outcome. But the prosecution had won the battle and lost the case. One of the worries among those who argued against taint hearings at the time of the Michaels case was that they would impose needless and discouraging costs on children and their families. The Marzolf case bears out the concern.

The eventual consequences in the Marzolf case were worse. Marzolf moved to Pennsylvania and opened a karate school. In 2002, he was arrested and charged with possession of child p*rnography and nine counts of sexual abuse of children.109Close He eventually pleaded guilty to single felony counts of child p*rnography and child molestation.110Close This case demonstrates the real cost of failing to hold someone like Marzolf accountable for the events in New Jersey; the price was paid by children in Pennsylvania.

It is surprisingly difficult to ascertain how often taint hearings have been held in New Jersey and to what end. Cases that are dropped as a result of taint hearings would be most difficult to find, since they do not reach trial and would never produce any appellate documents. There would be an appellate opinion only in cases where children’s testimony was admitted after a taint hearing and the defendant was subsequently convicted and then appealed. One case that fits this description involved former school psychologist James Krivacska, who published an article in Underwager’s journal in 1991 about the “dangers” of informing children about sexual abuse.111Close Although he did not mention this in his article, Krivacska had been arrested for child sexual abuse in 1986 and was acquitted in a trial that pitted his word against a single child’s. His conviction in 1998, stemming from allegations at another school, was based on the testimony of two children, who were subjected to a taint hearing that concluded with the decision that both boys could testify at trial. Krivacska was then convicted by a jury and sentenced to twenty-six years in prison. One might think Ceci and Bruck would be satisfied with this outcome, since there was a taint hearing. But Ceci, Bruck, and eight other psychologists filed a brief at the U.S. Supreme Court in April 2002 in an effort to overturn Krivacska’s conviction.112Close They described their research as “uncontroverted within the scientific community” and branded Kathyrn Hall, who testified for the state, as a “self-styled ‘expert’” who “propounded junk science.”113Close Hall, who has a doctorate in psychology, acknowledged Ceci and Bruck’s work, but she did not agree on how it applied to this case. The U.S. Supreme Court declined to hear the case, ending Krivacska’s appeals. After a hearing in 2008, the Special Classification Review Board in New Jersey found that Krivacska, who they declined to release on parole, had acknowledged he “created victims and admits to some guilt.”114Close Krivacska is still listed as one of the “sponsored cases” by the NCRJ, the organization headed by Michael Snedeker.

Although the controversy over whether to have special procedures for vetting children’s testimony remains alive, the danger for children lies as much in the taint rhetoric as it does in court holdings about taint hearings.115Close By framing the issue about children’s testimony in terms of taint, the concepts of gradations and degrees are glossed over with a rhetorical sleight of hand. Children are either tainted, or they are not. And given that defense experts seem to have enough targets in virtually any interview to support a conclusion that a child is tainted, the taint rhetoric often predestines the result. Children do not live in laboratory experiments; they populate the real world, where interviews and other human interactions are always subject to criticism. The important question is whether legitimate concerns about suggestibility are so strong that children should be prohibited from testifying. Though it would seem wise to reserve this argument for the most extreme cases, it has increasingly been applied to everyday child sexual abuse cases, including those with strong corroborative evidence. In no other area of law do we require a test like this before allowing a member of a class to testify. The taint arguments are distinctively anti-child.

The Rouse Case: Contesting Child Abuse Accommodation Syndrome

Another post-Michaels development is the widening attack on child abuse accommodation syndrome (CAAS), a theory put forth by Roland Summit in 1983 about how children disclose abuse and why it often remains secret. The theory was developed through clinical observation and was presented along with some empirical support from published studies.116Close Summit never claimed the theory was diagnostic. Though it is best known for what it predicts about disclosure, the foundation of the theory is that there are preconditions to the occurrence of sexual abuse. In other words, there are reasons inherent to the commission of the act itself that suggest disclosure would be difficult and slow. This was a large point of Summit’s conceptualization. Two of the five components in CAAS are preconditions: secrecy and helplessness. They help explain how sexual abuse occurs in the first place and why eventual disclosure does not come quickly and easily. The final three components of the syndrome are (3) entrapment and accommodation, (4) delayed disclosure, and (5) retraction.

Child abuse accommodation syndrome is dismissed wholesale in the witch-hunt narrative. The concept and its author are both seen as contributing causes to the worst injustices of those years. According to the narrative, Summit’s conceptualization, which considers retraction as a normal part of the disclosure process, results in a kind of catch-22, where if a child says he was abused, then he should be seen as abused, but if a child denies he was abused, then he is probably in denial and was actually abused. But Summit never made this claim, which conflates denials with retraction. Nevertheless, Lawrence Wright blamed Summit for precisely this kind of catch-22 logic in a blistering editorial in the New Yorker. (Wright had to issue a rare retraction later.117Close) The apparent desire to discredit child abuse accommodation syndrome at all costs lives on.

Ceci and Bruck have joined this campaign. In an article called “Unveiling Four Common Misconceptions,” they argue that “recent developments in forensic psychology” challenge four misconceptions about children’s disclosures. The first is, in their words, that “sexually abused children do not disclose their abuse.”118Close After labeling child abuse accommodation syndrome as “the most popular embodiment of this idea,” Ceci and Bruck argue that the theory is not well supported by empirical studies. They criticize various studies because participants who reported delayed disclosure were never asked whether they had specifically been asked about abuse earlier. In other words, even though many respondents did not disclose their abuse, this does not mean they would deny it if asked directly. Possibly so. But it hardly provides sufficient evidence to claim it is a misconception to say that “sexually abused children do not disclose their abuse.” The authors’ own meta-study concluded that “only 33% of adults remembered disclosing the abuse in a timely fashion.”119Close In other words, more than two-thirds of sexually abused children delay the disclosure of sexual abuse. What Ceci and Bruck label as “Misconception #1” is actually true. A significant majority of sexual abuse victims do not disclose their abuse, and for most others there is a delay between the abuse and telling someone about it.120Close

Nothing in Summit’s elaboration of child abuse accommodation syndrome says that denials should be taken as evidence of abuse, although he and his theory are both frequently accused of proposing this kind of circular logic. But Summit’s view is more problematic on the matter of recantations. Recantations involve children who have already disclosed something to someone. If considered a normal part of the disclosure process, then almost any child who recants could be seen as doing something that sexually abused children are likely to do. As a result, recantations might not be taken seriously enough. That is, they could automatically be disbelieved because there is an expectation that children who have disclosed abuse will also recant at some point in the process. Summit never said it this strongly, and his discussion was specifically about sexual abuse within a family context and in situations where two other conditions were met. But those subtleties are consistently glossed over in the witch-hunt narrative

Ceci and Bruck argue that the studies with the highest reported recantation rates among abused children are methodologically the weakest. One of those studies involves children from the McMartin case, and another involves children who were apparently all from the practice of Barbara Snow, a therapist in Utah. Their critique, along with London and Shuman, of these studies is well taken.121Close But those are not the only studies on the matter. Ceci and Bruck conclude that studies with stronger methodologies report recantation in less than 10 percent of cases, while there are widespread claims that it happens at least 25 percent of the time.

If recantation is not a normal part of disclosure, does that make it more likely to be accurate? Is it more likely a child who recants an allegation was not actually abused? It would seem so. But it appears some have taken the position that recantations almost always mean the initial disclosure was false, evincing a willingness to disregard corroborative evidence of abuse as well as evidence concerning pressures brought upon the child who recanted. This may seem like a particularly surprising position for Ceci and Bruck, who seem attuned to every possible way in which children’s statements about abuse might have been tainted. But in cases where recantations seem to have been produced by family pressure and other forms of coercion, Bruck, acting as an expert witness, has been willing to overlook corroborative evidence of abuse rather than recognize the existence of coercion on behalf of those who become defendants.

These issues are highlighted in the Rouse case, as it is known in legal filings, an interfamilial sexual abuse case involving four defendants (Desmond and Jessie Rouse, and Garfield Feather and Russell Hubbeling) from the Yankton Sioux Reservation in South Dakota. The four were convicted in 1994 of sexually abusing Rebecca, Tiffany, Lacey, and Joanie Rouse, who were all between four and seven at the time.122Close The complainants were all grandchildren of Rosemary Rouse, whose house they were living in along with two of the defendants. The other two defendants—Feather and Hubbeling, their uncles—came to the house to drink beer, and occasionally they stayed over.

The case began when Rebecca Rouse, five, was removed from her grandmother’s home in November 1993, after a teacher at her school filed a report of suspected neglect.123Close The girl made statements to her foster mother two months later about sexual abuse by her uncles. The foster mother called child protective services, and arrangements were made for Rebecca to be interviewed the next day by therapist Ellen Kelson. On the basis of Rebecca’s statements on January 10, 1993, the other children in the house were quickly removed. Some adamantly denied that there had been any sexual abuse; they were returned. Others made incriminating statements that constituted the basis for the criminal case. The children were all examined by pediatricians, and the results were so striking that they bear recounting in some detail. Moreover, they include statements by the girls themselves that are closest to the events in time and possibly most damning in terms of content.124Close

Dr. Kaplan found signs of recent trauma including a bruise or contusion on the left labia, inside the majora, of 4½-year-old, Joanie Rouse. Pointing to her labia, the girl told Dr. Kaplan “Uncle Jessie hurt me.”125Close Dr. Kaplan found a large bruise on the right labia of 6-year-old, Lacey Rouse.126Close It was an acute injury sustained within the last week. Dr. Kaplan noted a readily open hymen and a midline scar on the anus at the 6:00 o’clock position on Rebecca Rouse, the 5-year-old who made the first accusations in the case. Pointing to her vagin*, the girl told Dr. Kaplan that she had a bruise “where my uncle put his private spot.”127Close Dr. Kaplan also found contusions on the right inner labia majora and considerable tenderness in 7-year-old Tiffany Rouse. The contusions were evidence of recent trauma. Dr. Randall Alexander, board certified in pediatrics, reviewed the files and confirmed how strongly they indicated sexual abuse. Responding to the defense claims that these injuries might have happened accidentally, Dr. Alexander testified that “it’s a pretty rare event” to see a girl with a labial injury from an accidental source.128Close There were three girls with such injuries in this case. None presented any kind of history that included some kind of freak accident.

The prosecution’s case was based on the testimony of these children—three of whom were allowed to testify by closed-circuit television after the court found they were afraid of the defendants—and on related medical testimony. The defense focused on events that happened after the initial disclosures. They engaged Ralph Underwager to offer his opinion that:

children in this case have been subjected to massive and coercive social influence by adults . . . such as to make it highly likely that any statements are so contaminated by adult behaviors as to be unreliable.129Close

It was a clever way of acting as if claims about reliability were not really claims about credibility. Expert witnesses are not supposed to offer judgments on whether to believe a particular witness. This was the criticism of Eileen Treacy’s testimony in the Michaels case—that her testimony “essentially” did so. In the Rouse case, the judge limited the scope of Underwager’s testimony to avoid statements that would specifically impugn the child witnesses. The limits on his testimony became a major issue on appeal.

A divided three-judge panel in the Eighth Circuit Court of Appeals overturned the verdicts in November 1996. Judge Myron Bright’s majority opinion adopted the witch-hunt narrative in literal terms. “With respect to conditions that can influence children’s memories,” the judge notes, “we are mindful of a historical event of some three hundred years ago,” the Salem witch trials. After stating that nineteen adults were put to death as alleged witches, the judge noted: “This case, of course, is not a Salem Witch Trial, but that history must remind us that memory, particularly children’s memory, may be falsely induced.”130Close Returning to the matter at hand, the judge ruled it was prejudicial error to prohibit Underwager from relating his general testimony about suggestibility to the specific facts of this case. The witch-hunt digression is notable primarily because it flies in the face of the evidence in the case, including spontaneous statements to pediatricians and overwhelming medical evidence of sexual abuse. Chief Judge James B. Loken’s dissent points out, bluntly and with detailed documentation, that “the majority takes liberties with the record in attempting to cast doubt on the jury.”131Close

The decision would be cited in the APA Monitor as evidence of Ceci and Bruck’s effect on the field.132Close But the decision was short-lived. Less than three months later, the decision was vacated by the grant of a motion for rehearing133Close. On rehearing, the three-judge panel issued a new opinion affirming the original convictions. Judge Loken was now writing for the majority and Judge Bright was the dissenter. As Loken put it, “It is clear from the record that [Underwager] was intent upon expressing his ultimate opinion that the victims’ accusations of sexual abuse were not credible.”134Close Loken considered this to be the domain of the jury. While allowing that Underwager might have been given wider latitude to testify about suggestibility issues, the judge concluded it would not have altered the result of a trial with such strong medical evidence and contemporaneous statements.

Two years later, the defendants made a motion for a new trial, arguing that there was new evidence in the form of recantations from all the original child witnesses. The recantations were captured on a videotaped interview conducted by none other than Ralph Underwager, on January 30, 1999. The court held an evidentiary hearing on the matter, and Maggie Bruck appeared for the defense. She summarized the literature on recantations and criticized, for sound and well-taken reasons, two of the studies often relied on by clinicians. Bruck’s position, based on a meta-study she coauthored, was that recantation rates are quite low and could not be said to be “a natural part of the process,” as Summit postulated in child abuse accommodation syndrome.

Bruck went one bold step further. She “did the math” and—relying on the assumption that the five recantations were independent events—testified there was a “one in nine hundred” chance of this many witnesses recanting.135Close The prosecutor called it “mysterious math.” Chief Judge Lawrence L. Peirsol, who was generally complimentary to Bruck, told her he was “troubled” with these calculations. “These are not independent events,” he said; they are “in a family situation.” Bruck eventually backed down and called the math “a logical exercise.”136Close She settled for the idea that the odds of at least one child recanting in this case are, given the literature, as big as one in four, or more likely about one in ten.

But even if there is only a 10 percent chance that a sexually abused child will recant a true accusation, isn’t there every reason to conclude under the facts of this case that the recantations were likely to be in this group? As Judge Piersol noted:

The children did not recant until they were sent home and were being cared for by the mothers and grandmothers who did not believe the abuse occurred and who made it known to the children that they missed their sons and brothers.137Close

Moreover, there was a telling incident on December 6, 1999, after the motion for a new trial was filed, between Joanie Rouse and a school counselor who knew nothing about the case.138Close The counselor testified that Joanie told her she was afraid for the upcoming Christmas break because her uncles were coming home. When the counselor asked why this was worrisome, Joanie reportedly said because they touched her private parts and would be mad at her for her telling.139Close These “recantations” are also suspect thanks to the earlier involvement of Underwager, who “interviewed” two of these girls in 1996. The tape is under seal, but according to Judge Peirsol, Underwager told the children “he was there to help the children get the defendants out of prison and he talked at length of the prison sentences imposed.”140Close Having a stated purpose and actively enlisting the assistance of the children in meeting the purpose is presumably just as inappropriate when it is done by the defense as when it is done by the prosecution. But even though the Rouse defendants have been embraced as the “Yankton Four,” nobody writing about this case has criticized Underwager’s heavy-handed efforts. Instead, Maggie Bruck and Hollida Wakefield, Underwager’s wife, have continued to champion the case, with the support of Michael Snedeker’s organization.141Close

This case evokes the grand conflict between different ways of knowing in psychology. If Bruck’s way is the only true claim to knowledge, then until there are laboratory experiments about family dynamics and sexual abuse—something that will never occur, given ethical and practical limitations—we will not be able to recognize that pressures exist within a family to recant abuse allegations. Requiring a deliberate blindness to such things because they have not been measured in a controlled experiment seems eerily like adopting the mindset that existed before we “recognized” the sexual abuse of children. The consequences would certainly be quite similar.

More generally, popular writing and academic studies that played a foundational role in the witch-hunt narrative have since been used to discredit children as a class. In Kennedy v. Louisiana, the U.S. Supreme Court cited “serious systematic concerns” in child rape cases, particularly the “problem of unreliable, induced, and even imagined child testimony.”142Close The court cited Ceci and Freidman’s Cornell Law Review article stating that “there is strong evidence that children, especially young children, are suggestible to a significant degree.”143Close Law professor Samuel Gross and his coauthors wrote about this issue in 2005, appropriately holding the claim of exoneration to cases involving “an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted.” Employing this definition, the authors allowed that almost none of the famous child abuse cases from the 1980s and early 1990s qualify as “exonerations.” Neverthelesss, relying on Nathan and Snedeker’s book, they opined that “there is no doubt that most were falsely convicted” (emphasis added).144Close The shortcomings of that assertion have been elaborated elsewhere in this book. But the witch-hunt narrative nevertheless provides the basis for the majority’s opinion in Kennedy concerning a “special risk of wrongful execution.” Yet, there have not been any studies that actually document a significant difference between the accuracy of criminal court outcomes in cases involving children and those involving adults. Instead, this widespread belief, cited by the Supreme Court as if it were fact, apparently stems from the saliency of the witch-hunt narrative in “explaining” the day-care sexual abuse cases from the 1980s and early 1990s. What the opinion expresses is a kind of return to the disfavored jury instruction that used to tell jurors to discount children as a class. In its place, the U.S. Supreme Court relied on the stereotype of children as significantly less reliable. There are plenty of arguments for opposing the death penalty in general. But the claim there is a “serious systemic concern” for child rape convictions that does not exist for murder is without a solid factual basis.

Moreover, this argument takes a one-dimensional view of “reliability,” focusing on false positives without apparent regard for the problem of false denials. A “gold standard” study on the failure to disclose known abuse involved a population of young children with sexually transmitted diseases that were considered diagnostic of sexual abuse. Only 43 percent disclosed abuse in the first interview.145Close This finding contradicts the claim that children generally disclose in one fell swoop. It also suggests a reason to worry that concerns about “repetitive” interviews may have gone too far, especially in those instances impugning a second interview with a child who did not disclose in the first interview. That is what a majority of the children with sexually transmitted diseases did. The “systemic” error that has been left unrecognized, then, is how the “pro-defense orientation” in the field of psychology results in the failure to inquire about false denials of abuse, about false determination that a case is unsubstantiated, or about acquitting defendants by unduly discounting the word of a child.

The Backlash Against Institutions and Professionals

Beyond the arguments about child suggestibility, the witch-hunt narrative also contained an antigovernment message that attracted a variety of interests, right and left wing. One strand of this argument, expressed by the Eberles as early as 1987, claimed that the child-abuse “industry” was a scheme, created by Congress, that enriched state agencies and related nonprofit institutions, who had a financial interest in “finding” abuse. Accordingly, the Child Abuse Prevention and Treatment Act (CAPTA) became the scapegoat for various complaints about false accusations. Critics routinely refer to the law as the Mondale Act, named for the liberal Minnesota Democrat who introduced the legislation (which was signed into law by President Nixon). Blaming CATPA is far-fetched, to say the least, but this argument nevertheless galvanized conservative interests. It has since engaged father’s rights groups that challenge the legitimacy of government regulation of the family. Liberals have also been attracted to aspects of this antigovernment critique, particularly when it focuses on police and prosecutorial abuses. Although this kind of rhetoric was a staple of the witch-hunt narrative, the critique was always much broader than the day-care sexual abuse cases. The agenda, which has not gained sufficient political support to prevail, involves the elimination of mandatory child-abuse reporting and a massive defunding of federal support for child protective services and foster care. One of the three major organizers of the Salem Day of Contrition in 1997 worked closely with conservative Republican Senator Coats from Indiana in an unsuccessful attempt to achieve those goals.

Those institutional goals remain out of reach, but there has also been a powerful attack on child abuse professionals in court. The witch-hunt narrative focused on child interviewers and social workers, who did not necessarily have advanced degrees or specialized training. But those arguments have expanded in recent years to cover child-abuse pediatricians and forensic child interviewers with advanced degrees. One of the first high-profile cases to illustrate this assault on child abuse professionals was the so-called British Nanny case, involving Louise Woodward. Woodward was convicted of murder, but Judge Hiller B. Zobel sentenced her only to time served, apparently moved by the defense claims that rejected the collected wisdom and understanding of child-abuse pediatricians.146Close More recently, some of the same academic psychologists who focused on child suggestibility in the 1990s have also challenged the expertise of child-abuse doctors.147Close A horrific child-murder case from Harrington, Maine, demonstrates the lengths to which advocates of the child-suggestibility framework have gone to reject clinical judgments, even involving battered child syndrome.

Robert Ardolino was charged with beating his nine-year-old son, Matthew, to death in late June 1993. Ardolino was divorced and living with his sons Matthew and David; the latter was about to turn twelve. Matthew Ardolino died of peritonitis, an inflammation of the lining of the bowel. Peritonitis is caused when digestive juices and bacteria from the intestine leak into the abdominal cavity; the result is a massive inflammatory reaction. The cause of his condition was blunt force trauma to the stomach. The blow had to be so hard that it squeezed the jejunum (lower intestine) between the back of the abdominal wall and the spine with enough force to puncture it. A child’s heart would then start to race, he might vomit—as Matthew did several times that day—and he would be in severe pain. The treatment, as Dr. Lawrence Ricci testified, is “very simple and straightforward and almost uniformly successful.”148Close But left untreated for twenty-four hours, it is inevitably fatal. This is what happened to Matthew. As Dr. Ricci later testified, Matthew would have looked “seriously ill” during much of those twenty-four hours.149Close He vomited bile that evening, yet his father did not seek any medical attention. Matthew died before daybreak.

When David was interviewed, he told the police the same thing his father said: Matthew had fallen out of the tree house. David denied that his father had harmed Matthew in any way. Given the surrounding circ*mstances, David’s statements were not credible. First, there were witnesses who heard Robert Ardolino berating Matthew from a distance when they went out clamming that Saturday morning. This indicates there was more to the story than David was saying. Second, Matthew’s body was covered in bruises of different ages—bruises in places where children are rarely injured once, let alone multiple times. This made the blanket denial of any physical abuse highly suspect. Third, the internal injury to Matthew’s bowel was not consistent with falling out of a tree.150Close It also turns out the clothes he wore that day were not consistent with this story.151Close

Dr. Ricci, a pediatric child-abuse specialist, eventually reviewed the medical records and concurred that this was a classic case of battered-child syndrome. One reason for the conclusion was that there were “multiple injuries that are unexplained by the history, on multiple planes of the body in assaultive, rather than accident location, of multiple ages.” Specifically, there were truncal injuries “in a particular location consistent with punches along the flank, lower lateral back, and abdomen region” and “multiple punctuate bruises on the chest and abdomen such as from poking.” Matthew also had bruises about the arms “in possible self-defense location.” Another reason factoring into Dr. Ricci’s equation was a “history of delay in seeking treatment” and then providing a history that is inconsistent with the extent and severity of the injuries.152Close

But the medical evidence alone would not support charges against Ardolino. Accordingly, the police requested another interview with David in January 1994. They interviewed him for more than three hours, making it clear they did not consider his answers about Matthew falling out of the tree to be credible. David stuck by the story and insisted that his father never did anything abusive to Matthew or to him. It should be kept in mind that Ardolino was still free at this point, although David had been removed from his custody. Six months later, the state police were contacted by David’s foster mother and told that David wanted to tell the real story.

David then gave a detailed statement on July 14, 1994, about what happened on the fateful Saturday. He reported that in the morning, Robert Ardolino was unhappy with how Matthew had made a milkshake, so he kicked him in the stomach. When they went clamming after breakfast, his father was upset at Matthew and threw him against a boat, injuring the boy’s back. Matthew threw up that afternoon while hanging up laundry. He kept reverting to the fetal position—a natural response to the pain of peritonitis—and his father got angry about that as well. Robert Ardolino then went out to sell some clams, and while he was gone there was a phone call in which someone asked for Matthew and hung up when David asked who was calling. David said his father was enraged when he was told about this because he thought Matthew had called child protective services. He ordered David to get his baseball bat from the shed. When asked to describe what his father did with the bat, this is what David said:

david

: It was like a poking motion at his stomach.

question:

  Did he hit him?

david

: Yes.

question

: Can you give us an estimate of how many times?

david

: No. It was a lot.153Close

David testified that “it went on for a while.” Then his brother “threw up green throw-up and dad got mad at him for throwing up.”154Close Within about six hours, Matthew was dead.

The criminal trial included David’s testimony, but the emphasis was on the medical evidence. There were lengthy arguments about whether photos of the bruises would be so inflammatory they would prejudice the jury. Some photos were kept out on that basis. But the jury received detailed descriptions of the range and types of bruises on Matthew’s body. And they heard from several medical experts. Ardolino was convicted of “depraved indifference” murder.

As with the Marzolf case in New Jersey, where there was an adult eyewitness, there would seem to be no place for child-suggestibility claims in the Ardolino case, with its extensive medical evidence of physical abuse. If anything, the case seems to speak volumes about the power of fear, secrecy, and denial. Those influences were strong enough that David was steadfast in his denials, even in the face of authority figures who cajoled him and expressed outright disbelief during the interview of January 7, 1994.

Robert Rosenthal represented Ardolino in federal court, where he challenged his state conviction. Rosenthal engaged Maggie Bruck as an expert, and she provided the opinion that the first interview with David, immediately after his brother died, was the most reliable one.155Close He should never have been interviewed again, she concluded—certainly not, according to Bruck, after having “contact only with adults who believed that his statements that Mr. Ardolino had not beaten Matthew were false.”156Close Bruck saved her outrage for the police interviewers who pushed David in January. This was apparently the only possible abuse she detected in the case. One might be particularly skeptical of Bruck’s position since it was raised on behalf of Robert Ardolino, the one person who stood to lose the most if David’s story aligned with the physical evidence. In this sense, the case also threatened to provide a powerful example of how a child might falsely deny there was any abuse even in the face of extremely aggressive questioning.

The remarkable blind spot in Bruck’s position is how it failed to apply her vast knowledge and concern about coercion to the most likely and powerful source in the case: the man who used a baseball bat to make his points. In Bruck’s view, the interview of July 14, 1994, was completely tainted because in the preceding months David had had contact only with adults who believed Ardolino was guilty. Bruck never explains why this is so objectionable, while an interview conducted immediately after years under the control of the defendant doesn’t rate any similar concern—even when the allegation, backed up with medical evidence, is that the defendant slowly beat his brother to death. Apparently, even a witness to such horror is suspect in Bruck’s view if he does not disclose the abuse immediately, on the first interview, and all in one piece.

There is, of course, a hidden value choice in the position—one that deems the coercive effects of the police interview as a far greater concern than the coercive effects of living with Robert Ardolino for years. In that respect, Bruck’s position is de facto pro-defense. This is the only explanation that makes this position consistent with the Rouse case, where Bruck readily accepted recantations that occurred only after the children moved back into a residence where the adults did not believe their original claims—the mirror image of the reason she used to reject David Ardolino’s testimony. So Bruck does not see the Rouse adults as tainting the recantations in that case, yet she sees David’s foster mother as tainting his testimony, which was, in effect, a recantation of his earlier denials. These positions are logically incompatible, except to the extent they both favor defendants. This “pro-defense orientation” is precisely how Ceci described the design of his research studies when testifying in the Foeller case in Michigan.157Close Why so many psychologists have aligned themselves with the defense, to the point of demonstrating and even admitting bias in that direction, is a puzzle for another time. What matters for this book is that these politics exist and work to diminish the credibility, and ultimately the safety, of children.

The more radical aspect of Bruck’s position is the assault on battered child syndrome. Rosenthal argued in post-conviction proceedings that Ardolino’s original lawyer should have challenged the admissibility of the syndrome itself. Bruck’s affidavit actually criticized the medical examiner for not adequately considering “fights with neighbors,” “bicycle accidents,” and the “active life of a 9-year-old boy” before reaching the conclusion that Matthew had been beaten to death.158Close Bruck, a developmental psychologist without medical training, suggested the medical examiner jumped to the conclusion that it was battered child syndrome. But Dr. Ricci, the pediatric child-abuse expert who later reviewed all of the medical evidence, testified that he knew about all of the information Bruck mentioned, that he took it all into account in reviewing the case, and that it did not change his conclusion of a clear-cut case of battered child syndrome.159Close

Bruck’s dispute is not so much about pediatrics as it is about forms of knowledge in psychology. Even though battered child syndrome is much more concrete than syndromes based on psychological factors alone, it involves a clinical judgment about patterns of injuries. Bruck is among a group of academic psychologists who minimize the value of clinical judgments. Indeed, she and a few others have gone to great lengths to attack such clinical judgments. Bruck filed an affidavit in support of a motion to disqualify Constance Dalenberg in a case in California, even though Dalenberg has a doctorate in clinical psychology and heads a research institute that specializes in child abuse research. Dalenberg also teaches courses in the treatment of child abuse victims and perpetrators, she spends one day a week in a child abuse clinic, and she teaches graduate-level statistics. But in a case where she declined to view a child’s statements as the product of suggestion, Bruck and five others, among them the writer Carol Tavris, opined that Dalenberg’s views were “unfounded, unscientific, unreliable, and unprofessional.”160Close

Bruck’s position in these cases is not based on science alone. The position that challenges the ability of child-abuse specialists to diagnose battered-child syndrome is part of a broader attack on child-abuse professionals. Arguments against them are a foundational element of the witch-hunt narrative. When the Eberles first wrote The Politics of Child Abuse in 1986, they claimed that the underlying problem was CAPTA, the Child Abuse Prevention and Training Act. Eleven years later, Richard Gardner, a frequent defense expert in these cases, gave a fiery speech at the Salem Day of Contrition, where he argued “a whole industry has been spawned” and that “hysteria is being fueled primarily by funding from the federal government under the Child Abuse Prevention and Treatment Act.”161Close This position is now a mainstay of father’s rights groups and right-wing activists who lobby against child protective service agencies as a violation of family privacy. Painting in broad pejorative strokes, the witch-hunt narrative refers to those who investigate, treat, or prosecute child abuse as “the child-abuse industry.” Curiously, the professionals who consistently appear on the other side are rarely, if ever, called an industry, and their financial rewards are never scrutinized. In the witch-hunt narrative there is a “child abuse industry” but not a “child-abuse defense industry.”

Conclusion

The witch-hunt narrative continues to have a significant impact on social and legal responses to child sexual abuse in America. Activists with varied agendas continue to use the imagery of Salem to promote their causes. The media generally view these claims with utter credulity. This has resulted in a surprising amount of positive press for child molesters, from Frank Fuster to Charles Bighead. The judiciary has not fallen for these stories as readily as the media, but judges like John T. Noonan in the Bighead case and Myron Bright in the Rouse case demonstrate that the judiciary is not immune to this rhetoric.

There have also been developments to the contrary. The cases against the Catholic Church demonstrate a willingness to confront sexual abuse in places where it would have been unimaginable in the not-too-distant past. Those developments are admirable, but their application is limited. They do not necessarily suggest anything about allegations made by children; moreover, the impetus for recognizing and addressing those cases was a proven cover-up. There is also evidence of overreaction to child sexual abuse since the end of the McMartin case. The widespread implementation of Megan’s Law demonstrates how our society has overreacted to sex offenders after their release from prison. But the “lesson” from that phenomenon has been applied too broadly, leading some to characterize our social response to sex offenders in general by the way we treat the very small percentage of offenders who get imprisoned. Leon suggests that the movie The Woodsman is indicative of a dominant discourse that now sees sex offenders as monsters. But there was a more popular movie during the same era, Capturing the Friedmans, which retold a child molestation case from the 1980s through the lens of the witch-hunt narrative, notwithstanding all the facts to the contrary. Just as supporters of Megan’s Law take too much comfort in symbolic acts that do little to address sex offenders at large, those who focus on Megan’s Law to characterize social response to child molesters as “highly punitive” similarly miss the point. The witch-hunt narrative directs our attention away from the reality of child sexual abuse, which remains widespread, underreported, and generally punished quite leniently. But that is an uncomfortable reality. It is easier just to favor—or disdain—policies like Megan’s law.

In the field of psychology, Ceci and Bruck continue to be viewed by many as the leading experts on “child suggestibility.” Their work is now a primary source on child suggestibility in psychology textbooks. But there have also been some prominent critics of the general direction of the field, among them Professor Tom Lyon, who has pointed out the biases of the “new wave” in child-suggestibility research.162Close These disagreements among academics are not generally reflected in media stories about the subject, but they are more apparent in scholarly journals. Less apparent, except to the closest observers, are three developments discussed in this chapter. First, there has been an expansive effort to employ child-suggestibility concepts to keep children from testifying in court in a broad range of cases. Those who originally argued that suggestibility claims belonged only in cases with extremely coercive interviewing were now applying the same arguments to cases with strong corroborative evidence of abuse and far less in the way of coercive or repetitive interviews than anything that was claimed in the Michaels case.

Second, there has also been a surprising attack on the conventional wisdom—conventional, at least, to those in the clinical world—that sexual abuse disclosures are often delayed and then disclosed in bits and pieces. Those attacks threaten to undermine the vast majority of victims of sexual abuse, who delay disclosure and are therefore considered suspect. Ceci and Bruck’s own meta-study found that two-thirds of sexual abuse victims delay reporting the fact, but Bruck and others have demonstrated a willingness to impugn children who do not report fully and immediately.

Finally, there has been a surprising effort to undermine the professionals who conduct the front-line work in this area, such as pediatricians who operate child-abuse clinics and psychologists who direct forensic interviewing programs at child advocacy centers. The disdain that Judge Noonan registered for Tanya Boychuk in the Bighead case reflects this disturbing trend. So does Maggie Bruck’s willingness to second-guess the medical examiner who concluded that Matthew Ardolino had been beaten to death. These developments are a function of a witch-hunt narrative that sees these professionals as an “industry” and that threatens to undermine the front-line workers and institutions responding to the sexual abuse of children in the United States.

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Notes

1.

Investigative Staff of the Boston Globe, Betrayal: The Crisis in the Catholic Church (Back Bay Books, 2002), 23; Walter V. Robinson, “$20m Accord Seen in Geoghan Cases,” Boston Globe (March 5, 2002), A1.

2.

Investigative Staff of the Boston Globe, Betrayal: The Crisis in the Catholic Church (Back Bay Books, 2002), 120.

3.

Frank Bruni and Laurie Goodstein, “Rome Withholding Endorsem*nt of U.S. Abuse Plan,” New York Times (October 18, 2002); Joan Rivera, Bishops to Revisit Policy on Sex Abuse,” Baltimore Sun (November 11, 2002).

4.

See generally Jason Berry, Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children (Doubleday, 1992).

5.

Investigative Staff of the Boston Globe, Betrayal, 6.

6.

Investigative Staff of the Boston Globe, Betrayal, 7.

7.

Howard Bloom, Richard Winton, and Alan Zarembo, “Accused Teacher Drew Sheriff’s Scrutiny in ’94,” Los Angeles Times (February 2, 10212), AA1.

8.

Jason Kandel, “Telfair Elementary Teacher Sentenced in Sex Abuse Case,” NBCLA.com (Thursday, September 20, 2012).

9.

Richard Krueger, “The New American Witch Hunt,” Los Angeles Times (March 11, 2007), M1.

10.

Donna Schram and Cheryl Milloy, “Sexually Violent Predators and Civil Commitment,” Washington State Institute for Public Policy (February 1998).

11.

Robert Barnoski, “Sex Offender Sentencing in Washington State: Measuring Recidivism,” Washington State Institute for Public Policy (August 2005).

12.

“Sex Offender Sentencing in Washington State.”

13.

http://www.meganslaw.ca.gov/ (visited September 30, 2011).

14.

A 1996 study into the success of Washington’s notification laws revealed that 3.5 percent of sex offenders, subject to notification laws, had been harassed by the public (Scott Matson and Roxanne Lieb, “Community Notification in Washington State: 1996 Survey of Law Enforcement,” Washington State Institute for Public Policy, November 1996). But there have been a few terrible cases of vigilantism, including a double murder.

15.

Richard Tewksbury, “Policy Implications of Sex Offender Residence Restrictions,” Criminology & Public Policy (May 2011) 10(2)

.

16.

Monica Davey and Abby Goodnough, “Doubts Rise as States Hold Sex Offenders After Prison,” New York Times (March 4, 2007), 1.

17.

A very recent exception is Rachel Aviv’s article in the New Yorker, which highlights someone whose main offenses involved child p*rnography and has been subject to civil confinement in Minnesota. Rachel Aviv, “The Science of Sex Abuse,” The New Yorker (January 14, 2013). But Aviv plays down the defendant’s guilty plea for enticing a child, focusing instead on the child p*rnography charges. Court records indicate that the defendant —whose identity Aviv chose to shield—“talked specifically with ‘Sarah,’ the fourteen-year-old, about engaging in sexual acts together” before driving to an agreed meeting place. He had “lingerie and sex toys” with him when he was arrested approaching two undercover officers. Findings of Fact, Conclusions of Law, and Order for Judgment, U.S. v. Volungus, Civil Action No. 07-12060-GAO (U.S. District Court, District of Massachusetts) March 8, 2012, 4. In his ruling, Judge George A. O’Toole noted that it was “uncontested” that Volungus had attempted “to meet what he thought was a fourteen-year-old girl for the purposes of having sex with her.” 12.

18.

Senator Tom Coburn introduced an amendment: “To reduce the cost of providing federally funded prescription drugs by eliminating fraudulent payments and prohibiting coverage of Viagra for child molesters and rapists and for drugs intended to induce abortion.” This was intended to force supporters of the Obama Administration, whose plan would treat all Americans the same, to have to cast a vote that would be portrayed as “Viagra for child molesters.” Supporters of the president’s bill were later subjected to that charge, which was rated as false by Politifact.com (October 26, 2010). For another example of these misleading tactics, see Politifact column, “Cicilline ‘argued against Megan’s Law and voted against mandatory registration of sex offenders’” Providence Journal (October 27, 2010) (Ruled “mostly false”).

19.

Chrysanthi S. Leon, Sex Fiends, Perverts, and Pedophiles: Understanding Sex Crime Policy in America (NYU Press, 2011).

20.

Ross E. Cheit and Erica Goldschmidt, “Child Molesters in the Criminal Justice System: A Comprehensive Case-Flow Analysis of the Rhode Island Docket (1985–1993),” New England Journal on Criminal and Confinement (1997) 23(2), 267–301.

21.

Theodore Cross et. al., “Prosecution of Child Abuse: A Meta-Analysis of Rates and Criminal Justice Decisions,” Trauma, Violence & Abuse (October 2003), 323, 333.

22.

Mary Hargrove and Susan Roth, “Preying on Pupils,” Arkansas Democrat-Gazette (September 8, 1996).

23.

Amicus Curiae Brief for the New Jersey Council of Child and Adolescent Psychiatry in State v. J.Q., 130 N.J. 554; 617 A.2d 1196 (New Jersey Supreme Court, 1993).

24.

Steven F. v. Anaheim Union High School District, 112 Cal. App. 4th 904; 6 Cal. Rptr. 3d 105 (2003).

25.

“More Guidance for Teachers,” Editorial, Los Angeles Times (November 11, 2003), B12.

26.

People v. Shumate, Reporter’s Transcript on Appeal, Vol. II, tr. 564 (line 28)–565 (line 1); testimony of Jill Paddack, first-grade teacher on yard duty on February 2, 1994.

27.

People v. Shumate, Probation Officer’s Report and Recommendation, Alameda County Superior Court (August 17, 1995), 11.

28.

Handwritten letter to Lesley Pankopf (Deputy Probation Officer) dated March 28, 1995. Name redacted. Attached to People v. Shumate Probation Officer’s Report and Recommendation.

29.

People v. Shumate, Appellant’s Opening Brief, Court of Appeals of the State of California, First Appellate District, Division Two (November 4, 1996); Michael Snedeker co-counsel for the defendant.

30.

People v. Shumate, Reporter’s Transcript on Appeal, Vol. IX, tr. 2298.

31.

People v. Shumate, Reporter’s Transcript on Appeal, Vol. VI, tr. 1390 (lines 24–26). He also testified that Shumate told him “he got involved with one of his foster kids, and his wife found out. And they sent the foster kid away” (tr. 1391).

32.

Elaine Herscher, “Molest Sentence May Be Delayed,” San Francisco Chronicle (August 17, 1995), A21.

33.

Matt Gryta, “Man Pleads Guilty to Molestation; Ex-Officer Gets Jail for Abusing Boys,” Buffalo News (January 9, 1993): 4.

34.

Carol Hopkins, Salem Day of Contrition (January 14, 1997) [transcription], tr. 52.

35.

There is no appellate decision in this case because Ferrara pleaded guilty.

36.

Mark Pendergrast, Victims of Memory, 496.

37.

Dr. Young testified “that B.L.’s physical condition was consistent with a history of rectal penetration, and that the best explanation for the physical condition of all three boys was that they had been victims of sexual abuse.” State v. Lawton, 164 Vt. 179; 667 A.2d 50; 1995 LEXIS 88 (1995), 182, 54.

38.

State v. Lawton, Trial tr. 139.

39.

State v. Lawton, Trial tr. 142.

40.

This evidence came in through the testimony of Mark Williams, the mother’s counselor. Williams testified that when the mother told him this story (and one other) he became convinced she had an obligation to report the matter to child protective services (State v. Lawton, Trial transcript, tr. 222–223). This is how the case in Vermont began. Since the defendant’s theory of the case blamed the therapist in part, there is considerable irony in the fact that the defendant objected to this testimony. As the state pointed out in its brief, the defense opened the door to this testimony through the theory of the case it advanced at trial. Brief of Appellee, State v. Lawton, Vermont Supreme Court, Docket No. 93-098, 18–37.

41.

State v. Lawton, 164 Vt. 179; 667 A.2d 50 (1995; “B.L.’s statement was not the product of repeated interviewing, nor was any evidence of coercion or manipulation present. Given the circ*mstances, the statement was trustworthy”).

42.

Asked when he first became aware of the abuse allegations, Lawton gave a misleading answer about “three mild accusations” contained in divorce papers. There were actually four allegations and, as the prosecutor apparently emphasized too much, they were not “mild”; they involved anal sex, and Lawton knew that.

43.

U.S. v. Bighead, 128 F.3d 1329, 1332 (9th cir. 1997).

44.

U.S. v. Bighead, 1338.

45.

U.S. v. Bighead, 1336.

46.

Thomas Sowell, “Legal Lynchings,” Forbes (January 26, 1998).

47.

Noonan noted that “being a victim has become a popular calling” and “those who have complained of such abuse are identified by their therapists as ‘victims,’ or, more dramatically, as ‘survivors.’” U.S. v. Bighead, 1338.

48.

Pendergrast, “The Case of Elsie Oscarson,” http://ncrj.org/Oscarson/Oscarson.html.

Close

49.

Daniel Patrick Moynihan, “Defining Deviancy Down,” American Scholar (Winter 1993).

50.

Letter to the editor from Robert Rosenthal, Wall Street Journal (November 7, 2003), A11.

51.

Report and recommendation, Serrano v. Kirkpatrick, Federal District Court for the Southern District of New York (06-CV-990), 2.

52.

State v. Weber, 807 N.Y.S.2d 222, 25 A.D.3d 919 (2006).

53.

Emily E. Smith, “Hillsboro Man, Convicted of Sex Abuse in 2006, Shortens Sentence with Plea Deal,” Oregonian (September 2, 2010).

54.

State v. Carol M.D., 983 P.2d 1165 (Court of Appeals of Washington, Division Three, Panel Five, September 14, 1999). Robert Rosenthal was of counsel.

55.

CBS 48 Hours transcript (April 3, 1997), 18. Hopkins also told CBS News that she coached the girl for speeches before Congress and for a press conference by the Justice Committee, the organization Hopkins founded (19, 20). It is not clear why this unusual foster placement was approved, but the placement is particularly ironic in light of Hopkins’s editorial favoring “the all too obvious recommendation that foster children should not be placed with a person who has a conflict of interest and is in a dual role.” Carol Hopkins, “Wenatchee Case Demands Reform of Child-Protection System,” Seattle Post-Intelligencer (March 4, 1998), A13. CBS News reported that Sam Doggett eventually ran away from Hopkins’s home “with an unknown man in an unknown car” (21).

56.

State v. Carol M. D., 89 Wn. App. 77; 948 P.2d 837; 1997 Wash. App. LEXIS 2012 (December 9, 1997), 841–842. The court also concluded that the defendants should have been authorized funds to hire an expert on false memory. In discussing that claim, however, the court noted “there is evidence that M.D. [the youngest child] stated from the beginning that her parents had abused her” (844). The court also quoted from the Kelly Michaels case in New Jersey with approval and ordered a so-called taint hearing (845). The Supreme Court of Washington granted review and remanded the case in light of the In Re the Dependency of A.E.P., 135 Wash.2d 208, 956 P.2d 297 (1998), a case in which the court declined to adopt taint hearings. State v. Doggett, 136 Wn. 2d 1019; 967 P.2d 548; 1998 Wash. LEXIS 782 (1998). The court of appeals subsequently withdrew the portion of its earlier opinion concerning taint hearings, and adhered to the decision to reverse the convictions on other grounds and remand the case for retrial. State v. Carol M.D., 97 Wn.App. 355; 983 P.2d 1165; 1999 Wash. App. LEXIS 1840 (1999).

57.

AP, “Judge Denies Family’s Claim in Child Sex-Abuse Investigation,” The Columbian (November 21, 2004): C4

.

58.

The interview in which this woman makes the admission from prison is contained in a local TV news story that can be viewed at http://youtu.be/Y2cSpKPY1XM.

59.

Andrew Schneider, “Jury Rejects Wenatchee Suit; Verdict Jolts the Accused in Child Sex Cases; City and Police Are Absolved,” Seattle Post-Intelligencer (June 30, 1998), A1.

60.

Barber and Schneider, “Detective a Man Who Charmed,” A7; “With Every Step, Rights Were Trampled.”

61.

Kathyrn Lyon, Witch Hunt: A True Story of Social Hysteria and Abused Justice (Avon, 1998).

62.

Philip Terzian, “The Witchcraft Trials of the ’80s,” Providence Journal (May 31, 1995), A11.

63.

Joe Strupp, “Molester Sentenced to 6 Years in Prison,” Press-Enterprise (Riverside, California, November 21, 1998), B2.

64.

Dave Hughes, “Man, 61, Admits Molesting Kids,” Arkansas Democrat-Gazette (May 19, 2007).

65.

Todd C. Frankel, “Town in ‘Shocked Silence,’ Ste. Genevieve Struggle with Report from Authorities That Trusted Man Molested 40 Children over 30 Years,” St. Louis Post-Dispatch (April 6, 2007), A1.

66.

Michele Mihalovich, “Man Accused of Molestations at Day Care Pleads Guilty to Lesser Charges,” Wenatchee World (September 18, 2010). The lesser charge was third-degree assault of a child. The information about previous complaints was contained in an affidavit filed by a Child Protective Services investigator.

67.

There are some states with a three-tier system that allows a middle category between substantiated and unsubstantiated, where there is evidence of abuse but not enough to “substantiate” the case—these are designated “indicated.” Without the distinction, the “unsubstantiated” category lumps together everything from cases determined to be untrue to those where there was definite evidence, but not enough to “substantiate.” A study of “unsubstantiated” cases reveals that many unsubstantiated reports involve either some form of maltreatment or preventive service needs appropriate to CPS intervention, and that using substantiation as a means of gauging the validity of a CPS referral is therefore intrinsically fallacious. Brett Drake, “Unraveling ‘Unsubstantiated’,” Child Maltreatment (August 1996) (1), 3, 261–271.

68.

Delores D. Stroud, Sonja L. Martens, and Julia Barker, “Criminal Investigation of Child Sexual Abuse: A Comparison of Cases Referred to the Prosecutor to Those Not Referred,” Child Abuse & Neglect, (2000), 24(5): 689–700.

10.1016/S0145-2134(00)00131-9

Crossref

Close

69.

Theodore P. Cross, Debra Whitcomb, and Edward DeVos, ”Criminal Justice Outcomes of Prosecutions of Child Sexual Abuse: A Case-flow Analysis,” Child Abuse & Neglect (1995), 19(12), 1431.

70.

Ellen Gray, Unequal Justice: The Prosecution of Child Sexual Abuse (Free Press, 1993).

71.

In Minnesota, there were no statistical indications that the age of the victim affected the likelihood of prosecution. In Wisconsin, cases involving very young children were approximately four times less likely to be referred for prosecution than cases in the middle age group (six to twelve). Tucker, “The Effect of Victim Age and Gender,” 109.

72.

Barbara Smith and Sharon Goretsky-Elstein, “The Prosecution of Child Sexual and Physical Abuse Cases: Final Report” (American Bar Association, 1993).

73.

Tucker, “The Effect of Victim Age and Gender.”

74.

Bruck and Ceci, “Unveiling Four Common Misconceptions,” Current Directions in Psychological Science (2004), 13(6), 229, 231.

75.

Lyon and Pezdek, “From Post-Mortem to Preventive Medicine: Next Steps for Research on Child Witnesses,” Journal of Social Issues (2006), 62(4), 833.

76.

She proceeded to discuss the McMartin case and the Jordan, Minnesota, cases in some detail, blaming investigators for the lack of criminal convictions. Civia Tamarkin, “Investigative Issues in Ritual Abuse Cases, Part I,” Treating Abuse Today, 4(4): 15. The two-part article was an edited and abridged version of an address to the Fifth Regional Conference on Abuse and Multiple Personality, June 1993, Alexandria, Virginia.

77.

Correspondence from Debbie Nathan to Richard Harris, Nightline. October 2, 1996. Reproduced in FMSF-News email from Peter Freyd (October 12, 1996).

78.

“A Child’s Word,” Nightline, ABC News (November 14, 1996). Transcript #4039-1, Koppel quote.

79.

Complaint Affidavit, Broward County Police Department, Offense Report LL95-12-2769 November 5, 1996, 2.

80.

Offense Incident Report, Sunrise Police Department, Report No. 94-17243 (includes physical evidence conveyed by Sandra Gibson, Nurse Practitioner).

81.

Nat Hentoff, “Distorted Journalism,” Village Voice (December 17, 1996), 22.

82.

There were more than fifty stories in the Lexis/Nexis newspaper database about the case on December 1, 1996—two weeks before Hentoff’s column was published—including one in his local newspaper. See Mireya Navarro, “Roses and Outrage at Funeral for 2 Young Girls,” New York Times (November 13, 1996), A14.

83.

Larry Welborn et. al., “Verdict in the Samanatha Runnion Killing: Guilty,” Orange County Register (April 29, 2005), 1. See also Arlene Getz, Jennifer Barrett, and Geoffrey Gagnon, “The Top Stories of 2002,” Newsweek (December 26, 2002).

84.

Hopkins had served on a special grand jury in San Diego that criticized prosecutors, pediatricians, and child protective service workers for how they handled child sexual abuse cases. Although seldom noted when this report is mentioned, a grand jury the following year issued a report that criticized this report as exaggerated and inaccurate.

85.

“Protesting Modern Witch Hunts,” Press Release, January 14, 1997. Justice Committee, Carol Lamb Hopkins, executive director.

86.

Richard Gardner, Salem Day of Contrition, Afternoon session (January 14, 1997) [transcription], 332, 361.

87.

Jennifer Hoult, “The Evidentiary Admissibility of Parental Alienation Syndrome,” Children’s Legal Rights Journal (Spring 2006) 26(1)

.

88.

“False memory syndrome” dismisses reports of sexual abuse by adults, generally blaming them on the therapist of the person making the accusation. Strangely, this syndrome is often claimed to exist solely on the basis of the denial of the person accused.

89.

Ohme described himself as “the silent man behind the scenes who was going to change the CAPTA law.” He said Dorothy Rabinowitz was going to write an article about him, but “I told her that I could not do it because it would blow our cover.” Email correspondence from Herman W. Ohme to Earl Rogers, Subject: “Confidential, Please” (November 19, 1999). On a now-defunct website from an organization that called itself the Ohio Association of Responsible Mental Health Practices, Ohme described his involvement with this issue: “When the Republican Party took control of the U.S. House of Representatives in 1994, after 40 years as the Minority political party, I saw the opportunity to change the CAPTA laws (Mondale Act of 1974) which had been the root cause of the child sex abuse hysteria and false accusations. I had been an active member of the RNC (Republican National Committee) for years and had some voice with the new party in control. I enlisted the help of nationally known CAPTA experts, Richard Gardner, M.D., Carol Hopkins, San Diego Grand Jury Foreman, to testify before the U.S. House and Senate Committee’s to overhaul the Mondale Act of 1974. Our team was successful in correcting some of the worst features of the old CAPTA law but were blocked from deleting the ‘mandatory reporting’ feature.” WWW.LTECH.NET/OHIOARMHP (accessed April 5, 2002).

90.

Eileen McNamara, “Hardly a Case of Persecution,” Boston Globe (January 15, 1997), B1.

91.

See e.g., “Complaint to Boston Globe for McCarthyite Smear,” http://mysite.verizon.net/vzex11z4/globsmer.html; Alexander co*ckburn, “Our Little Secret,” Counter-Punch (May 1–15, 1997).

92.

Voluntary Statement of Mark Glazer, Somerset County Prosecutor’s Office, August 25, 1995. 7.

93.

Voluntary Statement of Tyler Glazer, Somerset County Prosecutor’s Office, August 25, 1995, 8(19).

94.

Under the Michaels decision, the defendant must make a showing of “some evidence” that the victim’s statements were the product of “suggestive or coercive interview techniques.” Then the burden shifts to the state to prove the reliability of the statements by “clear and convincing evidence.”

95.

New Jersey v. Marzolf, Michaels Hearing, Somerset County Superior Court, Indictment No. 96-01-0055 (August 12, 1997), tr. 12, 18, 109.

96.

New Jersey v. Marzolf, Michaels Hearing (August 12, 1997), tr. 14, 93.

97.

New Jersey v. Marzolf, Michaels Hearing (August 12, 1997), tr. 37–38.

98.

New Jersey v. Marzolf, Michaels Hearing (August 12, 1997), tr. 88.

99.

New Jersey v. Marzolf, Michaels Hearing (August 12, 1997), tr .54.

100.

Here is a side-by-side comparison.

Statement to police, August 25, 1995 (p.4) Testimony in court, May 5, 1997 (p.6)

I went in the house to get my shoes on, and come to realize that Travis and Jimmy, my wife’s brother, were still in the house, but nowhere to be found. It was very quiet and I had made my progress to go up to the second story of the house into the living room, where Travis and Jimmy were last seen. Were not there. Got to the third landing, and to my left is Jimmy’s room and I had noticed that it was very quiet as I got to the bedroom, I noticed Jimmy hovered over Travis from behind Travis with his hands in his pants.

I basically went into the house and to go get shoes on to go look at a shed that was in the backyard with his father. Knowing Travis and James were in the house still, as I approached, I proceeded into the house, I did acknowledge that it was very quiet. And when I went up to the third landing of the house, I had viewed that Travis was standing in front of James. As I saw that James was hovered over with his hands in his pants.

Statement to police, August 25, 1995 (p.4) Testimony in court, May 5, 1997 (p.6)

I went in the house to get my shoes on, and come to realize that Travis and Jimmy, my wife’s brother, were still in the house, but nowhere to be found. It was very quiet and I had made my progress to go up to the second story of the house into the living room, where Travis and Jimmy were last seen. Were not there. Got to the third landing, and to my left is Jimmy’s room and I had noticed that it was very quiet as I got to the bedroom, I noticed Jimmy hovered over Travis from behind Travis with his hands in his pants.

I basically went into the house and to go get shoes on to go look at a shed that was in the backyard with his father. Knowing Travis and James were in the house still, as I approached, I proceeded into the house, I did acknowledge that it was very quiet. And when I went up to the third landing of the house, I had viewed that Travis was standing in front of James. As I saw that James was hovered over with his hands in his pants.

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101.

New Jersey v. Marzolf, Michaels Hearing (August 12, 1997), tr. 35.

102.

New Jersey v. Marzolf, Michaels Hearing, (August 12, 1997), tr. 95,4–6.

103.

Jane Mary Rawls, “How Questions and Body-parts Diagrams Could Affect the Content of Young Children’s Disclosures,” Lawtalk New Zealand (April 1996), 28–29. She concludes: “open-ended questions only is by far the safest option when interviewing children as it results in greater accuracy of reports.” (It is not clear whether this study was ever published in a peer-reviewed journal.) Quote from interview with Tyler: “Now I want you to take my pen and circle anywhere on these, this diagram that anybody touched you.”

104.

New Jersey v. Marzolf, Michaels Hearing, (August 12, 1997), tr. 36, lines 20–24.

105.

The judge took note of the fact that Professor Bruck had not actually heard the mother’s testimony, although it was apparently available to her on tape.

106.

New Jersey v. Marzolf, Decision on Michaels Hearing, (August 14, 1997), tr. 9.

107.

The father was asked why he waited an hour to call his wife. The defense tried to get into the boy’s school records and counseling records—all under the rubric of examining the “totality of the circ*mstances.” Professor Bruck made derogatory comments about the parents when I interviewed her on October 12, 2009. “They were calling the police all the time,” she asserted. No evidence of that was presented in court.

108.

Affidavit of Probable Cause, Lower Pottsgrove Police Department, October 29, 2002, (Comp/Inc. #D-685/10290257), 1.

109.

Police Criminal Complaint, Montgomery County, Pennsylvania, Incident No. 02-17153 January 17, 2003.

110.

Criminal Docket, Court of Common Pleas of Montgomery County, Docket No. CP-46-CR-0000587-2003.

111.

James J. Krivacska, “Sexual Abuse Prevention Programs: Can They Cause False Allegations?” Issues in Child Abuse Allegations, (1991), 3. He published another article in this journal written while an inmate at the Adult Diagnostic and Treatment Center at Avenel, New Jersey. James Krivacska, “Societal Myths About Sex Offending,” Issues in Child Abuse Accusations (2001), vol. 11. The article warned, among other things, that “after-the-fact association of ‘trauma’ of sexual abuse with the pleasant genital stimulation [a child] may have experienced (in, for example, a case on fondling) may ultimately interfere with their later experience of sexual pleasure as an adult.”

112.

The other eight signatories were Charles Brainerd, Kathleen Clarke-Stewart, Melvin Guyer, Timothy Moore, Peter Ornstein, Debra Poole, Amye Warren, and James Wood.

113.

Motion of the Scientists Concerned for Reliability of Children’s Reports, Accusations and Testimony for Leave to File Amicus Curiae, State v. Krivacska, U.S. Supreme Court, Docket No. 01-1326, April 2, 2002, paras. 5, 7.

114.

Unpublished Decision, Krivacska v. Special Classification Review Board, Superior Court of New Jersey Appellate Division, Docket No. A-1217-08T3, August 24, 2011.

115.

Many states have declined to institute taint hearings. The largest state that has followed New Jersey’s lead is Pennsylvania. Pennsylvania v. Delbridge, 855 A.2d 27 (Penn. 2003).

116.

Summit, “The Child Abuse Accommodation Syndrome,” 171–193.

117.

Lawrence Wright, “Child-Care Demons,” New Yorker (October 3, 1994). In a letter to the editor published on November 28, 1994, Wright acknowledged his claims were “wrong in every particular.” He admitted that Summit “did not in fact testify at the Michaels case” and that Summit’s original article “does not claim that denial is evidence of abuse.” Lawrence Wright, “Mistaken Identity,” Letter to Editor, New Yorker (November 28, 1994), 15–16.

118.

Maggie Bruck and Stephen Ceci, “Forensic Developmental Psychology: Unveiling Four Common Misconceptions,” Current Directions in Psychological Science (2004) 13(3): 229.

119.

Bruck and Ceci, Current Directions in Psychological Science (2004), 13(3): 230.

120.

Thomas A. Roesler and Tiffany Wind, “Telling the Secret: Adult Women Describe Their Disclosure of Incest,” Journal of Interpersonal Violence, (1994), 9: 327–338.

10.1177/088626094009003003

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121.

Kamala London et. al., “Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways That Children Tell?” Psychology, Public Policy, and Law (2005) 11(1): 211–213. The extended criticism of the Sorenson and Snow study appears to be well-taken, although original research into the Hadfield and Bullock cases would be necessary to justify a firm conclusion. Snow was censured for unprofessional conduct in 2008 and her license was suspended subject to a term of four years probation. Stipulation and Order, In the Matter of the License of Barbara W. Snow, Case No. DOPL 2007-7 (Division of Occupational and Professional Licensing, Utah Department of Commerce) February 15, 2008. Snow’s defense against these charges makes it clear that additional research would be required to justify a firm conclusion about what this license proceeding proves about Snow’s judgment and practice. Response to Notice of Agency Action and Answer to Petition, In the Matter of the License of Dr. Babara Snow (February 12, 2007).

122.

There were five defendants at trial. Duane Rouse was acquitted. The case name is the last name of two of the defendants. The first names of all the children in this case have been changed.

123.

She had previously been removed from her mother’s home. The record in this case does not indicate the reasons for removal.

124.

U.S. v. Rouse, 329 F. Supp. 2d 1077 (South Dakota, 2004). Judge Piersol concluded that “the trial testimony of Dr. Kagan and Dr. Farrell established that the children had been sexually abused. The children described the abuse to Dr. Kaplan shortly after they were removed from their home.” The judge quoted six paragraphs from the state’s brief summarizing the testimony from both doctors as to what they found and were told while examining the children.

125.

U.S. v. Rouse, Jury Trial, U.S. District Court for South Dakota, (CR 94-40015, July 27, 1994), tr. 205.

126.

When first interviewed about this case by the FBI, Desmond Rouse reportedly told Special Agent Pritchard that he “probably” touched Lacey’s “groin area.” He also reportedly said that if he abused the children he “must have been pretty drunk.” He later denied making the first statement; he said the second statement was taken out of context. U.S. v. Rouse, Jury Trial (August 8–9, 1994), tr. 1597.

127.

U.S. v. Rouse, Jury Trial (July 27, 1994), tr. 219.

128.

U.S. v. Rouse, Jury Trial (August 10, 1994), tr. 1908.

129.

U.S. v. Rouse, Jury Trial (August 9, 1994), tr. 1768–69.

130.

U.S. v. Rouse (8th. cir. November 12, 1996), slip opinion, text accompanying fn. 2. This opinion was reported at 100 F.3d 560. It was depublished less than three months later when the court granted a motion to rehear the case, so that only the orders and subsequent history now appear in the Federal Reporter. The “depublished” opinion still resides on the web at this address: https://law.resource.org/pub/us/case/reporter/F3/100/100.F3d.560.95-1559.95-1558.95-1556.95-1554.htm.

131.

U.S. v. Rouse, (8th cir. November 12, 1996; Loken, dissent). The majority does not attempt to respond to the factual details provided in this dissent. Instead, they allow, glibly, that “We do not quarrel with the sufficiency of the evidence” (fn. 20 in the [depublished] slip opinion).

132.

Judicial Notebook, APA Monitor (June 1997). The article emphasized how the court “relied heavily” on Ceci and Bruck’s 1993 article in Psychological Bulletin; it did not mention that the decision as vacated in early February 1997. The same claim was repeated in 1998, again without any mention that the decision was quickly vacated and then overturned. Metta Winter, “Children as Witnesses,” Human Ecology Forum (Winter 1998) 26(1): 8–12.

133.

The 2-1 decision issued November 16, 1996 was vacated on February 6, 1997 by an unusual grant of rehearing. 107 F.3d 557; 1997 U.S. App. LEXIS 2190. The case was set for oral argument on April 14. On March 3, the court issued a second order, stating “upon further consideration, the petition for rehearing is granted” but the order to schedule oral arguments was rendered moot and the hearing was cancelled. The same three-judge panel that overturned the convictions in November decided, again in a 2-1 split, to uphold the convictions. Judge McMillian switched positions by concurring with the majority decision written by Judge Loken. U.S. v. Rouse, 111 F. 3d 561; 1997 U.S. App. LEXIS 6659 (8th cir. 1997).

134.

U.S. v. Rouse, 111 F. 3d 561, 571.

135.

U.S. v. Rouse, Hearing on Motion for a New Trial, U.S. District for South Dakota, CR. 94-40015 (September 5, 2001), tr. 27.

136.

U.S. v. Rouse, Hearing on Motion for a New Trial, tr. 96.

137.

U.S. v. Rouse, 329 F. Supp. 2d 1077 (South Dakota, 2004), 1088.

138.

U.S. v. Rouse, 329 F. Supp. 2d 1077, 1080.

139.

U.S. v. Rouse, 329 F. Supp. 2d 1077, 1081. When the counselor met with J.R. to inform her that her uncles would not be coming home, J.R. told the counselor “that both her mother and R.R. had told J.R. to lie to the social worker in the summer of 1999.” This direct evidence of pressure to recant has gone unacknowledged in the witch-hunt narrative.

140.

U.S. v. Rouse, 329 F. Supp. 2d 1077, 1081. The court also noted that “R.R. did not recant her testimony during her interview with Underwager.” Indeed, “R.R. responded affirmatively when Dr. Underwager asked if Jesse did things to her that were not right.”

141.

Stephanie Woodward, “Yankton Sioux Seek Justice for 17-year Old Case at the White House Tribal Nations Conference,” Indian Country Today (December 6, 2011). See also, http://ncrj.org/the-ncrj-is-sponosring-the-yankton-four/.

142.

Kennedy v. Louisiana, 554 U.S. 407 (2008), 411 (“systemic concerns in prosecuting child rape”).

143.

Stephen J. Ceci and Richard D. Friedman, “The Suggestibility of Children: Scientific Research and Legal Implications,” Cornell Law Review (2000), 86: 33–108.

144.

Samuel R. Gross et. al., “Exonerations in the United States 1989 Through 2003.” Journal of Criminal Law & Criminology 95, no. 2 (2005): 523–553, 524. Gross now edits a project called The National Registry of Exonerations, which employs a much looser definition of exoneration, one that arguably negates the meaning of the word itself. Cases dismissed without any official finding of innocence are included, even when the dismissal was not based on evidence of innocence. https://www-law-umich-edu.libproxy.ucl.ac.uk/special/exoneration/Pages/glossary.aspx.

Using that definition, the Registry (as of September 28, 2013) included Kelly Michaels as “exonerated” despite: (1) the evidence of guilt elaborated in Chapter Five, (2) the lack of any recantations, (3) the fact that Michaels lost her civil suit, and (4) the lack of any official finding of innocence. Under the same dubious approach, the Registry also lists Sandra Craig (discussed in Chapter Three) as exonerated, despite the medical evidence and the lack of any official finding of innocence, and it lists Deborah and Alvin McCuan (also discussed in Chapter Three), despite the fact the neither of their daughters has ever recanted and the McCuan’s lost their civil suit. It appears that the desire to fit cases into the witch-hunt narrative continues to be much stronger than the facts that support such claims, even twenty years after the narrative first took hold.

145.

Louanne Lawson and Mark Chaffin, “False Negatives in Sexual Abuse Interviews,” Journal of Interpersonal Violence (1992) 7, 532–542. Bruck and her co-authors minimized the significance of this result, arguing that because very few children contract STDs “this sample again is not representative of the CSA population.” The authors offered no reason why children contracting STDs would be different from all other sexually abused children in some meaningful way that affects the pattern or likelihood of disclosure. The children in this study stand out for the strength of our certainty that most of the significant number of nondisclosures in the first interview were false denials, a problem never acknowledged in the witch-hunt narrative.

146.

Carey Goldberg, “Pediatric Experts Express Doubt on Au Pair’s Defense,” New York Times (November 12, 1997). Forty-seven pediatric experts signed the letter to the editor, published in Pediatrics (February 1, 1998) 101(2): 321–323.

147.

Battered-child syndrome is probably the oldest and most widely recognized syndrome involving child abuse. It was first described by this name in 1962 in a landmark article. C. Henry Kempe et. al., “ Battered-Child Syndrome,” Journal of the American Medical Association (July 1962) 181(1):17–24.

148.

State v. Ardolino, Docket No. CR-95-478, Penobscot [Maine] County Superior Court, (March 8, 1996), vol. IV, tr. 132.

149.

State v. Ardolino, vol. IV, tr. 131.

150.

Dr. Kristin Sweeney, deputy chief medical examiner for the state, went to the house and examined the root structure below the tree house to see if the roots protruded enough to cause a localized deceleration impact injury. She concluded they could not. The roots are “fairly broad and flat” and “they’re not protruding.” Tr. 55–56; Vol. VII, March 13, 1996.

151.

William Harwood, forensic chemist at the Maine State Police Crime Lab, examined eight containers and one envelope of leaves, twigs, bark, and fiber taken from the area under the tree. None of those items were found to be consistent with anything on the clothing Matthew was wearing that day. Where there should be extensive physical evidence, if Mathew had fallen, not a single fiber was found that linked the clothes he was wearing to the scene Tr. 119–124; Vol. VII, March 13, 1996.

152.

All quotes in this paragraph from letter from Dr. Ricci to William R. Stokes re State v. Ardolino (January 19, 1995), 2–4.

153.

State v. Ardolino, Excerpt: Testimony of David Ardolino (March 7, 1996), tr. 53.

154.

State v. Ardolino, Excerpt: Testimony of David Ardolino, tr. 54.

155.

Ardolino v. Maine, Affidavit of Maggie Bruck (on Motion for Post-Conviction Review), Penobscot County Superior Court, Docket No. CR-98-430, 32 (“we can have more confidence in a child’s spontaneous statements made prior to any attempt by an adult to elicit what they suspect may be the truth—such as David’s initial statement in this case”).

156.

Ardolino v. Maine, Affidavit of Maggie Bruck, 32.

157.

Deposition of Stephen Ceci, November 22, 1993. State v. Foeller, File No. 93-64975-FC (Fourth Judicial Circuit Court for Jackson County, Michigan), 133.

158.

Ardolino v. Maine, Affidavit of Maggie Bruck, 15.

159.

Ricci testified that he knew Matthew was “an active nine-year-old child” when he examined the records (tr. 149). He also spoke directly to the injuries that could have been accidental. Ricci identified such injuries (bruises and abrasions round the ankle, knees, elbows, and forehead; tr. 134).

160.

Declaration of Maggie Bruck, In the Matter of Riley B., Case No. CK40772/CK40775 (Los Angeles County Superior Court, July 25, 2001).

161.

Richard Gardner, Salem Day of Contrition, Afternoon session (January 14, 1997) [transcription], tr. 340. The witch-hunt narrative is filled with claims that CAPTA created financial incentives for “finding” abuse. In fact, the funding for CAPTA has always been miniscule compared to the massive changes it supposedly caused. Moreover, the largest portion of CAPTA money went to demonstration projects, which usually meant programs to prevent child abuse. Little CAPTA money has ever gone to state programs or services. There was a deliberate decision when the bill was crafted to provide only token funding of state programs. By statute, there was a mandate to spend 5 percent of the CAPTA budget on existing programs. The allocation of that money has never been based on the number of abuse cases, although that claim is often made by proponents of the witch-hunt narrative. To the contrary, there was a provision “to establish criteria designed to achieve equitable distribution of assistance under this section among the States.” HHS determined that “equitable funding” would be provided through a per child funding formula. The funding formula, in other words, is a function of “the number of children under 18 residing in the state.”

162.

Thomas Lyon, “The New Wave of Suggestibility Research: A Critique,” Cornell Law Review (1999) 84, 1004–1087

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