|  Unquestionably,
the accusation of a child being sexually abused by her father or
stepfather is unthinkable. It is a horrible crime and is one that
is frequently met with very severe consequences for the offender.
The mere accusation itself against a service member will generate
immediate reaction by the authorities, both civilian and military,
frequently before criminal charges are initiated.
From the Virginia state perspective, Child Protective Services
will immediately initiate an investigation and will determine if
the accusations are “founded.” If so, the person who
is the determined by CPS to be the abuser will be provided notice
that he will be registered with the state. CPS will also frequently
proceed to secure a Preliminary Protective Order from the local
court, which will serve to prohibit the suspect from having any
contact with the child, as well as other children of the family.
The civilian police will conduct an investigation and secure the
necessary physical examination of the child. The suspect will be
questioned by the police, frequently with a representative of CPS
present during the interrogation. The Navy’s Family Advocacy
Program will be advised of the allegation and an investigation will
be conducted by that agency also. The service member’s command
will generally also issue a Protective Order to the accused, ordering
him to not have any contact with the child. As a result of the protective
orders from the local court and the command, the service member
will most likely be in a situation where he will be totally unable
to contact his family, to include the children and possibly his
wife for an extended period of time until the allegations are resolved
- an event which may take many months to happen.
Criminal charges can come from either the civilians, or the Navy.
Occasionally, the civilians will charge the sailor, but thereafter
relinquish jurisdiction of the case to the military authorities.
From a defense counsel’s perspective, I would much rather
have the prosecution of the case handled by the military authorities
since the rights of the accused in the military are much broader
than those rights generally available in the civilian courts. Frequently
however, the civilian authorities will not relinquish jurisdiction
and will prosecute the case to the end. Upon arrest by the civilian
authorities, the defendant will be frequently held in jail without
bail. In serious sex abuse cases, the Virginia statute provides
for a presumption of “no bond,” which means the defendant
can literally spend months in jail awaiting the prosecution of the
case. For the service member, that means he is suddenly thrust into
an “unauthorized absentee” status and his pay will immediately
stop until he is released from jail. The military can initiate administrative
separation action against the sailor before the criminal trial,
however they frequently will await the culmination of the case with
a conviction before they do so. If the sailor is convicted by the
civilian court, he will most likely serve many years in prison and
eventually receive an Other than Honorable Discharge certificate
from the Navy.
When you read something like this I am sure you say GOOD, HE DESERVED
IT! But, let’s take a few minutes and look at the ultimate
of all horrors - the case where the sailor has been falsely accused.
There he is, convicted of awful crimes, spending many years in prison
and being discharged with an OTH for offenses he is NOT GUILTY of
- HE DID NOT DO THIS! Is this some defense lawyer telling a story,
or can this really happen? Believe me – IT CAN HAPPEN!
I just tried a child sex case in a local state court. My client
was not in the military, but his case is an excellent example of
what really can happen. I’ll refer to my client as Paul (not
his real name). In April of 2002, Paul was indicted by a local grand
jury for rape and two counts of sodomy of his stepdaughter, Kathy
(not her real name). At the time of his arrest, Paul was a resident
of a mid-western state where he had moved to after he and his former
wife separated. My client and his former wife had a young son, whose
custody was with the mother. On Easter Sunday of last year, Kathy
was allegedly asked by her mother if she would like to go back to
live with Paul, at which time the child (then age 12) allegedly
told her mother that she did not want to because of what Paul had
done to her when she was little (apparently back to the age of 4
½ years old until about age 9). The child supposedly told
her mother that every time the mother went out, my client sexually
assaulted her. The police were called and the child was immediately
subjected to a SANE evaluation (Sexual Abuse Nurse Examiner). The
SANE examination resulted in a report of an “abnormal finding
consistent with an old healed injury with tissue separation.”
That evidence was apparently taken before the grand jury and my
client was indicted for the three offenses, each of which carried
of minimum of 5 years and a maximum of life in prison if convicted.
Although we were able to secure our client’s release on bond
so that he could return home, he was prohibited from having any
contact with the child, or her family, which necessarily included
his young son.
The case finally was heard before a jury two weeks ago. Since my
client was directly indicted, I had no right to interview, or even
see the child prior to trial. A couple of months prior to trial,
I received some information from the prosecutor to the effect that
the SANE report had been partially contradicted upon review by a
doctor who opined that the “abnormal finding” may very
well have been related to a mark that was congenital in nature,
meaning she was born with it, and therefore they could not say if
it was a site of an old healed injury as reported. With this information,
I moved the Court to prohibit the prosecutor from presenting testimony
related to the SANE examination and report and my motion was granted.
The prosecutor was not allowed to call the nurse to testify and
they had no medical evidence to support the allegations. Although
I repeatedly sought to secure a dismissal of the charges at that
point, the prosecution of the case continued. When my client appeared
in my office the night before trial, with his new wife, I let him
know in no uncertain terms that that night may be his last night
as a free man. As I told him, if the child is believed and he was
convicted, he was going to prison most likely for the remainder
of his life.
After we selected our jury, the prosecutor made her opening statement,
telling the jury that the child “will tell her story.”
The prosecutor lead her through the details of her story of sexual
abuse by her stepfather and how he would give her $ 50-60 each time
he sexually assaulted her. However, on cross-examination, her “story”
quickly unraveled. The fallacy of her accusation quickly revealed
itself as the girl responded to my questions and described to the
jury how “every time” her mother went out, sexual acts
would occur and she would be paid $ 50-60. She testified to the
effect that when she was as young as 4 ½ years old, twenty
outings by her mom would leave her with over $ 1,000.00 in cash,
which she would then go the toy store with her mom to buy toys.
The accusations escalated, with the girl testifying that 40 outings
by her mom would leave her with over $ 2,000.00 to spend at the
toy store. The more she testified on cross-examination, the more
unbelievable her story was. I always watch the jury during testimony
to see how they react to what they hear and it was clear to me that
almost immediately, the jury knew the girl was not telling the truth.
After the girl testified the mother took the stand and although
the prosecutor attempted to repair the damage done to the case by
the cross-examination of her daughter, I felt there was not a person
on that jury who could convict based upon the evidence they had
heard. I rested my case without putting on any evidence and after
55 minutes of deliberation, Paul was fully acquitted.
After seeing a case like this, you have to ask how could something
like this happen? How can the Commonwealth of Virginia take a case
like this to court and put a man’s life in jeopardy like that?
I am confident that the child came across to the police and the
prosecutor as sincere. Regrettably, I do not feel they probed her
story sufficiently, or fully looked at any possible motive for her
to not be telling the truth. What role did her mom have in all of
this? Was the fact that her mom and my client had a child a factor
– was it a case of the mom trying to cut off contact between
the boy and his father? I certainly had those thoughts, but could
never prove it. After he was acquitted, Paul was able to go home
to try to put this behind him. He still has not seen his son –
his ex-wife has not permitted it yet, but I will take care of that
in court. Paul had already been registered by the state as having
abused this child – another problem which I will have to get
resolved for him.
There is a tremendous amount of sexual abuse of children actually
occurring out there and regrettably much of it goes undetected.
Our society is, and should be very protective of our children –
however it has become way too easy for a child sexual abuse prosecution
to occur when in fact nothing ever happened. Sexual abuse of a child
is horribly WRONG, but so is falsely accusing a man of sexual abuse
of a child, especially his own child, when he did nothing wrong!
“Paul” was lucky, it all worked out for him - if it
had not, he’d be in prison right now.
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