What do you do if a child makes an allegation of sexual abuse? The child tells you that he or she has been sexually touched. It is a nightmare scenario, both for alleged abuser trying to defend him or herself, and for the parent trying to protect the child from abuse. This is not an issue that any attorney wants to hear either when it arises in a divorce or child custody case, but when it arises, an allegation of child sexual abuse has to be dealt with by Atlanta and Georgia attorneys. And the rules for children, and abuse are not the same as for other issues. This article will discuss the issue from the perspective of defending the accused, and from the perspective of prosecuting the case or protecting the child in a divorce or child custody case in Atlanta metro area and State of Georgia.
1. The first indication of child sexual abuse in Georgia often arises from statements that the child makes to another child or to an adult. What good is this in an Atlanta court?
The first indication of physical or sexual abuse on a child, often arises from statements that the child makes themselves. This can be quite frustrating because we all know that the hearsay rule does not allow out of court statements to be admissible into court. So what good is it? The answer is, at least in the State of Georgia, it is a lot of good.
This is because in the State of Georgia a child’s statement regarding abuse or sexual abuse, or abuse or sexual abuse done in front of the child on another child is admissible over a hearsay exception. What this means, in simple terms, is that if a child tells you about any act of abuse or sexual contact that was done to them, or done to another child in their presence, these statements are admissible into evidence in court, without the child even having to testify in court (in some cases, in other cases, the child has to testify, but the child does not have to actually say anything in their testimony at trial). It is a major exception to the hearsay rule.
This hearsay exception rule makes the out-of-court statement made to you more powerful than the same statement if it were made by an adult. If an adult were to tell you they had been physically or sexually abused, the statement would not be admissible because it is hearsay. But the rule is different for children. Making the out-of-court statements by children of sexual abuse more powerful than the same statement made an adult.
2. How does this work from the Perspective of the Defendant, defending against a child’s abuse or sexual abuse statement in a Georgia court, whether criminal, or in a child custody or divorce case:
This puts the person defending against such statements into a bad position. They have the choice as to whether or not to put the child on the stand to testify, and to have to cross-examine an often traumatized child (and it is difficult to pull this off with any effectiveness). And if the child does not respond to your questions in court (should you decide to cross-examine a child, or even your own child), the child’s hearsay statement (that will be testified to by the adult the statement was made to by the child) will still be admissible in trial in a Georgia courtroom. The child does not have to testify at all for the statement(s) to come into evidence, and in fact the child does not even have to speak for the statement to come into evidence. In no other sort of case can such material evidence be allowed in court, without the victim even having to testify or even speak. A dilemma for anyone defending the accused.
This becomes even more difficult, because statements the child may have made, that deny abuse, may not be admissible into court under this same hearsay rule, only statements that describe “any act of sexual contact or physical abuse”. Acts denying such abuse are not covered. If you want the statements made by a child that deny abuse, you need to put the child on the stand, and you need the child to speak on the stand.
Examining a child witness in court is a precarious business, and defending a parent or person accused of abusing a child physically or sexually is precarious. Understanding the rules, and the depths, and limitations of this hearsay exception becomes essential to anyone trying to defend a person accused of abuse or sexual abuse of a child. One example being is the use of inconsistent acts or statements by the child on cross-examination, without having to put the child witness on the stand (as is normally required to impeach a witness in this manner). The child sexual abuse and physical abuse hearsay rule in the State of Georgia is limited, and anyone defending against such charges needs an attorney familiar with the limitations of the rule, and how to attack those limitations.
It should also be noted, that in the end (and this does happen), if the claims are false, or manufactured, that even an alleged abuser, at least in a child custody or divorce case, can be awarded custody of their children in the end. But it is a harrowing process for anyone put in this position.
3. How does this work from the Perspective of the Plaintiff or Party Protecting the Child from Abuse in a divorce or child custody case in a Georgia court:
On the other hand, it is equally as stressful and high stakes when you are the parent or person, whether in a child custody or divorce case in the State of Georgia, or in a criminal prosecution, defending and protecting a child from his abuser.
The child abuse hearsay rule in Georgia makes things difficult for the accused, but it is not that simple for the party protecting their child. The rule is limited, and technical. Your attorney needs to equally understand the rule to prosecute the case.
(1) Take pictures of any wounds or marks on the child.
(2) Immediately bring the child to the child’s pediatrician, or counselor, or other mandated reporter. A third party, who is objective, and can examine not only any injuries or marks on the child as corroborating evidence of abuse, but can also listen to any statements the child makes that describe any act of sexual contact or physical abuse, and these statements will be admissible into evidence, and will be testified to be a neutral third-party professional. This is a person who is credible, and very difficult to cross-examine effectively.
(3) Report the abuse to the authorities, and get an investigation started. Such investigation should immediately include a forensic interview, using competent, and established forensic interviewing techniques that avoid the possibility of tainting the interview by improper suggestivity. The RATAC forensic interviewing protocol is well recognized and creates credibility in the process.
(4) If the authorities do not immediately conduct such an interview, employ a private source to do so. It should be video and audio taped, and done in a very professional manner using the proper protocols. Do not taint the child abuse victims interview. This is a common area where an attorney tries to attack the credibility of the interview, and the tapes of the interview should be protected from an accused sex offender that can become a source of sexual arousal.
The interview must obtain the child’s statement (if any such exists) regarding any act of sexual contact or physical abuse that was either performed with or on or to the child, or the child witnessed done to another. Those are the statements that are allowed into evidence in the State of Georgia in a criminal, child custody, or divorce proceeding in the State of Georgia over a hearsay exception.
(5) Prepare any corroborating evidence.
(6) Retain expert witness to guide in the case, and also to testify about the profile, methods, and means of sexual abusers and predators of children. As an example, expert testimony on child sexual abuse accommodation syndrome is admissible in Georgia courts. Expert testimony can be not only by mental health professional, but also police with extensive experience and training the methods and profile of child sexual abuse circumstances. Almost all child sexual abusers use “grooming” techniques to build affection and trust with not only the child victims but also their family. To reduce the risk of discovery, these techniques will often follow a slow progression. Expert testimony explaining the modus operandi may be introduced as long as it is not barred as character evidence, and for the attorney defending in such a matter, expert testimony may be introduced on a topic such as the lack of grooming behavior in the matter.
The child abuse and sexual abuse statute in Atlanta courts or anywhere in Georgia covers only statements “describing any act of sexual contact or physical abuse”:
A good defense attorney, or attorney defending the accused in a child custody or divorce case, will understand this limitation, and the party trying to prosecute, or protect an abused or sexually abused child in Atlanta courts or anywhere in the State Georgia, needs to understand this as well. A child molestation, abuse, or sexual abuse case needs to be prepared from the start of the case with the child sexual abuse or physical abuse hearsay exception rule firmly in mind.
4. A child victim of sexual or physical abuse is often manipulated, not only by the alleged abuser, but also non-offending caregivers of the child.
It is common for a child victim, after they disclose sexual abuse to be placed under both overt pressure, and subtle pressure, to recant their statement, to contradict their statement, or to just shut up. This sort of pressure can be intimidation, or force, or it can be something more subtle like telling the child they are bad, or responsible for what happened, or to make the child feel guilty that they will cause their parent to go to jail or lose love, or otherwise play on their guilt and fears, such as the child is responsible for destroying the family.
As such, these techniques of intimidation and what is essentially witness tampering, have to be understood and steps taken to avoid them. Particularly if the alleged abuser is a close family member, who will know the child inside and out, and know exactly which levers to pull. But understand that it is common for the accused to intimidate the child witness both overtly, and through more subtle methods.
Each case may differ, but there is an apt analogy. No one would make a rape victim socialize with their rapist, and the situation is not different, in a credible case, with evidence, if a child is forced to socialize with the alleged child molester, during either a criminal prosecuting, or in a child custody or divorce case.
In the end, protecting children from sexual abuse and physical abuse in Atlanta metro area courts and in the State of Georgia requires a thorough understanding of the rules of evidence, early preparation of the case based upon those rules, and use of effective expert witness. A party who, in the end, has falsely manufactured a case of child sexual abuse or physical abuse faces the real possibility of losing custody of their child themselves. So prepare the case properly and thoroughly.
Whether you are defending an alleged accuser of child sexual abuse or physical abuse in the State of Georgia, or representing the party trying to protect the child from such abuse, understand the rule, understand the facts, and prepare your case early and thoroughly. This is very serious business, and the rules and issues are not simple.
The author of this article is Scott Shaw, founder of Shaw Law Firm, LLC, a law firm dedicated to handling only family law cases since 1995. The firm practices in the State of Georgia, including the counties of Cobb, Fulton, Forsyth, Gwinnett, Paulding, Cherokee, Henry, Fayette, and DeKalb. The author can be reached at (770) 594-8309 or at [email protected]