Defending a Childhood Sexual Abuse Allegation Decades Later
Few cases are harder to defend than an accusation that someone sexually abused a child years, or even decades, ago. Usually, the person making the allegation is now an adult describing something that supposedly happened when they were young. There may be no physical evidence, no witnesses, and very little documentation from the time. The case can come down almost entirely to one person’s word against another’s. And when the accusation involves a child, the defense starts at a real disadvantage.
One of the first things I want to understand is why the allegation is coming forward now. I don’t assume someone is lying because they waited years to report something. People delay reporting abuse for legitimate reasons. But I still want to know what led to the disclosure. Was there a particular event or conversation? Had the allegation been discussed with other people before law enforcement got involved? Had relationships or circumstances changed in a way that matters? Sometimes the answers explain the delay. Sometimes they raise questions we need to run down.
I once represented a man accused of conduct that allegedly occurred in the early 1980s. By the time the case was brought, he was in his sixties or seventies. He denied that it happened, but he couldn’t give me much more than that. He couldn’t reconstruct where he was or what he was doing decades earlier. Think about that for a minute. If something never happened, there’s nothing memorable to recall. His lack of detail didn’t make the allegation any more or less true. It just meant we had to look somewhere other than his memory for evidence.
That’s where the timeline becomes critical. If someone says something happened on a particular holiday, during a family vacation, or at a specific event, we may be able to find records or witnesses that show what was actually going on. But when the allegation is that something happened repeatedly over several years, with no particular dates, the investigation gets much harder. It’s hard to prove where someone was on an unspecified day thirty years ago. It’s also hard to find people who were around at the time, especially when witnesses have died, moved away, or simply don’t remember.
I also pay close attention to how the allegation was first disclosed and how it developed afterward. Richard Jaffe and I have given presentations on taint hearings in sex cases, including work published in The Champion magazine. If the allegation first came out while the person was still a child, I want to know whether the interview process may have shaped what the child said. Or what shaped the child’s statement prior to even arriving at the child advocacy center. Forensic interviewing has improved over the years, but quality still varies. Quite frankly, I’ve been most concerned about some of the interviews I’ve seen in smaller jurisdictions, where specialized resources can be limited.
Anyone who investigates the same type of allegation over and over has to be careful about deciding what happened before the evidence is in. That goes for police officers, forensic interviewers, and defense attorneys. When I review an interview, I want to know what the child said without prompting, what questions were asked, whether the interviewer introduced certain details, and what conversations took place before the formal interview. I’m not assuming the child was coached. I want to know whether the account was obtained in a reliable way.
When the person making the allegation is now an adult describing events from childhood, the problem changes. We may be dealing with memories that have been discussed and revisited for many years. I want to know what was said when the allegation first surfaced, who heard it, and whether the account has changed. Not every inconsistency matters, and people remember events differently without being dishonest. But when testimony is essentially the only evidence in a criminal case, how that testimony developed deserves a hard look.
Medical records and other old documents can be worth tracking down, but they have to be read carefully. A normal physical exam does not rule out sexual abuse, but at some point, its very questionable that any illegal conduct occurred when the evidence is just not there. For example, we once had a case where the alleged victim stated she was raped daily for over five years. However, the medical exam showed the appearance of the hymen. Although there are some situations where the hymen can still be intact after penetration has occurred, that diminishes greatly when we are dealing with daily abuse for years. Because of this, we need to be able to locate and challenge the medical evidence in all of our cases. It can certainly help evaluate a particular allegation, but it needs to be reviewed by someone qualified to explain what the findings actually mean. I don’t want to overstate evidence just because it looks good for my client, any more than I want the prosecution to overstate evidence against him.
Then there’s the jury. Jurors often have a hard time understanding why a child would make up something like this. Even when the person testifying is now an adult, the fact that the alleged conduct happened during childhood can heavily influence how jurors see the case. In my experience, the presumption of innocence is particularly hard, if not impossible, to hold onto in these trials. Legally, the burden never shifts to the defendant. As a practical matter, I often feel like the defense has to work twice as hard to keep jurors focused on what the government can actually prove.
That’s why these cases can’t be defended simply by saying my client denies it. His denial matters, of course. But I want to find whatever independent evidence still exists: the timeline, the relationships, the original disclosures, the interviews, and any records that might help us test the accusation. I also want the jury to know my client as a person, so the allegation isn’t the only thing anyone knows about him.
A person reporting childhood abuse deserves to have it investigated carefully, and the person accused deserves the same presumption of innocence as anyone else. But time can make defending against that allegation extraordinarily difficult, particularly when the person accused has little more than his denial and the evidence that might once have existed is gone.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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