When Even Your Adversaries Agree ...

A week or so ago, I wrote about a child sex case I had recently tried and lost. The case was terrifying. A girl claimed her uncle had fondled her when she was between the ages of 7 and 10. She first made these allegations when she was a teenager. She testified against my client when she was seventeen.

My client denied the conduct, and there was no corroboration of the girl's claims. Indeed, by the time the case went to trial, my client was unable even to recall many of the events surrounding the allegations. Small wonder. Who among us recalls all our contacts with nieces and nephews? Is it time to carry a webcam to record each and every moment we spend with a young person so as to have proof later in life that we never erred?

At trial, the state spent hours corroborating the inessential. Yes, Virginia, there was a living room, and a bed room, and a house with doors and windows, and family gatherings. The state did a masterful job of setting the scene for the allegations.

But bringing such claims a decade after the fact is simply wrong. And so is relying upon such evidentiary swill as "expert" testimony on so-called delayed disclosure and incremental disclosure of childhood memories. There is something wishy-washy about the testimony of an expert that explains away all inconsistencies. Indeed, a theory capable of explaining everything typically explains nothing much at all.

I wrote about that here and then moved on to another case.

Last week I was in several courthouses around the state meeting with prosecutors to discuss pending criminal cases. Two of them mentioned they had read my recent column, and, making sure that no one was looking, they told me they agreed. They are reluctant to use the so-called experts in these cases and they find fundamentally odd and unfair treating child sex cases as some sort of special phenomenon requiring new and relaxed rules of proof.

Neither prosecutor worked with the other. Both were in separate cities. And in neither instance did I bring up the topic, the loss and its consequences for my client are painful.

I find it hopeful that prosecutors harbor doubts about the virtual suspension of statutes of limitations in allegations of child sex. Hopeful, too, is the recognition that the recent tendency to credit virtually any such claim works a disservice to defendants, many of whom are literally blindsided a decade or so after an alleged event and have no idea what the complaining witness is talking about.

Child sex abuse is a serious issue, to be sure. No one denies that it occurs. But the latest bandwagon resembles the hysteria in Salem in the 1600s when it took but little to be accused, convicted and killed for being a witch. Too often, I suspect, child sex abuse claims are the tip of a larger iceberg. Submerged just beneath the surface are chaotic familial structures begging for release. That these forces erupt at the expense of often innocence defendants is a national tragedy we will be talking about in decades to come.

There is not a remedy for every wrong. Equity teaches that. Somehow trying to make the world safe for the fantasies of children has become a waking nightmare for many adults. I am glad that even adversaries in the courts are beginning to see this.