Tuesday, August 19, 2014

False Allegations-How do you defend against false allegations of abuse?

Mark Swarthout Law & Legal Issues Supervisor

If you did abuse your child, stay away, hire a good criminal defense attorney, and get psychological help. Your child needs a parent, but not enough to have to tolerate abuse. A child's rights to be free from harm, always takes precedence over any parent's rights.
Defending Against False Accusations of Abuse
(Ed.- Falsely accusing your former spouse of child abuse is a common tactic in the Family Court System. Don't be surprised if your ex throws this one at you. Given the current political and social attitude towards child abusers. It has become a witch hunt to eradicate these animals from our society. Because you are going through a divorce the chances that this tactic will be used are very good. The reason is simple: "If you are accused of being an abuser, then the kids will go to mom and you will pay through the nose to support her.")
First, you must fully understand that when defending abuse cases the accused is guilty until proved innocent. It is arguably the one crime or tort where the accused must literally try and prove a negative. To do so, please know that most judges and juries will err on the side of caution - on the side of a woman's or child's abuse outcry.
There are three types of accusers:
1. Malicious
2. Mental
3. Mistaken
While only 2%-5% of abuse allegations are false; ones made in bad faith with malice aforethought, another 60% or more are unfounded, or without foundation. It is essential that your defense team be adept at adjoining science with the law. In other words, your case will require an expert, or experts to work with your attorney because most attorneys do not understand what source misattributions are, or what other conditions could cause bilateral retinal hemorrhages, or the significance of male propensity testing in an abuse case.
It is essential you choose the correct attorney(s) to litigate (notice I did not type mediate) your case(s) in juvenile, family, criminal, and/or administrative law court. You may also need a forensic trial expert consultant to work with your litigator(s) and help she/he/them with questions on Direct and Cross Examination of all witnesses, especially experts.
Impeaching a young child's outcry of sexual abuse cannot be done alone by an attorney without an expert reviewing and critiquing the child's forensic interview on DVD/Video/Audio/Transcript, therapists' session progress notes, medical rape exam report, and CPS/Police Intake notes, reports, et al. Lawyers can only conduct cross examination and recross of adverse witnesses in court. They cannot issue reports that can come into evidence on the record and cannot testify in court as experts to reasonable degrees of scientific certainty.
Make no mistake. In cases of he said - she said - and/or what a young child said - with no proof or evidence, your win or loss in court may very well come down to a battle of the experts. And I can tell you, from my 25 years of experience in this field, they are not all created equal. But, take solace in knowing that an aggressive and proactive defense team and strategy can intimidate and force the prosecution/plaintiff/petitioner into a settlement; one that not only can clear your good name, but also afford you normal parenting time with your child(ren).
You should realize the impact that child abuse allegations or charges may have on your life. As a suspect in an abuse case, you may have your child or children removed from your care, lose custody or visitation rights, be arrested and jailed, ruin your future career prospects, and in some cases, have friends and relatives turn against you. If it is a sexual abuse charge, add to the list having criminal charges filed against you, your name added to a Central Registry of potential child abusers, and label yourself a sex offender.
This is all before you have been convicted, possibly not even charged with anything, and are supposedly presumed innocent until proved guilty. You may find yourself fighting charges in civil, criminal and juvenile court, sometimes all at the same time. If convicted, you may be sentenced for up to life in prison depending on the charge and the state in which you are convicted.
To make matters worse, a San Diego Superior Court Judge recently ruled that hearsay is now admissible as evidence in cases of child abuse. What this means is that the standards of evidence required for common criminals don't apply to child abuse cases. It is important to deal with the issue of child abuse in our society. But denying individuals their Constitutional rights and due process of law to that en d is no t the way. WHAT ABOUT THE CHILDREN?
You should be aware o f the problems the child in an abuse case may face. They may be separated from you for long periods of time. Years of separation are not uncommon in these cases. They may be subjected to various physical and psychological examinations.
During the interviewing process, they may be turned against you and eventually come to believe that something really did happen (Ed. - Case in point is the McMartin case where the "ethical" professionals guided the interrogation of the children to build their case. These are the same tactics used in POW camps as psychological warfare. All in the "best interest of the child" mind you!) Poorly trained interviewers often "coach" a child into giving the answers they want. The child may become confused by the leading format of the questioning and try to give the answers they believe the authority figure wants to hear. The child becomes labeled an "abused child" and may be subjected to psychological treatment, furthering their belief that something must have happened.
The legal system is set up to protect the child at all costs. The theory in general is, if a judicial mistake is made, let it be on the side that assures the safety of the child. This is a fact that can greatly hurt you and your child.
From the moment an allegation is made, you will generally be treated as guilty and separated from your child. Most interviews are conducted with the assumption that something did occur. An unbiased investigator is rarely seen. Most interviewers are trained to believe that children don't lie, especially in divorce and custody situations.
The Court tends to believe the "experts", even if the "expert" is a poorly trained social worker or a physician who has never had experience with an abuse case. A small child's testimony about an event that supposedly occurred up to several years before your trial is enough to convict you in many states, even if no other evidence of abuse exists. The attitude of the public and the media towards an abuse suspect is usually hostile and prejudiced in a trial situation.

  • Have the allegations become worse since they were first made?
  • Does my attorney have a successful defense record in handling child abuse cases? How much experience does he/she have in dealing with this type of case?
  • Have I arranged for experts who are nationally recognized in the area of child abuse to testify for my defense?
  • Have I taken aggressive, effective action in destroying these allegations or have I just been reacting to what the other side is doing?
  • How can I improve my situation TODAY?
  • Do have all interviews with the child videotaped.
  • Take all allegations of abuse very seriously from the moment it occurs.
  • Do hire an attorney who believes in your innocence.
  • Do have the child examined by a pediatrician or (if appropriate) a psychologist of your choosing, if physical or sexual abuse is alleged.
  • Do not rely on the legal system to clear you, even tho ugh you know you are innocent.
  • Do not talk to the press.
  • Do not take a polygraph or lie detector test.
  • Do not take "good advice" from people around you who mean well, but know nothing about this type of problem.
  • Do not hire an attorney who has not won this type of case in the past.
  • Do not make any Plea Bargains or legal decisions with the prosecutor without careful consideration. No matter what you are told, you may not realize the implications of such action.



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