I've Worked As a Lawyer on Child Molestation Cases, And Just Because Woody Allen Wasn't Prosecuted Doesn't Necessarily Mean He's Innocent

Many times what it comes down to is whether a conviction can be obtained. And that's it. No matter what a child is saying, no matter if they're telling the truth -- that is what decides whether a case is prosecuted at all.

Feb 10, 2014 at 12:00pm | Leave a comment

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Prosecuting child sex abuse cases is a tragedy unto itself.

Over the weekend, Woody Allen came out with a letter in the New York Times entitled "Woody Allen Speaks Out" where he addressed the renewed allegations of sexual assault and said that after this, he would not address the issue of Dylan Farrow's accusations ever again.

In the piece, he wrote: "I naïvely thought the accusation would be dismissed out of hand because of course, I hadn’t molested Dylan and any rational person would see the ploy for what it was. Common sense would prevail. After all, I was a 56-year-old man who had never before (or after) been accused of child molestation. I had been going out with Mia for 12 years and never in that time did she ever suggest to me anything resembling misconduct. Now, suddenly, when I had driven up to her house in Connecticut one afternoon to visit the kids for a few hours, when I would be on my raging adversary’s home turf, with half a dozen people present, when I was in the blissful early stages of a happy new relationship with the woman I’d go on to marry — that I would pick this moment in time to embark on a career as a child molester should seem to the most skeptical mind highly unlikely. The sheer illogic of such a crazy scenario seemed to me dispositive."

This, of course, is in response to Dylan Farrow's open letter where she wrote, "What’s your favorite Woody Allen movie? Before you answer, you should know: when I was seven years old, Woody Allen took me by the hand and led me into a dim, closet-like attic on the second floor of our house. He told me to lay on my stomach and play with my brother’s electric train set. Then he sexually assaulted me. He talked to me while he did it, whispering that I was a good girl, that this was our secret, promising that we’d go to Paris and I’d be a star in his movies. I remember staring at that toy train, focusing on it as it traveled in its circle around the attic. To this day, I find it difficult to look at toy trains."

What does this widely publicized case playing out in the headlines again 21 years later tell us? To me, it proves one thing  with total certainty: Child molestation cases are perhaps the most difficult to prosecute and prove conclusively, and many accused abusers never make it to court simply because there is not sufficient evidence to do so. Of course, this doesn't always mean they aren't guilty, just that their crime cannot possibly be proven in a court of law.

How do I know this? I am a lawyer who has worked on exactly these kinds of cases, and for a number of reasons, they are incredibly hard to prove.

1. Many cases are dismissed or never charged simply because of a lack of evidence.

2. Confessions are difficult to achieve, and without one, winning a case is much more odds stacked against you than any other case because of the accusations in question.

3. A child is not a fully formed adult and many are deemed to young to take the stand.

4. Children are inconsistent and are eager to please adults. Testimony is difficult and unreliable, even when the truth is being told.

5. Many children do not come forward at all, and eventually fall through the cracks of the system.

One of the most heartwrenching cases I ever worked on involved the rape of a young 8-year-old girl. Not only did she have to take the stand to testify, but like the Allen case, it occurred during a bitter and acrimonious breakup. There was an attempt to obtain a penile plethysmograph (a device to measure sexual arousal on a man's penis), which never occurred, and even if it had been obtained, would not have provided the concrete evidence that a jury often needs to convict.

Even though we see it played out on so many "Law & Order" TV shows, it is still easy to forget. Many times what it comes down to is whether a conviction can be obtained. And that's it. No matter what a child is saying, that is what decides whether a case is prosecuted at all.

You need 12 people on a jury to agree to convict a person. Without proper and indisputable evidence (semen on clothing or bed sheets as detected by infrared technology), how do you get "beyond a reasonable doubt"? Physical evidence is challenging because unless you get a child to the ER for a rape evaluation, it is hard to tell months later if the hymen was torn. And even if the hymen was torn, there are other ways for this to occur. One case I dealt with was ruled out because mounds that were found in the vaginal area, which can be caused by rape, can also be caused by pure genetics -- again establishing reasonable doubt.

A trial is a quest for the truth. But when evidence can point in two different directions, the truth -- at least in a court of law -- is not readily discernible.

The psychological experts will always be conflicted in these situations. On the one hand, the defense attorney will be able to say that the abuse was a story created by the soon-to-be ex and implanted in the child's mind. Then the child starts filling in details that don't hold up on cross exam.

Because a child is involved, she is often -- understandably -- giving inconsistent versions, which can dramatically hurt the case.

Of course, the victim here is the child, and since we are dealing with someone so very young, inconsistency is entirely understandable -- but in the court of law, compassion is rarely a factor.

There are varying degrees of abuse. It could be fondling. It could be making the child touch the adult. It could be digital penetration. Those types of abuse will not produce physical evidence.
 
So then as a prosecutor, you have turn to the field of psychology and have a psychologist interview the child. Has the child's mood changed? Was she a good student before and now having difficulty in school? Is she exhibiting any type of withdrawal behavior?
 
Generally, psychologists will tell you that there is a "grooming" period where the abuser will do non-sexual acts to gain the trust of the child. Doing nice things, such as normal hugging. The problem with that is that most step-dads are trying to create a family atmosphere with the new spouse and her child. So any type of behavior could be classified as "grooming," even if there is no abuse.
 
We also have the issue of a psychologist's testimony holding up. The prosecutor's psychological expert will say that all the behavior of the child is consistent with child abuse. But on cross, a good defense attorney can get the psychologist to admit to a whole host of behaviors that are consistent with child abuse: if she acts out -- it's consistent with child abuse; if she withdraws -- it's consistent; if she cries -- it's consistent; if she laughs -- it's consistent.
 
The problem is that without a good physical evidence case, any behavior the accuser exhibits is consistent. The potential for reasonable doubt here is astronomical.
 
I think a mistake prosecutors make is to have the accuser/child testify on video and then play the video in court to the jury to avoid having to put the child on the stand to spare the child stress. I think that, while that's noble and protective of the child, it damages the case because a jury gets more from body language when the testimony is live. There are physical cues and body language. On an everyday basis we evaluate if people are telling us the truth by body language. When you take that away from a jury, it hurts the case.
 
The child will end up being interviewed half a dozen times before she has to testify. It's an ordeal. First the cops; medical evals; psych evals; the prosecutor; the defense may get to do a pre-trial examination; the grand jury and then the prosecutor again to prep her to testify and then finally the trial. It's a lot over a one year period for a child to take.
 
Prosecutors hate these cases. Nobody wants to touch them. They are that hard. 
 
The fact of the matter is that the pressure on the lawyers on both sides is tremendous. Everybody is expecting the prosecution to win and put the guilty bastard away. If the prosecutor loses, he's blamed for letting a child molester loose.
 
Some statistics place false accusations as low as 1 percent, and when a jury or a judge does not move forward, it does not necessarily mean the accused person is innocent. It means that the case simply cannot be won.
 
Of course, I would never claim to say I could point to Woody Allen's guilt or innocence, but I can say without a doubt, that innocence or guilt has very little to do with what is prosecuted. Evidence is is the key, and that's it.
 
In terms of verbal admissions, cognition only truly forms at the age of around 7 in children, and there is a high degree of suggestibility in these cases, which complicates matters to a degree that has made many in the law wary of "witchhunts" like the McMartin preschool trial in the 1980s. At that time, children began telling stories of baby bunnies being killed and ritualistic cult activities. It is one of the classic cases that has become legal shorthand for being careful about children's testimony.
 
In fact, in one study examining the prosecution of 1,000 child sex abuse cases for the Center on Children and the Law at the American Bar Association, the majority of the prosecutors revealed that they frequently decided not to proceed in prosecuting a sex abuse case simply on the grounds that a victim is too young to take the stand.
 
It's a heartbreak no matter which angle you are examining the phenomenon.
 
The Dylan Farrow-Woody Allen case is but emblematic of a greater tragedy that has been unfolding for years.
 
Children can be telling the truth, but the law does not always protect it.