By John A. Smietanka
Michigan Bar Journal, June 1988

Ten years ago in a Michigan County Circuit Court, a jury stunned the prosecution and crushed the ten-year-old victim by acquitting her father of sexually abusing her. The foreman sought out the girl's counselor in the hallway a few minutes later and said, "We just couldn't believe any father would do that to his daughter."

Child sexual abuse is a private affair, most often occurring in the privacy of the home. Girls are most often the victims. The perpetrator may be a chronic pedophile, or far more likely, a member of the victim's close or extended family. The pain and injury may be permanent or passing depending upon the victim, his or her family and support systems, age, psychological constitution, circumstances of the assault, and availability of treatment.

The focus of this article is identification of the principal issues and problems as an alleged case of child sexual abuse is considered by law enforcement for prosecution.


Most of these prosecutions in Michigan are brought under the criminal sexual conduct code (MCLA 750.520a, et seq.) with ancillary provisions elsewhere in the Penal Code. Though there are gaps in the substantive law, for the most part Michigan law adequately defines the problem.

Identifying the Offender And Proving it in Court

Evidence of the abuse often begins and ends with the victim alone. Casual complaint of pain on her "bottom" or perhaps a period of unusual behavior followed by a tentative revelation by the child to either a family member, teacher, counselor or the like, can be clues. A delay of perhaps weeks, months, or years between the sexual assault and the revelation of the abuse to a third person is neither unusual nor a sign of lack of reliability. Michigan courts, however, have had difficulty adjusting the rules of evidence to adapt evidentiary rulings on admissibility to psychological reality. See People v Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982).

The goal of all reform should be getting at the truth and protecting our most precious but vulnerable citizens—children—from abuse by either the offender or the "system."

Special training and skill are required to interview a child about sexual abuse, as opposed to other types of antisocial behavior. Sensitivity to the importance of bringing out of the child only that which actually occurred, while avoiding suggestions of an assumed occurrence, is critical at the initial interview. Some methods of successfully bringing difficult and painful experiences to the surface include patient, non-intrusive attempts for the child to expand verbally on previous statements, use of anatomically correct dolls, and the use of drawings.

Investigators and prosecutors often fail to limit the number of times the child must relate what happened. Many case are replete with interviews and re-interviews by family members, social workers, police, prosecutors and psychologists, all before the child even enters the courtroom for the first hearing.

Witness Assessment

Early assessment must be made to determine whether a child is unable to testify because of psychological trauma, age, or mental or emotional immaturity. The use of a person knowledgeable about sexual assault, with forensic experience, will prove critical. While the trial attorney may well be a good judge of how the trier of fact will react to a child witness, the attorney may not qualify to assess the trial's effect on the child.


When the alleged assault comes to light, there ought to be an attempt to obtain as much corroboration as possible. There should be a physical examination of the victim to determine whether there is any trauma or residual trace of evidence (such as semen) present. Attempts should be made to interview any other witnesses. Likewise, any physical evidence found at or near the place of assault should be thoroughly examined. Examples are as diverse as the cases, but can be as simple as the placement of furniture or clothing in a room appearing as the child remembers.

An analysis of the child's statement can provide intrinsic corroboration by the application of common sense and logic. Questions should be asked such as, "Has this child described body parts or functions to which a child of this age would not be exposed unless abused?"

The criteria prosecutors use for judging the reliability of statements of adults do not fairly apply to those of sexually abused minors. Delay in reporting a crime, lack of detail considered important, contradictions among multiple statements, omissions of events in a first statement that are supplied later, or retraction of the allegations do not automatically indicate unreliability. Statements of the sexually assaulted child may, under these criteria, appear to be unreliable; when in fact, they show a consistency with a pattern, which is repeated in many victims of sexual abuse.

Courts now are beginning to recognize a special knowledge surrounding the psychological reactions of sexual assault victims. They can predictably include contradictions, omissions, delay, lack of detail, retractions, as well as the presence of guilt feelings. Additionally, when the perpetrator is a family member or is emotionally close to the child, feelings of love for one's dependence upon the perpetrator can produce a strong desire to protect the perpetrator. The prosecutor should become knowledgeable of the field, consult with developmental psychologists or consult with a child sexual abuse counselor when evaluating a case.

Once the prosecutor has determined that he or she believes a crime has occurred and that a particular person is responsible, he or she must examine another set of problems, which often have no relationship to a particular case.

The criminal justice system itself provides the first area of concern. The relentless waves of interviews, tests, hearings, motions and adjournments of the above are defined as a "system" only in the loosest sense. Further, the traditional lack of attention to the rights and fair treatment of children is unjust.

The prosecutor must fight hard to reduce the interminable delays in these cases for the sake of justice and the mental health of the children.

Courtroom testimony is stressful for adults. A five-year-old child forced to go into a large, alien room peopled by strange adults all intently and critically staring at him or her may forget his/her own name. Further, the child is asked to sit in an uncomfortable chair, be examined by adults obviously uncomfortable asking questions about sexual matters (of a child who could be their own) in a jargon which is governed by rules first designed a thousand years ago. Finally, the child is faced by a person often frightening, who has perhaps threatened the child to keep silent, and/or for whom the child instinctively and by training has come to feel love or dependence.

Then there is the jury, the voice of community common sense and judgment, which must be considered. Jurors may well have retained certain myths about child sexual abuse such as that the child was "seductive," that children always fantasize and are unreliable witnesses, that incest only occurs in "lower-class" families, and that if it really happened the child would have immediately reported it.
The Michigan Legislature and courts have begun to tailor our system with some newly perceived realities.

This movement should not be seen as denigrating the overall goals of protecting the rights of individuals suspected of or charged with crimes involving child sexual assault as well as the child-victim.
The goal of all reform should be getting at the truth and protecting our most precious but vulnerable citizens—children—from abuse by either the offender or the "system."
There is a growing body of literature about the problem. For a beginning primer I would suggest The Sexual Exploitation of Children, A Practical Guide to Assessment, Investigation, and Intervention, Elsevier Science Publishing Company, Inc. New York, 1967.

As recently as 1974, David R. Walters, a clinical psychologist wrote:

Virtually no literature exists on the sexual abuse of children. This problem is shrouded by misinformation, myths, and ignorance in the lay and professional communities alike. Sex is a forbidden topic among many people, and we will see that this taboo had had far-reaching and damaging implications in understanding and treating sexual abuse.

Physical and Sexual Abuse of Children, Indiana University Press, Bloomington, Indiana, 1974, p. 111. Others are those dealing with cruelty to children (MCLA 750.136), furnishing obscene books to a minor (MCLA, 750.142), and child abusive commercial activity (MCLA 750.145c).

In rejecting the "tender years" exception to the hearsay rule, the Michigan Supreme Court adopted a restrictive view of the Michigan Rule (then MRE 803). It found that the exception derived from People v. Gage , 62 Mich. 271 (1886), and was from its birth only a rule of corroboration, i.e. after a child had testified, the first statement to another was admissible to support credibility. In People v Baker, 251 Mich. 322 (1830), the Court said:

The rule in this State is that where the victim is of tender years the testimony of the details of her complaint may be introduced in corroboration of her evidence, if her statement is shown to have been spontaneous and without indication of manufacture; and delay in making the complains is excusable so far as it is caused by fear or other equally effective circumstances. An assault made by the father of the victim and his admonition to her not to tell what had happened are as effective to promote delay as threats by a stranger would have been. A child would ordinarily have no sense of outrage at such acts by her own father, and complaining of them would not occur to her. Her telling of the affair would more naturally arise as the relation of an unusual occurrence and might be delayed until something arose to suggest it. The complaint to Mrs. Schmidt was admissible [251 Mich. At 326].

The majority then ruled on the principle of inclusio unius, exclusio alterius to hold that since the "tender years" exception was not specifically included in MRE 803 (nor was there a catch-all "equivalent circumstantial guarantees of trustworthiness" exception as in the Federal Rules of Evidence (FRE 803(24)]), it must mean that the Gage and Baker rules didn't' survive the 1978 codification.

The time has come for a forthright re-examination of the phenomenon of young sexual assault victims and their first and subsequent revelations of the abuse. Whether that should occur in a legislative or judicial context is an open question due to the overlapping concerns the two branches have for court procedures, including the rules of evidence.

Evidence of the child's version of what happened should be admissible as substantive evidence and/or in corroboration of courtroom testimony.

The well-publicized "sex-rings" prosecutions in Scott County (Jordan), Minnesota in 1984 have given rise to what may be the definitive case on the consequences in federal civil rights action (42 USC 1983) of the learning process in which we are engaged in this field. See esp. In Re Scott County Master Docket (#1), 619 F.Supp. 1534 (1986); Myers v Morris, 810 F.2d 1437 (8th Cir. 1987), and In Re Scott County Master Docket (#2) (D. Minn.), slip opinion released for publication Nov. 2, 1987.

These extraordinarily complex cases deal with some of the most sensitive issues in this developing area. On the problems associated with interview techniques see Myers v Morris, supra. at pp. 1458-1461.

The case also focuses attention on the roles of prosecutor, police, social workers, and psychologists, separation of children from their parents penciente lite, in the context of federal civil liability under 42 USC 1983.

Where assaults are by a pedophile, it is not at all unusual for him to take and keep photographs of his victims at his home.

People v Pullens, 145 Mich.App. 414; People v Beckley, 161 Mich.App. 120; People v Matlock, 153 Mich.App. 171; and People v. Miller, Mich. Ct. of Appeals Docket No. 92490 (Dec. 8, 1987); People v Skinner, 153 Mich.App. 815 (1986).

In this regard, far from being totally malleable, I saw a child of six, even while describing long-term sexual abuse by her father and then her mother's new boyfriend, excise from her testimony facts which would have shown the mother knew and tolerated that abuse. She had just previous to coming into court given us such details, but was visibly moved by seeing her mother in court. She never lied but simply did not volunteer information involving her mother.

The video-taping of children's testimony provided by MCLA 600.2163(a) (criminal cases) and MCLA 712A.17(b) (probate court) are examples. Also see MCR 5.972(c)(2) [child protective proceeding rule], and in re Freiburger, 153 Mich. App. 251 (1986).