Delivered by John Smietanka
Lake Superior State University
Sault Ste. Marie, Michigan
February 1993.

I believe this observation will be found generally true: That no two people are exactly alike in their situation or circumstances as to admit the exercise of the same Government with equal benefit; that a system must be suited to the habits and genius of the people it is to govern, and must grow out of them.

Charles Pinkney of South Carolina
June 25, 1787
Reported by James Madison
Debates in the Federal Convention of 1787

Tonight, as winter blows around us again, we look for an evening at a document of mythic magnificence, the United States Constitution and its Bill of Rights. We will take it apart piece by piece, phrase by phrase, to see what it means and how it lives today. But before we do that let us take a few minutes to understand where it came from, its historical and philosophical birth.

In the summer of 1787, representatives of 12 of the 13 States, bound together by the geography of continent and ocean, by 200 years of separate lineage growing slowly together and by an eight year war of rebellion from the British Crown, gathered in Philadelphia. Their commission from the Continental Congress and their respective States, was to consider the state of affairs of the Articles of Confederation under which the former British Colonies had operated for six years formally (and for several before that informally), and to propose whatever changes were appropriate to improve it. They did consider it, rejected it in toto, and proceeded to create a new Constitution.

Meetings like that Convention have not in their dynamics radically differed throughout the ages. People gather, charged with organizing and reorganizing themselves as businesses, school boards, faculty committees, environmental groups, and engage in similar tasks today. People quickly find areas of agreement and of disagreement; they develop leaders and followers, and the group gadflies. Members each come from somewhere, with different constituencies and interests to protect: they have declared and hidden agendas. So it was with the "Federal Convention of 1787."
But the key differences here were the intensity of the social storm raging about them and the quality of the delegates.

Though summer in Philadelphia would seem not comparable to Sault Ste. Marie in the winter, in some ways a parallel exists. Tonight, if we were out sailing with the winds of Lake Superior blowing snow over cold, dark waves on a cloudy night, we could feel something of the fear and uncertainty the delegates were affixed by 200 years ago. Their world was adrift, like the ship I described. The union they lived in, born out of compromise and a common enemy, was now falling apart at the seams. States, once relatively united, were now at each other's throats, talking of destruction tariffs for each other's goods, with different views on foreign policy, military force, slavery, religion and virtually every aspect of daily life. The common enemy, Great Britain, still surrounded the young states, with an all-powerful navy at sea, and forts, troops and Indian allies in Canada and the Northwest, but the union was still dissolving. They didn't know where they were and certainly not where they were going.

The form of government that had survived for centuries in their homeland was the monarchy, as modified by a parliament increasing in its own authority over the same period of time. But power was subject to law. The Magna Charta of 1215, recognizing the privileges of the English nobility vis-à-vis the King; the Mayflower Compact of 1620, setting out the concept of "the people" of the Massachusetts Bay Colony creating their own local government; the Bill of Rights of 1688, establishing the ground rules for the reintroduction of the English monarchy after the traumatic days of Parliamentary Wars, Cromwell and the four Kings James and Charles; finally the colonies and later States themselves had adopted constitutions and charters assuring certain personal freedom for their "people."

All of this history and more, the great philosophers of law and government, Gratian, Aquinas, Bracton, Blackstone, Hobbes, Locke, Rousseau and especially Montesquieu, and the experience of struggle with making a country from scratch all walked into Constitution Hall with these men each day. Their speeches, as recorded in summary form by Madison, when we strip away what we find a bit of stiffness in language, is unmatched in the history of political science for matching great ideas with real life in action.

These were men of great perception, historians, military leaders, businessmen, philosophers, and scientists. George Washington, Benjamin Franklin, James Madison, Alexander Hamilton, Gouverneur Morris to name just the greatest lights.

The ultimate document was a product of genius and compromise, perhaps a compromise by geniuses. It provided for both representation by population (the House of Representatives) and by States (the Senate, to be stably maintained by the greatest wisemen each could provide). In all events, throughout it was a labyrinth of checks and balances, which today we praise for its genius, while some fear it has produced government gridlock. This scheme was for the protection of the people and the States from the unrestrained exercise of central control. And, in the long view, we must say it has worked exceedingly well.

However, the fear of power untrammeled persisted in the Convention delegates, in some State Legislatures and in sizeable portions of the populace. Thus, the idea of a Bill of Rights added to or designated into the new Constitution was discussed. The matter did not find form in the finished document, both because, I think, the exhausted delegates shuddered at the thought of both the debate necessary to identify and articulate what rights should be recognized, and rebuilding the document to contain them.

The delegates promised, however, that the first task of the new government should be to create a Bill of Rights as amendments to the Constitution. Even some who opposed it as a useless or a counter-productive task, such as Madison, later conceded it was appropriate and argued for it during the ratification process.

In the first Congress, Madison sponsored a Bill of Rights, based on the Virginia Declaration of Rights and Thomas Jefferson's Virginia Statute for Establishing Religious Freedom. Congress approved it on September 26, 1789, and the states ratified it, Virginia finally doing so on December 15, 1791.

Every day, when I make judgments about whom to charge with what crimes, about how to respond to the constant demands by individual citizens and groups to prosecute certain sorts of behavior, I have to balance the action -- say removing pornography from a Seven Eleven -- against the protections of the First Amendment. Both the Constitution and its Bill of Rights began as practical working documents, though devised by geniuses of a different century, faced with a different world they were living in and responding to. However, this great charter and map of the relations between a people and its government remains alive and kicking today.

In the last few months I have had a challenging and powerful experience: teaching and talking with lawyers, judges, law and political science professors, and activists from all around the world about our Constitution, Bill of Rights and how our government works from day to day. I have tried to explain to people from 40 or more countries on visits to our country, here to find out some answers on how we have survived, this polyethnic, polyglot group of descendants of poor immigrants, for so long. Teaching something always brings one face-to-face with how to compress theories, history and experience into meaningful sentences and paragraphs. Doing so to people who have never visited our country, whose ideas of us come for our movies, books and television shows, and the horde of Beautiful Americans touring, doing business or fighting in their countries, is especially difficult.

When I am asked what is the key to understanding who we are and how we govern ourselves, I suggest the visitors must start with our Constitution and its Bill of Rights, and then travel the streets and fields of our magnificent and contradictory country, reading it and rereading it along the way.
Just as Charles Pinkney said, to be successful a government must grow out of the habits and genius of its people. Tonight we will talk about the symbiotic relationship of our Bill of Rights and our people.

Host: John Smietanka

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Representative Guests:

Authors:
• Gillian Flynn, mystery author: “Dark Places”, “Sharp Objects” and “Gone Girl”
• Dr. Tomas Halik, philosopher, psychologist, priest and human rights activist, Prague, Czech Republic, author “Patience with God” and “Night of a Confessor”, and 2014 winner of the Templeton Award
• Lynne Olson, author of “Those Angry Days”, “Troublesome Young Men” and “Citizens of London”
• Patricia Polacco, author and illustrator of scores of children’s books, international lecturer and teacher
• Robert Hellenga, author: including “The Sixteen Pleasures” and “Fall of a Sparrow”
• Bonnie Jo Campbell, author, “American Salvage” finalist for the 2009 National Book Award
• Tom Butler, author, lecturer on environmental issues; “Wildlands Philanthropy: A Great American Tradition”
• Paula Nangle, Watervliet author: “The Leper Compound”
• Nicholas Delbanco, author, “Spring and Fall”, “The Count of Concord”, University of Michigan professor
• Kathryn Scanland, author and business consultant
• Alex Kotlowicz, author and journalist; “No Children Here”, “The Other Side of the River”
• David Wise, author, adventure novels
• Suzanne Snider, historian, author and professor at the New University, New York City
• David Dempsey, author, environmentalist and former State of Michigan public official
• Lucinda Hahn, editor, Lake Magazine
• Annalisa Cox, author “A Stronger Kinship”, and historian
• Jack Fuller, author, “Abbeville” and former Editor in Chief and President of the Chicago Tribune
• Stacey Sauter, author: “One False Move”, “Immaculate Deception”
• Jill Culby, author of 58 romance novels and member of Romance Writers’ Hall of Fame
• Tania Aebi, author “Maiden Voyage”, sailed around the world alone as a teen-ager
• Bob Wolf, “Voices from the Heartland”, chronicler of America
• Scott Sparling, “Wire to Wire”, Michigan author
• Anne Fortier, Danish/Canadian author, “Juliet,” “The Lost Sisterhood” and documentarian on the Russo-Finnish War
• Elizabeth Kerlikowske, poet and English professor
• Patricia Gibson, Watervliet author, “The Red Skirt”, memoir of an ex-nun
• Jonathan Eig, author, “Get Capone”
• Lorraine Hanover, author, “I am Alice”
• Blue Bailliet, author of mysteries for middle schoolers, Chicago
• Phil Brooks, author of “How the Forward Pass Saved Football”
• Anne Irgens Vandermolen, author of “She That Remains”
• John Schmidt, author of “The Mayor who Reformed Chicago” and “Day to Day in Chicago History”
• Mary Lesch, editor of “Chief O'Neill's Sketchy Recollections of an Eventful Life in Chicago”
• Renee Rosen, author of “What the Lady Wants” historical novel about Marshall Field of Chicago
• Anna Clark, literary activist in New Detroit and author/compiler of books on Michigan and Detroit

Athletics:
• Andrea Hutchins, architect and triathlete
• Greg Marx, former Football All-American defensive lineman, University of Notre Dame
• Muffett McGraw, Head Coach, University of Notre Dame women’s basketball team and 3 co-captains
• Jerry Welsh: 20 year coach of Ohio State University Hockey team
• Richard “Digger” Phelps: former head coach, Notre Dame men’s basketball, now ESPN, and author
• Jon Brinker, triathlete and coach of triathletes
• Vikki Armstrong, Modern Pentathlon competitor for the US and the UK and health consultant

Media Art:
• Richard Hunt, Sculptor
• Elizabeth Nuti, painter
• Randall Higden, landscape artist
• Amanda Martin-Katz, outdoor sculptor
• Anastasia Makarenko, painter and musician from the Ukraine
• Jill Underhill, sculptor

Performance art:
• Greta Pope, jazz and opera singer
• Christine Steyer, soprano, Chicago Lyric Opera
• Al Nuti, actor
• Bob Swan, actor, opera impresario
• Bonnie Koloc, folk singer
• The Other Three Tenors: operatic singers
• Josh McClain, jazz musician
• Corky Siegel, “chamber blues” composer, performer and singer
• Gail Isaacson and Dave Repetto, playwright and radio activists
• James Braly, one-man show comedian/commentator, “Life in a Marital Institution”
• Deborrah Wyndham, pianist, singer, composer

Academia:
• Professor Conrad Smidt, director of Political Science Department, Calvin College, Grand Rapids, MI
• Roger Frost, retired professor of Pharmacy, Berkhamsted, England, UK
• Dr. Frank Bonn, PhD in History and college professor
• Professor Deborah Haarsma, Professor of Astronomy, Calvin College, Grand Rapids, MI
• John Cox, English Professor, Hope College, Shakespearian scholar
• Deirdre Guthrie, anthropology professor and yoga devotee
• John Corkery, Dean, John Marshall Law School, Chicago

Law, politics and government:
• Abner Mikva, former White House Chief of Staff for President Clinton
• Jim Thompson, longest serving Governor of Illinois, Thompson Commission
• Robert Mueller, second longest Director of the Federal Bureau of Investigation
• Brett Witkowski, Berrien County Treasurer, St. Joseph
• John Fields, United Nations judge: War Crimes Court in Kosovo
• Charles Greenleaf, former Deputy Chief of Staff to Vice President George H. W. Bush
• United States Congressman Fred Upton, Chairman of the US House Commerce and Technology Committee
• Michigan Attorneys General :
• Mike Cox
• Bill Schuette
• Michigan Secretary of State Terry Land
• Chief United States District Judge Paul Maloney
• Berrien County Prosecuting Attorney Art Cotter
• Larry Frankle, attorney and political activist
• Carol Stockman, lifetime political activist
• Don Bleich, trial lawyer
• Al Mingo, Chief of Police, Benton Harbor, MI
• Berrien County Sheriff Paul Bailey
• Hon. Ronald J. Taylor, Judge and USAID legal advisor to Egypt
• Michigan State Trial court judges:
• Thomas Nelson
• Sterling Schrock
• Dennis Wiley
• Angela Pasula
• John Dewane
• Mabel Mayfield
• William Buhl
• Dennis Wiley
• Michigan State Senators Tanya Schuitmaker and Ron Jelinek
• Oakland County Sheriff Mike Bouchard, candidate for Governor of Michigan
• Chris Siebenmark, Michigan state Senate staffer and local elected official
• Sharon Cooper, US Department of Defense Executive Director, Defense Human Resources Activity
• Michael Dunne and Curt Benson, law professors and hosts of “The Lawyers” WOOD radio Grand Rapids
• Panel on Berrien County Criminal Justice: Judge Gary Bruce, Prosecutor Art Cotter and Defense Attorney Tat Parish
• Joseph Harris, Emergency Manager, City of Benton Harbor, MI
• Daniel LaVille: Chief Clerk, Bankruptcy Court, Grand Rapids, MI.
• Mary Hill: Chief Librarian, Lincoln Township Public Library, Stevensville, MI
• The Higgins Sisters, teen-aged political activists
• Kari Kietzer, civilian contractor, NATO military forces in Afghanistan, Anti-Corruption effort

Activism:
• Don Alsbro, founder, Lest We Forget (organization for study of World War II, Korea, Vietnam and Iraq conflicts)
• Carol Line, Executive Director, Fernwood Nature Center
• Michigan Supreme Court Justice Bridget McCormick, University of Michigan Innocence Clinic
• Maria Rossner, Berrien County director, Autism Awareness
• Jean Brokish, Nature Conservancy
• Linda Beushausen, Executive Director, Hospice at Home for Southwest Michigan
• Angie Lavanway, Head of Berrien chapter of American Red Cross
• Lisa Bartosik, Executive Director, Lori’s Place (Grieving Center)
• Jerry Sirk, national Emergency Response Coordinator, American Red Cross
• Michael Green, head of Habitat for Humanity, Benton Harbor, MI
• Michael Seng, Law professor and Fair Housing activist
• Susan Gilbert, Executive Director, Southwestern Michigan League of Women Voters
• Dr. Holly Shaffer, veterinarian and animal advocate
• Doug Tjapkes, founder and head of Humanity for Prisoners
• Peg Kohring: national land purchaser for The Nature Conservancy
• Theresa Green, Berrien County Public Health Department
• Hannah Darnton, career in Non-Governmental Organizations
• Jill McGaughen, campaigner for environmental causes, e.g. fighting the Asian Carp
• Tiffany Butzbaugh, organizer of volunteer effort to reopen the Benton Harbor High School Library
• Patricia Panozzo, Local Food Movement and Illinois farmer
• Madeleine Philbin, Midwest Director, Catholic Relief Services
• Beth Spitzley, Physical Therapist, Sparrow Hospital, Lansing, MI
• Dr. Judy Munson, Chicago and Prague, health coordinator for governments in mass catastrophes
• Mary Dunbar, Executive Director of The Pokagon Fund, foundation for municipal grants
• Shirley Myers, regional coordinator and advocate for Burning Man

Journalism:
• Carol Marin, Chicago TV anchorwoman and investigative journalist
• Ron Magers, Chicago TV anchorman and political commentator
• Breda O’Brien, columnist for the Irish Times, Dublin, radio personality and lecturer in Europe
• Henry Erb and Ken Kolker: Investigative reporters, WOOD TV, Grand Rapids
• Chuck Osborne, award-winning news photographer, Chicago Tribune
• Pavel Palecek: documentarian, author and political activist, Brno, Czech Republic
• Richard Cooper, Washington DC Bureau, Los Angeles Times and author
• Martin Dzuris, refugee from Czechoslovakia and radio talk show host
• Lester Munson, national legal investigator, ESPN
• Enid Goldstein, former California TV and radio personality
• Rick Erwin, Chicago video documentarian

Business:
• David Whitwam, retired CEO, Whirlpool Corporation
• Allen Turner, Pritzker Foundation and Chairman of the Board, Columbia College, Chicago, IL
• Wendy Dant-Chesser, Executive Director, Cornerstone Alliance, Benton Harbor, MI
• Kim Clark and David Fink, co-founders of The Acorn Theater, Three Oaks, MI
• Robin Allen, proprietor of Forever Books, St. Joseph, MI
• Paul Landek, president, Tabor Hill Winery and Restaurant
• Jennifer and Jon Vickers, head of Cinema Arts School, University of Indiana, Bloomington
• Carolyn Drier, Drier’s Meats, Three Oaks
• Meghan McCausland: Michigan Works!
• Bilicz, refugees from 1956 Hungarian revolt and American restauranteurs
• Terry Johnson, inventor and businessman
• Dion Globensky, Tim’s Restaurant, Union Pier, MI
• Vivian May, restauranteur, Union Pier, MI
• Tom Lowry, Lowry Books, Three Rivers, MI, 3rd largest used book store in Michigan

Miscellaneous personalities:
• Dorothy Stout, British Intelligence Service during WWII
• Bob Myers, MI Berrien County historian
• Chief Rainbow Eagle, Native American shaman

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.

Offense

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.

Corroboration

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).