Oedipus Rex: Drama or Docudrama?
This week's trial is a nightmare, and I've had trouble sleeping for days.
A couple of years ago, two parents confronted their teenage daughter with the contents of text messages on her cell phone. A peer was writing to the girl in tones too salacious to be repeated even here. He wanted her, in the most carnal of ways.
The fifteen year old girl was outraged. How could the parents so violate her privacy, she demanded, tearfully.
"We just want you to be safe," the mother replied.
"If you want me to be safe, then you should know what Uncle X did to me," the teenager responded. Her mother and father sat dumbfounded as she relayed an account of touching her "privates." In a flash, the salacious messages were forgotten. Law enforcement was contacted, an investigation begun, and my client, Uncle X, was charged with serious felonies. Since that initial claim, the state calls it a "disclosure," the child has now come forward with a new claim. My clients is now also alleged to have engaged in cunnilingus. This late disclosure the state described as consistent with traumatic "incremental disclosure."
There are no other witnesses, and no physical corroboration to any of the teenager's claims. Even so, the state has some two dozen people on its witness list. My client denies any wrongdoing.
How to defend such a case? Attacking a child is never wise. The most difficult thing a criminal defense lawyers ever does is to cross examine children. The worst moment in my professional career was cross examining a nine year old about what her father's most intimate part looked like. The jury acquitted of that count, but I felt so bad for the child I wanted to adopt her and protect her from more nightmares.
In child sex cases, lawmakers have virtually abandoned any concern with statutes of limitations. The theory goes that the trauma of child sexual abuse is so severe that the events are often not disclosed until later in life. To punish and deter these crimes, we create special rules for these special cases. You can be accused of a crime that allegedly took place decades ago. It seems wrong to me to me create special rules that depend almost entirely on the reliability of childhood memory.
Lawmakers rush to pass new laws protecting victims of sexual assault. But do these same lawmakers ever really pause to consider the harm done to those wrongfully accused?
The alleged victim in my case this week will testify about events that she claims occured ten years ago, when she was seven. Just how capable is a seven year old of recalling fact from fancy? And how much of what we call memory even in adults is really a creation of fancy?
I am reminded of the sensation Freud caused a century ago when he published essays of infantile sexuality. Neuroses, he claimed, were almost all a product of inappropriate sexual contact. It seemed child abuse was rampant in the Nineteenth Century. But as his thinking evolved, Freed realized that many of the reports of sexual contact were mere fantasy. Paradoxically, some were mere wishes that were sublimated and transformed into waking thoughts that looked like memories. Psychoanalysts are well aware of the power of unconscious that the force of hidden drives. How many wicked uncles are really just loving men whom a child wishes were his real parents? How often are memories of touches really fantasies too dangerous to own?
We will never know, unfortunately. Indeed, we cannot know in cases brought long after the fact.
Instead of challenging these memories, an entire industry has been created. So-called experts if "forensic child abuse interviewing" take the field to describe how best to create safe environemnts in which children can "disclose" ancient trauma. In no other type of criminal case is the requirement for corroborating physical evidence so easily forgotten. A child abused is a gem to be burnished by patient listening. Enourage the child to disclose what happened, the theory goes. But what if this merely results in a better articulated and supported fantasy? Are we so tone deaf that we read Oedipus Rex as docudrama?
In these week's case, the state has experts on delayed disclosure, incremental disclosure and how sexual predators groom young children (note to all: treat all children as miserable little savages capable of anything or face the consequences; the love, hug and lap you offer today is tomorrow's alleged snare). Photographs will be offered to show that the home in which the alleged fondling took place actually exists, as though this were in doubt. Days will be spent explaining how all this could really be true.
But we will never really know if any of it is true, or whether the expert's opinions bear real weight. The reason for this is we have no evidence that all these theories can be verified. When a child complains a decade after the event there is no way to confirm what is said. And so the nightmare of this week's case. My client faces decades behind bars if the jury believes his accuser.
Why would a child lie about something like this? That's the state's best evidence. Freud know first-hand: Children often wish for things they cannot have. Sometimes it is to be rescued from a home in which the parents are at war. Sometimes they wish an uncle or aunt would save them. But they cannot admit this wish; it is too terrible. So the uncle becomes a demon, and, in time is cloaked in accusations that can destroy.
The state's experts will deny this, of course. Because admitting it will then lead to the question they cannot answer: How can a jury tell the difference between an accusation based on fact and one based on fancy?