Confronting Prosecution Strategies in Child Sex Abuse Cases

For decades, the prosecution has utilized a coordinated strategy to investigate and prosecute child sex abuse cases.  Expert testimony to explain a child’s inconsistent behavior and statements is central to the prosecution strategy.  Utilizing this strategy, prosecutors routinely solicited improper opinion evidence from the purported expert.  Our Supreme Court disallowed this practice in a recent series of cases.  State v. Chavis, 412 S.C. 101, 771 S.E.2d 336 (2015); State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013); State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011); and State v. Douglas, 380 S.C. 499, 671 S.E.2d 606 (2009).

Following the judicial rebukes in these cases, prosecutors changed strategies with the hopes of getting the same evidence in front of jurors.  With our Supreme Court holding that “forensic interviewing” is not an expertise, some prosecutors attempt to qualify the same witness as an expert by using different terminology, such as “child abuse assessment.”  This practice should be challenged.

The crown jewel of the prosecution strategy is expert testimony about delayed reporting to explain a child’s inconsistent statements and behavior.  A recent case form our Court of Appeals, State v. Brown, 411 S.C. 332, 768 S.E.2d 246 (Ct. App. 2015), reveals the evolving strategy.  The prosecution expert,

[Shauna] Galloway–Williams testified she did not review any incident reports or statements associated with this case, never met with or interviewed the minor victims prior to trial, and was not present for their testimony during trial. In fact, her only knowledge about the case came from discussions with the Solicitor’s Office. According to Galloway–Williams, research indicates that between seventy and eighty percent of abused children delay disclosing the abuse into adulthood. Further, she stated children delay disclosing abuse for a number of reasons, including: (1) fear of consequences to themselves, the perpetrator, or someone the child loves; (2) the child’s age; (3) the child’s relationship to the perpetrator; (4) a lack of vocabulary or language to describe what has happened to them; (5) threats by the perpetrator; (6) grooming by the perpetrator; and (7) the perpetrator’s normalization of the abusive conduct. Galloway–Williams further explained that most disclosures happen accidentally, and children generally reveal more details over time throughout the disclosure process. When children suffer chronic abuse, she stated it is more difficult for them to sort out the timing of individual incidents and the order in which they occurred. Galloway–Williams also explained that having a close and trusting relationship with the perpetrator can have a very strong impact on whether a child feels like he or she can disclose the abuse. Finally, she testified that child abuse victims will sometimes tolerate sexual abuse to maintain a relationship, particularly if the perpetrator is someone they love and trust.

Testimony that eighty percent of children delay reporting is contrary to the longstanding rulings in State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989) (psychiatrist’s testimony that alleged victim’s “symptoms are genuine” improperly vouched for alleged victim’s credibility”) and  State v. Dempsey, 340 S.C. 565, 532 S.E.2d 306 (Ct. App. 2000) (testimony from a child abuse counselor that child tells the truth 95% to 99% percent of time abuse is alleged improperly vouches for child’s credibility).  State v. Brown very likely will  be appealed to the South Carolina Supreme Court.  Defense lawyers, therefore, should continue to object to this type testimony as an effort to get around the decisions in cases like Chavis, Kromah, and Jennings.

Through cross-examination, defense counsel can point out that an expert witness presented in this manner does not know anything about the facts and issues involved in the case and, therefore, is of little assistance to the jurors.

Please click on this link to read our Court of Appeals’ opinion in State v. Brown.

Note:  This Blog Post is released to coincide with a presentation by Charles Grose and Chelsea McNeill at the 2015 Blues, BBQ, and Bar CLE on Friday, July 10, 2015.  The prevention, “Defending Child Sex Abuse Cases,” discussed jury selection, law enforcement interviews of the children, delayed reporting of child sexual abuse, and cross-examining child witnesses.  The seminar, hosted by the South Carolina Association of Criminal Defense Lawyers, convened at the Arts and Visitors Center in Greenwood.  The seminar was the same weekend as the annual Festival of Discovery.