San Diego, CA 92101-3830 USA
JOE DOLPHIN, Foreman
June 1, 1994
Board of Supervisors
Dear Board of Supervisors:
In December of 1993 the 1993/94 San Diego County Grand Jury received a number of requests to investigate the prosecution of the Dale Akiki case. One of these requests was from a member of the Board of Supervisors and subsequently caused the entire Board of Supervisors to unanimously vote to appropriate a supplemental budget for the Grand Jury to prepare a report on child molestation prosecutions within the criminal justice system.
After becoming organized and staffed in regard to this report in early February, the Grand Jury conducted a comprehensive investigation for a four-month period which included countless hours of testimony. The Jury researched a number of leads, reviewed all pertinent documents and attended many conferences on the subject.
The Grand Jury also did a considerable amount of investigation into other high profile multi-victim/multi-perpetrator child molestation cases throughout the country to find similarities regarding their successes and/or failures.
Early in its investigation the Jury learned that the number of cases reported of sexual abuse of children had increased dramatically since Federal legislation, known as the Mondale Act, which conditioned Federal funding on granting immunity for those reporting potential child abuse. The number of cases being reported has increased at a greater rate than the number of convictions for the activity. This is partially due to the inherent conflict presented by increased funding for increased activities and the ability for a malicious report to be filed without regard to personal liability.
Board of Supervisors
An inquiry was undertaken into how the District Attorney's Office was organized, how cases were assigned, how consistent standards of professional conduct for prosecutors were established and implemented, and other related management practices. The report deals with perceived deficiencies in the management of the District Attorney's Office as well as, specifically, the prosecution of child molestation cases. In the latter instance, the Grand Jury acknowledged independent recognition of concerns and implementation of corrective action by the District Attorney's Office in its internal review process.
The Grand Jury was able to determine that therapy frequently is not used to its fullest treatment benefit, but is an adjunct to develop evidence for the prosecution of child molestation cases. The many issues involving conflict of interest, hidden agendas and misguided treatment by therapists are addressed in this report as well as the dispelling of the myth that satanic ritual abuse is prevalent in child molestation cases in San Diego County.
The Grand Jury compared the San Diego Model with the Orange County Model and determined that there is a serious deficiency in documentation and approach locally, compared to the team effort by our neighbors in Orange County.
In closing, I believe that the Grand Jury's report answers those questions which have disturbed the public since the acquittal of Dale Akiki and the dismissal of charges in the Alicia W. case. Although the Grand Jury may not have addressed all of the failings of the system in this report because it is recommending that intra-familial molestation issues be carried over to the 1994/95 Grand Jury, the substantive part of the report will have a dramatic effect by eliminating financial and personal costs associated with prosecutions of this type.
1993/94 SAN DIEGO COUNTY GRAND JURY
JOE DOLPHIN, Foreman
JD/ra ANALYSIS OF CHILD MOLESTATION ISSUES
Report No. 7
The Grand Jury received a request to "... investigate the prosecution and all events leading up to the prosecution of Dale Akiki." The jury concluded that there were two elements that needed investigation:
After some preliminary investigation, the Grand Jury divided the child abuse element further into "intra-familial" and "stranger" molest. Intra-familial includes cases involving parents, grandparents, stepparents and live-in friends. Stranger molest sometimes involves multi- victim/multi-perpetrator (MV/MP) incidents. Intra-familial abuse is a very large and complex issue. Previous Grand Juries have studied this issue, and have reached conclusions from one extreme of "protect the child at any cost" to the other extreme of "preserve the family at any cost." The Grand Jury believes that this issue deserves a comprehensive extended period of study. Due to time constraints and the vastness of the subject of intra-familial child abuse, this Grand Jury elected to concentrate only on the area of "stranger molest."
In conducting this investigation, the Grand Jury interviewed and heard testimony from approximately fifty witnesses, including police officers, sheriff deputies, deputy district attorneys, defense attorneys, judges, psychologists, therapists, parents, victims and various nationally recognized experts. The Jury also read through voluminous materials 64 books, approximately 20,000 pages of transcripts, over 300 pieces of correspondence as well as numerous newspaper and magazine articles in addition to published and unpublished professional monographs. The Jury also viewed 10 videotapes.
The Grand Jury conducted an extensive review of the operations in the District Attorney's office. The Jury was favorably impressed with the record of successful prosecutions achieved by the office. Many convictions were obtained by confessions or plea bargains, thereby saving a substantial amount of court time and expense. In connection with its review, the Jury received and examined the report of the internal review ordered by the District Attorney after the Akiki case.
The Grand Jury's investigation of the prosecution procedures started with the role of the investigators who respond to the first report of molestation, and the relation to the social worker who participated in the first response. The Jury then went on to review the operation at Children's Hospital with regard to the initial evidentiary interview and physical examination.
The Grand Jury spent a considerable amount of time investigating the role of therapists in dealing with children, and a review of the beliefs in ritual abuse and satanic ritual abuse. Many mental health workers were interviewed and testified before the Grand Jury. These included Marriage, Family and Child Counselors (MFCC), Licensed Clinical Social Workers (LCSW), clinical psychologists and psychiatrists.
Finally, the Grand Jury looked at some methods of handling child molest cases in other jurisdictions, particularly the Child Abuse Services Team (CAST) system in Orange County.
A number of terms will be used throughout this report which have had different definitions. For the purposes of this report, we will use definitions as listed in the glossary and acronym list below.
ABUSE - Limited to sexual abuse. Fondling, inappropriate touching, penetration, etc.
CHILD ABUSE RISK MANAGEMENT - Determining procedure to ensure safety of a child.
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) -
The syndrome includes five categories, two of which are preconditions to the occurrence of sexual abuse. The remaining three categories are sequential contingencies which take on increasing variability and complexity. While it can be shown that each category reflects a compelling reality for the victim, each category represents also a contradiction to the most common assumptions of guilt. The five categories of the syndrome are:
The accommodation syndrome is proposed as a simple and logical model for use by clinicians to improve understanding and acceptance of the child's position in the complex and controversial dynamics of sexual victimization. Application of the syndrome tends to challenge entrenched myths and prejudice, providing credibility and advocacy for the child within the home, the courts, and throughout the treatment process.
"The term 'accommodation' in Dr. Summit's model refers to the phase of entrapment and accommodation that he found children experience during sexual abuse."
CHILD SEXUAL ABUSE SYNDROME (CSAS) - (Same as CSAAS)
COURT-APPOINTED THERAPIST - Marriage, Family, Child Counselor (MFCC), Licensed Clinical Social Worker (LCSW), Clinical Psychologist or Psychiatrist.
DESIGNATED EXAMINING FACILITY - A place which has facilities to conduct evidentiary interviews and medical evidentiary examinations.
- An interview of a child victim with the purpose and intent of gathering data as to the fact, or lack of facts, of child molestation and/or abuse.
MEDICAL EVIDENTIARY EXAMINATION
- A physical examination of a child victim by a designated medical specialist to educe indications of molestation and/or abuse.
POST-TRAUMATIC STRESS DISORDER (PTSD)
- The essential feature of this disorder is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience (i.e., outside the range of such common experiences as simple bereavement, chronic illness, business losses, and marital conflict). The stressor producing this syndrome would be markedly distressing to almost anyone, and is usually experienced with intense fear, terror, and helplessness.
The characteristic symptoms involve re-experiencing the traumatic event, avoidance of stimuli associated with the event or numbing of general responsiveness, and increased arousal. The diagnosis is not made if the disturbance lasts less than one month.
- Severe and bizarre physical and sexual torture, and psychological abuse, delivered in a repetitive, ritualistic manner. Ill-defined in current literature.
SATANIC RITUAL ABUSE
- The same as "ritual abuse" with the addition of satanic or occult significance.
STRANGER - A person who is not a member of and is not residing with the victim's family. The stranger may be someone totally unknown to the victim or may be someone with whom the victim is familiar, such as a teacher, minister, caretaker, etc.
APRI - American Prosecutors Research Institute
CAPF - Court-appointed publicly-funded
CAST - Child Abuse Services Team
CCP - Center for Child Protection
CSAAS - Child Sexual Abuse Accommodation Syndrome
CSAS - Child Sexual Abuse Syndrome
LCSW - Licensed Clinical Social Worker
MFCC - Marriage, Family, Child Counselor
MV/MP - Multiple-victim/multiple-perpetrator
OCJP - Office of Criminal Justice Planning
PTSD - Post-traumatic Stress Disorder
The District Attorney's Confidential Internal Report on Child Abuse Prosecutions is attached as
Exhibit A. FACTS AND FINDINGS
Early in the course of our investigation into the prosecution of child molestation cases within our County, we came across the term "The San Diego Model." After numerous interviews with persons who have referred to this model and requests for documentation, we have found that the term "The San Diego Model" is a "... catch-all phrase for the way we do business in San Diego." It is neither documented nor fixed. It is a system that accommodates whatever situation is occurring at the time and may never follow the same rules again. The primary players are the District Attorney's office and therapists. The District Attorney's office is responsible for issuing or dismissing cases of child sexual molestation and, on occasion, continuing the investigations of cases that are conditionally rejected.
Therapists are utilized by the court and the District Attorney's office to provide healing and treatment for young children who are victims of sexual molestation. In some cases these therapists have been used to encourage disclosures by children of events or perceived events relating to sexual molestation cases. The Grand Jury finds that "The San Diego Model" needs improvement when compared with the Orange County CAST model.
DISTRICT ATTORNEY'S OFFICE
INADEQUATE MANAGEMENT CONTROLS
The District Attorney's office is composed of about 260 attorneys designated as Deputy District Attorneys and a number of support personnel. The District Attorney is an elective officer of the County and "... is the public prosecutor [and] shall institute and conduct ... all prosecutions for public offenses."
Prudent management of an office of this size and diversity would indicate that certain documentation should be in place and used. The District Attorney's office has inadequate management controls. This is evidenced by:
During the course of this investigation, the District Attorney completed an internal review which indicated that certain areas of the office needed to be improved. As a result, he distributed an "Intra-Departmental Correspondence" to his Division Chiefs dated April 15, 1994 that specified certain "guidelines" for prosecuting child abuse cases. These guidelines and protocols are to be followed in all cases unless variances are approved by the District Attorney. The Grand Jury applauds this first step effort to implement new management controls.
The first indication of the lack of documented organization came when the Grand Jury requested an up-to-date organizational chart of the District Attorney's office. The Grand Jury was told that none existed and that the District Attorney's office used the internal telephone book. A subsequent query elicited a listing of deputy district attorneys by the unit to which they were assigned. No lines of authority or how the various units were tied together were shown. The Grand Jury contacted the Counties of San Francisco, Santa Clara, Kern, Los Angeles, Orange, Riverside and San Bernardino concerning the organization of their District Attorney's offices. All except one (San Francisco) had detailed organizational charts and they were provided to the Grand Jury. San Francisco's District Attorney has a similar listing to San Diego. The San Diego County District Attorney does provide an "organizational chart" for budgeting purposes, but this chart is inadequate for management objectives.
After failing to receive an organizational chart, the Grand Jury attempted to locate some document that would show which types of crimes were handled by the different groups or units within the District Attorney's office. The response indicated that the name of the unit was sufficient for the deputy district attorneys to know which units handled which cases.
There is no Policy Manual for the District Attorney's office which lays out the functioning of the office. This document could delineate such matters as administrative procedures, procedural material and general information. Such a manual could provide needed information for personnel of the District Attorney's office. During the contact with District Attorney's offices in the seven other counties surveyed, the Grand Jury also inquired about the existence of such a manual in their offices. In each case the other counties' District Attorneys' offices indicated they had such a manual.
The functioning of the Child Abuse Unit is predicated on the policies generated by the head of that unit. However, these policies are not in writing. This lack of documentation of important procedures allows the deputy district attorneys to interpret these policies in ways to fit their particular cases and purposes. The Grand Jury was informed that these procedures were in writing but they had not been approved. The District Attorney's office failed to produce these written procedures.
There were no documents of specific procedures for accomplishing specific tasks. The following examples are only a sampling of the possible and desirable procedures that should be developed:
1. Case Assignment - One area which needs specific direction is that of initial assignment of prosecutors to specific cases. The Grand Jury has heard of several means that are used by various supervisors. Most of them are satisfactory for use when documented, approved and used.
2. Review of Special Cases - It has been suggested that for difficult, complex cases, such as MV/MP child abuse cases, the trial deputy district attorney should bring the case before a panel of senior trial attorneys. This review would occur after the trial deputy district attorney has determined that sufficient evidence is available for successful prosecution and before the case goes to trial. The case would be subjected to the scrutiny of the panel who would question the trial deputy district attorney as to its viability before the court. The panel could assist the trial deputy district attorney by indicating areas that required additional effort or a different approach. Additionally, the panel would be required to indicate to the District Attorney whether the case should be taken to trial in its present form or whether further investigation and preparation is necessary. This review would be conducted in the vein of improving the possibility of successful prosecution or determination that dismissal is appropriate.
If instituted, these "Panel Reviews" should be covered by a specific procedure which includes such items as selection of the panel, the objective of the panel, the means of presentation, the provision for a brief report, including dissenting views, to upper management and provision for approval by upper management.
3. Early Introduction of District Attorney into Investigation - The assigned deputy district attorney should be involved in the investigation at an early stage. This will allow the prosecutor to ensure that actions by any person involved in the case will not endanger the successful prosecution of the case. It would have the effect of allowing the District Attorney's office to screen the victims early in the process to establish whether sufficient evidence exists for prosecution, whether the victims could appear as credible witnesses, and whether contamination of the witnesses by therapists, parents or other victims was occurring.
A written procedure should include a checklist to help the prosecutor in making such a determination. The lack of such a procedure can lead to steps being missed or used out of order and makes the successful completion of the case more difficult. The District Attorney already has recognized this requirement is needed. The Internal Report by the District Attorney's office, states, "In the Akiki case, neither law enforcement nor social services investigators immediately turned to the District Attorney for legal advice." The report further states, "A MV/MP case should begin with the pre-planned, immediate formation of an MV/MP task force."
4. Standards of Disclosure to Defense - There are varying standards utilized by individual deputy district attorneys to disclose evidence or documentation to the defense. The Jury inquired whether a written standard existed and was informed that the individual deputy district attorneys, as professionals, were well aware of the rules and obligations regarding the matter.
Although deputy district attorneys are obligated to refer to Uniform Crime Charging Standards, Ethics and Responsibilities for the California Prosecutor, and the Professionalism Sourcebook, all published by the California District Attorneys Association, these guidelines are not formally adopted by the District Attorney's office. The consequence is too great a latitude in interpretation by deputy district attorneys and no enforceable standards of control.
The Grand Jury notes that Brady v. Maryland indicates that it is the duty of the prosecution to disclose evidence favorable to the defense exists in constitutional due process, both in state and Federal jurisdictions. In California, such disclosure must be made voluntarily. It is held in People v. Wright, "We have imposed a stricter duty on prosecutors in this state, by requiring them to disclose material evidence favorable to the accused without request."
5. MV/MP Task Force Investigation - A MV/MP case is more complex and demanding than a case involving only one victim. In general, they occur much less frequently, but are usually much higher profile. Since they occur at such irregular intervals, it behooves the District Attorney to have a detailed procedure on the investigation and prosecution of such cases in place. Due to their diversity, it is generally accepted that much more in the way of assets must be brought together to do the proper and coordinated investigation. This indicates that a multi-discipline/multi-agency task force has the best chance of successfully bringing the case to fruition and, since the District Attorney is the ultimate user of the information, such a task force should be headed by the District Attorney's office. If it is agreed that the District Attorney is the logical head of the task force organization, it becomes apparent that the District Attorney should draft, with inputs from other agencies, the overall procedure for use in this case.
The draft revision of American Prosecutors Research Institute publication II (APRI-II) on Investigation and Prosecution of Child Abuse now states,"It is much easier to implement a preexisting plan than try to form one during a crisis."
6. Performance Evaluations - The question of evaluation of the individual deputy district attorneys was raised to establish how performance was measured. The District Attorney's office was queried about how performance evaluations were done and how documented. The Jury was informed that the standard County Employee Performance Appraisal form was used. This form is used to evaluate all types of employees in the County, not specifically deputy district attorneys.
The Jury contacted the County Human Resources Department to inquire about these forms. This department informed the Jury that the implementing directive for this form allowed departments to customize the form to allow specific areas for the type of job being evaluated. This customized form must be approved by the Human Resources Department and several departments have received approval for their customized forms. The District Attorney has not submitted a request for approval of such a customized form.
In both the Internal Report and the "Intra-Departmental Correspondence" dated April 15, 1994 from the District Attorney to "All Division Chiefs," recommendations and "guidelines" are provided, but it does not appear that the detailed policies or procedures for carrying them out are planned. In some cases, liaison with other organizations are required and agreement must be reached on the details. The District Attorney's office should be documenting and implementing the means by which they will carry out these actions.
The District Attorney seems isolated from management functions of the office. This amounts to turning over the running of the office to subordinates, resulting in small fiefdoms within the District Attorney's office. The Akiki case presented even a different aspect of the office. Acting on the recommendation of the Head of the
Child Abuse Unit, the District Attorney removed the case from the original deputy district attorney in the Child Abuse Unit and placed it with a deputy district attorney in another unit. The supervision of the prosecuting deputy district attorney remained with that new unit supervisor, who did not exert close supervision.
The District Attorney met regularly with the prosecuting deputy district attorney concerning the case but it is unclear if the District Attorney exercised close supervision of the prosecutor. The District Attorney did not provide adequate supervision for the prosecuting deputy district attorney to ensure that the preparation and execution of a trial plan was sound.
EVALUATION OF EVIDENCE
The question of whether the prosecuting deputy district attorney had produced enough evidence to initiate proceedings against Dale Akiki is one that concerned this Grand Jury. This was especially true since there was almost no physical evidence, and in most instances disclosure by the children came only after intense therapy.
The Grand Jury has learned that the original prosecutor in the case had concerns about the believability, credibility and reliability of the children's testimony. She lacked confidence in proceeding with the case because she believed that the children's testimony was neither accurate nor consistent.
The Jury looked to recognized authorities to provide information. Professor John E. B. Myers of McGeorge School of Law, University of the Pacific, has stated that:
"From the legal as well as the clinical perspective, the greatest confidence is warranted when the expert's opinion is based on a coalescence of four types of data:
The Grand Jury finds that in the Akiki case the prosecuting deputy district attorney had only fragmented parts of the four types of data and chose to rely heavily on the nonsexual behaviors and symptoms. Trial deputy district attorneys should be aware that when prosecution without the four types of data is attempted it is done at greater risk of failure.
The Grand Jury notes that the U. S. Supreme Court has stated, "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
The philosophy expressed applies equally to all public prosecutors.
The extent and consistency of disclosure by deputy district attorneys to the defense of material evidence, or information which might lead to material evidence, favorable to the accused has been considered by the Grand Jury. In the Akiki case, the prosecuting deputy district attorney failed to disclose in a timely manner the fact and result of a surveillance of the accused conducted prior to charging. Such disclosure ultimately was made under imposition of court order. Further, the fact of the investigation of alleged child sexual abuse by a known prior offender, involving a victim related to and occurring near the time of the alleged incidents in the Akiki case, was not disclosed to the defense. Moreover, the investigation of that reported occurrence was not pursued. These circumstances were learned by the defense through an anonymous tip.
Moreover, in an unrelated matter, the Grand Jury has taken notice of reversal by the Court of Appeal, Fourth Appellate District of a conviction because of failure of the District Attorney's office to reveal information bearing on the credibility and professional competence of a principal prosecution witness. And, in the civil aftermath of an ill-fated sexual abuse prosecution, notice is taken of allegations of failure to disclose and lack of truthfulness on the part of a deputy district attorney as reported in the opinion of the Court of Appeal.
Yet, the Grand Jury has found that prosecutors both in this and other jurisdictions, as well as jurists, were of the opinion that those items of potential evidence which were withheld or ignored by the District Attorney's office should have been disclosed promptly and voluntarily to the defense. As to the yet unproved allegations of suppression and lack of truthfulness, the Grand Jury can only express its grave concern.
Although the Grand Jury has observed some excellent lawyers in the District Attorney's office, certain members of that office have become obsessed with the idea of "winning cases." The fact that "It is their duty to see to it that those accused of crime are afforded a fair trial" has been forgotten or overlooked. Because the District Attorney's office is charged not only with pursuing and prosecuting criminals, but also with doing justice, the fine balance that must be struck is easily outweighed by overzealous prosecution. An atmosphere of conviction, and conviction only, can be expected to produce inadequate investigation, incomplete disclosure to the defense and sharp practices. The District Attorney must provide leadership to change any such attitudes in his office at the earliest possible time.
In a San Diego County stranger molest investigation, the agency responsible for the investigation is the law enforcement agency having jurisdiction where the crime was committed. It is in charge of the investigation until such time as the allegations are determined to be unsubstantiated or have been investigated and presented to the District Attorney for prosecution.
Law enforcement officers, during cadet training, receive four hours of training in the investigation of child abuse and molestation cases at either the San Diego Regional Training Academy, the Los Angeles Sheriff's Academy, the Los Angeles Police Academy or other approved criminal justice training centers. This training is augmented by attendance at periodic seminars and interdisciplinary meetings with other interested organizations to coordinate their mutual responsibilities and to keep informed on new investigative techniques. This training enables investigators to be more aware and sensitive to a child's development at various ages.
Initial evaluation is made by the field officer who has received basic required training (Police Academy) in the investigation of child abuse and molestation cases. This evaluation of the victim is normally completed as soon as possible after the original complaint is received. This lessens the chances of early contamination. These interviews are documented in written reports and sometimes by audiotape.
If there is a need for surveillance of the suspect, it is initiated in the early stages of the investigation, thus thwarting the suspect's early detection of the investigation.
Law enforcement officials may meet and work with a variety of professionals from different disciplines. It is the opinion of law enforcement personnel that they must not relinquish their responsibility of being in charge of the investigation until it is completed and presented to the District Attorney's office for review and/or prosecution.
Law enforcement is trained to ensure both due process and constitutional rights are afforded the suspect during the course of the investigation. If it is believed that a crime has occurred, an investigation must be conducted. This investigation should include a detailed audio- or videotaped account of the crime and other incidents in the child's own words.
Reports of suspected abuse/molestation are brought to the attention of law enforcement agencies by being reported (via telephone) to the agency by witnesses, victims, other interested parties or observed within the daily working assignments of law enforcement officers or other official agencies. Sometimes the victim personally contacts the law enforcement officer in the field and reports the crime.
If the suspect is identified and taken into custody, the law enforcement officer must present the case to the District Attorney within 72 hours, including the results of the evidentiary interview and examination of the victim. If the suspect is not taken into custody, usually within three days an appointment is made for the evidentiary interview and medical examination of the victim at the Center for Child Protection (CCP) at Children's Hospital. At that time an appointment is made for an interview of the victim by the District Attorney, at which time the videotapes and results of the physical examination are available. After this interview by the District Attorney, the case is either accepted, rejected or conditionally rejected with a request that more work be done on the case.
In the Akiki case it appears that the various available protocols
were not followed. For instance, the law enforcement agency initially involved (Sheriff's Department) was not allowed to continue an in-depth investigation to prepare the case for filing charges. Additional failure of the procedures occurred when interviewers of the children and other investigators (District Attorney's investigators) were removed or had their normal investigative duties curtailed by the deputy district attorney prosecuting the case.
Contamination is the act of introducing outside influences into a person's subjective experience so that either his memory of an event or his description of the event is altered.
Kenneth V. Lanning is the Supervisory Special Agent assigned to the Behavioral Science Unit of the FBI at their academy in Quantico, Virginia. In his list of possible sources of contamination he includes "overzealous intervenors." He points out how interested parties such as parents, other family members, doctors, therapists, social workers, law enforcement and prosecutors can create "intervenor contagion."
Lanning describes how contamination occurs:
"Victims have been subtly as well as overtly rewarded and bribed by usually well meaning intervenors for furnishing details. In addition, some of what appears to have happened may have originated as a result of intervenors making assumptions about or misinterpreting what the victims are saying. The intervenors then repeat, and possibly embellish, these assumptions and misinterpretations and eventually the victims are 'forced' to agree or come to accept this "official" version of what happened."
In the Akiki case it appears that contamination occurred at many levels. First, the parents had several meetings where the accusations against Dale Akiki were discussed. Although the parents were cautioned not to talk about these events with the children, the fact is that at least some of the parents did. One father even supplied an audiotape of his session with his child.
The therapists were also a source of contamination. Therapy is not only a possible source of contamination, it is by its very nature a form of contamination. Therapy is an active effort to provide the client a new framework to understand the events in their lives. Therapeutic change on the part of the client is based on suggestibility. In order for a person to benefit from therapy, some degree of suggestibility must exist within the client. Unless people were suggestible, therapy would not work. Contamination in therapy can occur through overt and covert methods.
Therapists can also contaminate each other, and this is then passed on to the client. When one therapist deals with more than one client connected with a particular case, it is possible that information "extracted" from one client interview can consciously or subconsciously be transferred to a second client. In addition, when several therapists dealing with different clients in the same case get together, the possibility of the transfer of misinformation or misinterpretations exists. The possibility becomes even greater when all the therapists have a common bias, such as accepting ritual abuse allegations as established fact.
The best example of contamination in the Akiki case was the fact that the therapists were not only trying to treat the children but they were also attempting to be criminal investigators. The prosecutor asked the therapists to provide more disclosures of abuse. One therapist reported that she encouraged parents to use the "empty chair" technique with their child at home so that the child could accuse Dale Akiki, and act out her anger toward him in effigy. The parents were urging the children to provide more and more allegations that could be used for trial. The pressures on the children were enormous.
According to Elizabeth Loftus, Ph.D., Professor of Psychology at the University of Washington and author of several books and articles on memory, "There is enormous variability in the age of earliest memory from two years to eight years and occasionally later." Young people go through a period of development when their vocabulary has not been fully formed and where they do not really understand how the world works, so they make up explanations for what they observe, which may not be very logical.
Psychological studies do not show a simple relation between age and suggestibility. A person's perception, memory and verbal report of an event can be influenced by numerous factors unrelated to the truth of the incident. Pre-event and post-event information, interviewer bias, repeated yes-no questioning and the wording of a question can influence the recall and reporting of an event. Research shows that young children are generally more suggestible
than older children, and that children can be made to distort information based on what they believe the interviewer wants to hear, and this can occur consciously or unconsciously.
The dilemma faced by the prosecution is how to extract believable testimony from very young children. To aid them in this effort the prosecution often turns to therapists.
WHAT IS A THERAPIST?
The term "therapist" represents a function, not a title. Persons of several backgrounds and training are considered capable of treating a child victim as a therapist. These include social workers holding the credentials of Marriage, Family, Child Counselor (MFCC) and Licensed Clinical Social Worker (LCSW), either of whom need to have a Master of Social Work degree. A therapist may also be a psychologist with a Ph.D., or Psy.D. or a psychiatrist (MD).
San Diego County therapist, Michael Yapko, in his book, states there are essential key points that therapists need to remember. Some of his findings include the statements that, "Therapists often hold erroneous views on the workings of memory, repression and hypnosis; most therapists surveyed admitted they do nothing to differentiate truth from fiction in their clients' narratives; Therapists and researchers have no reliable means to distinguish authentic from false memories and clients' need for acceptance is a powerful factor that leads them to conform with therapists' perceptions."
The author stressed that, "Therapy typically involves more art than science, and how it is practiced is largely a product of a therapist's subjective beliefs."
Families of child victims may privately hire a therapist of their own choosing; however if the therapist is to be paid through the Child/Victim Witness Fund they must select from a list of therapists who are approved by the Juvenile Court. In order to receive court approval, the applicant must complete an extensive and thorough application showing his/her educational training, existence of a State license, specialties and experience. They must also affirm that they have viewed a three-hour videotape and the accompanying syllabus of a training seminar for therapists. The Jury found that an inexperienced intern could be covered by this Court approval under the blanket of a licensed therapist simply by filling out a short two-page application. There is no screening of the amount of supervision the intern receives.
In fact, there is no evidence that the applications of the licensed therapists receive more than a cursory screening or that there is any periodic peer review of the therapist's performance. The only peer review protocol that the Grand Jury found was developed to assist the presiding judge of the Juvenile Court to communicate with the mental health community on issues relating to the writing of reports, the format and guidelines adopted for that purpose, and to educate them concerning the interaction between the work of the court and that of the therapists. There was no provision for judging the work of the therapist as a therapist unless a complaint was received, and then the matter was referred to the presiding judge for action that he/she might feel was appropriate.
Ken Lanning writes:
"At another national child sexual abuse conference, the author witnessed more than 100 attendees copying down the widely disseminated '29 Symptoms characterizing Satanic Ritual Abuse' in preschool-aged children. Is a 4-year old child's 'preoccupation with urine and feces' an indication of satanic ritual abuse or part of normal development? Do intervenors uncover ritualistic abuse because they have learned to identify it or because it has become a self-fulfilling prophecy?"
In the belief that satanic ritual child molestation was widespread in San Diego County, the San Diego County Commission on Children and Youth, an inter-agency investigative team, formed a MV/MP Ritual Abuse Task Force to develop a protocol to handle these cases. This task force was modeled after the Los Angeles Interagency Child Abuse Network working on ritual abuse, which was the result of national hysteria that satanic ritual abuse was causing an increase in child molestation. The Grand Jury has found no evidence of satanic ritual child molestation in San Diego County.
In addition, the Grand Jury examined a comprehensive study, presented at several scientific meetings but not yet published, entitled, "Allegations of Ritualistic Child Abuse" by Bette L. Bottoms, Phillip R. Shaver and Gail S. Goodman which was funded by the National Center on Child Abuse and Neglect. According to the abstract:
"A stratified random sample survey of clinical members of the American Psychological Association was conducted to determine the number and nature of cases involving alleged ritualistic and religion-related child abuse, whether reported directly by children or retrospectively by adults.
"Results indicated that although the vast majority of clinical psychologists believe their clients' claims, the purported evidence for the claims, especially in cases involving alleged adult survivors of ritual abuse, is questionable.
"Relatively few clinicians encountered cases of ritualistic or religion-related child abuse ... during the decade of the 1980s whether reported by children or adult survivors ... A very small proportion of clinicians, each claiming to have treated scores of cases, accounted for most of the reports of ritualistic child abuse."
Many members of the San Diego County Ritual Abuse Task Force were involved in the Akiki case, including the head of the Child Abuse Unit who originally assigned the case, the deputy district attorney who prosecuted the case and several of the therapists who were selected to work with some of the children. Selection of the therapists was directed by the prosecutor who provided the list of CAPF therapists from which parents chose. The list contained people who had compatible beliefs. In addition, these therapists were asked by the prosecutor to attend a ritual abuse seminar in Orange County in order to become more knowledgeable about the occult.
In a "Pastoral Prospective for the Faith Chapel Church Family" Senior Pastor Charles R. Gregg, in commenting about the Dale Akiki case included the statement: "There have, however, arisen allegations of ritual abuse. It is my personal opinion that this investigation has been conducted with a predisposition towards ritualistic abuse."
In the Akiki case, when suspicion of molestation first surfaced, the pastor of the church called in a therapist who was a consultant to the church to interview the children. After interviewing them, he turned in a report of suspected molestation, as required by law, to the authorities and referred the children to another therapist who saw each child one time. He later told the prosecuting deputy district attorney that he did not feel that Dale Akiki had been involved in any molest. Many of the children underwent a videotaped evidentiary interview at the CCP at Children's Hospital.
After that the children were placed in treatment with the various therapists mentioned above. The Child Victim-Witness Protocol, supposedly followed by the District Attorney's office, calls for therapists to assume that they may be called as witnesses in a trial and that they, therefore, should maintain "concise, clear and factual records." In the Akiki case, there was little or no documentation of any of these sessions which went on for an extended period some of them twice weekly for years. There were no videotapes or audiotapes, and notes were either illegible or non-existent.
In addition to trying to provide healing therapy, some therapists were also engaging in investigative techniques, trying to extract disclosures of molestation from the children. Therapists can get children to say just about anything. When children initially say that nothing happened to them, a misguided therapist labels them as being in denial. Then "therapy" is sometimes continued for months or sometimes years until the children disclosed answers the therapists want to hear.
In the case of Alicia W., which was studied by a previous Grand Jury, the child was kept from her parents and "treated" by a therapist who told her that she would not be allowed to return to her parents until she admitted that her father had raped her. The child originally disclosed that a stranger had entered her bedroom window, but no one believed her until conclusive physical evidence proved that her statements were true.
Records show that most of the therapists involved in the Akiki case attended the seminar where the training video for therapists was filmed. The Jury found that the training video was excellent, but concluded that there was a blatant disregard of its contents when it came to working with the children. MANIFESTATIONS OF CHILDREN'S BEHAVIOR
The original belief that a child has suffered some sort of abuse may be triggered by some behavior of the child such as nightmares, fear of water, etc. These symptoms could be a normal part of growing up, but there is a group in the field of psychology who believes that these symptoms are a sign of child sexual abuse.
These symptoms have been identified under the title of Child Sexual Abuse Syndrome (CSAS) or Child Sexual Abuse Accommodation Syndrome (CSAAS). In the list below are some of the child behaviors that the prosecution in the Akiki case used to try to prove that the children were sexually abused.
CSAS and CSAAS Systems
Undresses in front of others
Kisses non-family children
Interested in opposite sex
Looks at nude pictures
Uses sexual words
Rubs body against people
Talks about sexual acts
Talks about sexual acts
Asks to watch explicit TV
Masturbates with object
The following additional symptoms listed by the Ritual Abuse Task Force were utilized in the Akiki case:
Fear of being bathed
Fear for self and family
Fear of small places or closets
The prosecutor in the Akiki case added one more symptom
Referring to some of these behaviors, the prosecutor attributed them to Post- Traumatic Stress Disorder (PTSD) and stated that it was evident that the children suffered some form of sexual abuse. She relied on the testimony of an expert who had studied some of the children in the Chowchilla kidnapping case where the children were buried in a school bus.
In rebuttal, another expert pointed out that a PTSD diagnosis has not been sufficiently tested with regard to children. PTSD is a set of symptoms which first surfaced and was described as a consequence of the war in Vietnam. Characteristic symptoms are re-experiencing the traumatic event, avoidance of stimuli associated with the event, numbing of general responsiveness and increased arousal (sleep difficulties).
The symptoms described by the prosecutor were more closely aligned to CSAS and CSAAS symptoms, and the behavior of the children which was reported would more properly be ascribed to the Child Sexual Abuse Accommodation Syndrome.
In the Kelly Michaels case which was decided prior to the commencement of the Akiki trial, the New Jersey Superior Court - Appellate Division ruled that CSAS and CSAAS were controversial theories and could not be used to prove sexual abuse. The court followed a decision handed down a month before by the New Jersey Supreme Court, which adopted the conclusion that, "The proper use of child-abuse expert testimony is ... not as a diagnostic investigative device, as the syndrome does not detect sexual abuse." The Superior Court, in its decision stated, "It would appear that the prospect of designing checklists, inventories and rating scales to provide objective measures of abusive behavior, its antecedents, correlates and consequences, holds promise of yielding information that may be useful both in individual and epidemiological data gathering. Designing and validating such measures, however, depends on theory and research that is currently the focus of much study and controversy. Nowhere is that more evident than in the scientific and legal arguments about whether behaviors exist that are unique to sexually abused children and whether such behaviors fall into patterns and suggest a typical 'profile' or 'syndrome' for the child sexual abuse victim."
The Superior Court, quoting Suzanne M. Sgroi in the Handbook of Clinical Intervention In Child Sexual Abuse (1982), wrote, "Validation of child sexual abuse depends upon recognizing behavioral indicators, the capacity to perform investigative interviewing, the ability to do credibility assessment, recognizing physical indicators and the capacity to perform comprehensive medical examinations. Behavioral indicators of child sexual abuse may be helpful but are rarely conclusive."
The Court's opinion invites attention to other jurisdictions which also came to the conclusion that CSAS testimony is not admissible to show that a particular child was a victim of sexual abuse. They are:
State v. Dodson (Iowa Ct.App. 1989), 452 N.W.2d 610;
Hellstrom v. Commonwealth (Ky. Sup.Ct. 1992), 825 S.W.2d 612;
People v. Knupp (N.Y. App.Div. 1992), 579 N.Y.S.2d 801; and
Commonwealth v. Dunkle (Pa. Sup.Ct. 1992), 602 A.2d 830.
CHILD WITNESS VICTIMS
Sexual abuse occurs in all economic, social and religious groups. Without intervention this can be devastating to the families and can be passed on to future generations.
A child molester seldom fits into society's image. One in four girls and at least one in seven boys are sexually abused one or more
times before the age of eighteen. There is rarely definitive physical evidence or an adult witness to verify the child's report of molest. The apparent lack of children's credibility appears to be a function of:
(1) The ability of adults to communicate;
(2) The children's ability to remember their experiences accurately; and
(3) The children's ability to describe their experiences.
Insufficient development sensitivity by professionals, due to lack of training or adversarial posture, can frustrate children trying to answer questions they are not yet capable of understanding. Studies of language acquisition suggest that lengthy compound sentences with embedded clauses and other linguistic complexities may be beyond the comprehension and memory of many children under eight years of age.
When children try to answer complex yes-no questions, questioners should ask them to elaborate on their response before judging the credibility of the reply. Accuracy and credibility deteriorate as communication breaks down, not necessarily because children are fabricating their responses or reporting fantasies but because of adult insensitivity to norms of development. Children do not learn to tell clock time fully until seven years of age, and they will still have some trouble with calendar dates. Relating events to familiar routines, e.g., naptime, mealtimes, is often helpful with preschoolers. Preschoolers reason on the basis of what they see. Requests that involve other types of reasoning, such as hypothetical, may lead children to try to answer questions they are incapable of answering. Children may end up contradicting themselves, not because they are lying, but because they are stretching to try to explain something they do not understand.
While preschoolers have been shown to recognize comprehension difficulties and implement strategies for resolving them, they are able to do so only in naturalistic settings when tasks and stimuli are simple, familiar, and require nonverbal responses to physically present referents. (Gallager, 1981; Garvey, 1977; Revelle, Wellman, & Karabenick, 1985)
A recent study suggests that when children do not comprehend lengthy, complex questions about past events, they typically try to answer these questions anyway and are equally as likely to respond inaccurately as accurately to difficult questions.
Sometimes a child's response sounds more like fantasy than reality because of the vocabulary used by the children. (Saywitz, Geiselman, and Borstein, 1992)
In an early stage of development, children three to five years of age appear to engage in magical thinking, creating or accepting illogical explanations. (Piaget, 1954)
Studies have found that a small number of children (1%- 3%) do give fantasy responses when questioned about a real-life event. (Goodman & Aman, 1990; Rudy & Goodman, 1991)
Children may intentionally lie and misstate reality. They have limited knowledge of adult sexual activities from which to invent detailed plausible descriptions. (Goldman & Goldman, 1982; Gordon, Schroeder, & Abrams, 1990)
An accusatory climate or forceful, repeated interrogation based on adults' preconception could be highly damaging to young children's testimony. The use of leading specific questions must be considered carefully. One study suggested that unless specific questions about genital contact were asked, the vast majority of genital touch incidents went unreported, as children rarely volunteered emotionally laden, potentially embarrassing information about genital contact in response to open-ended questions such as,"What happened?" (Saywitz, et al, 1991) On the other hand, the specific questions about genital touch also led to a small percentage of children falsely affirming vaginal touch (3%) or anal touch (5%) that had not occurred during a prior medical examination.
A child's communicative competence can be affected by various aspects of emotional functioning. For example, under stress children frequently regress to more immature levels of behavior which may compromise their ability to testify. They may have difficulty using advanced grammatical construction that they had successfully used in familiar nonstressful environments; so they may have difficulty comprehending constructions of which they have previously demonstrated mastery in other contexts.
Children of different temperaments react to the communicative demands of the courtroom in very different ways. A shy, insecure, withdrawn five-year-old may proceed with minimal difficulty. These differences have little to do with the truthfulness of their testimony.
Children differ widely in their reactions to abuse, victimization, parental discord, and violence, regardless of age. Where one child might become depressed, another might become unbearably anxious, another angry, aggressive or self-destructive.
Special court procedures, such as support persons, closing the courtroom to spectators, or closed-circuit television as an alternative to face-to-face confrontation with the defendant have been implemented on occasion. Additional modifications offered to children in some states include:
Information about children's emotional and communicative functioning is often critical to evaluating their need for special court procedures. Again, the availability of special court procedures will, in turn, affect their credibility. Children's credibility is not only a function of their own strengths and weaknesses, but also the ability of adults to create an optimal environment for them to tell what they know.
ORANGE COUNTY MODEL vs. SAN DIEGO MODEL
Members of the Grand Jury attended the San Diego Conference on Responding to Child Maltreatment conducted at the Town & Country Hotel on January 24-28, 1994. This meeting was held in collaboration with the American Professional Society on the Abuse of Children and the California State Department of Social Services. This initial exposure to procedures, concerning the collection of evidence in child abuse cases, provided an excellent threshold for the measurement of systems and protocols dealing with child abuse.
The Grand Jury looked for "The San Diego Model" of the type called for in the conference in the San Diego area. In general, the existing use of the Children's Hospital and various therapists was the closest that could be located. The Grand Jury sent some of its members to Orange County to visit the Orangewood Children's Home and its collocated Child Abuse Services Team (CAST). They were briefed and observed operations of both organizations.
CAST has interviewed and examined over 2,500 children in a child-friendly site where the investigations are coordinated by a multidisciplinary team. The team members are a deputy district attorney, Senior Social Workers, Child Interview Specialists, Nurse Practitioner, Child Advocate Coordinators and Crisis Intervention Therapists.
Once police and/or social workers receive a sexual abuse allegation, the child is brought to CAST where he/she is supported throughout the investigation, interviews and medical examinations by an on-site child advocate who provides structured play and emotional support. The professionals (including the deputy district attorney, therapist, detective, nurse practitioner and other involved professionals) observe the interview through a one-way mirror. The interview is conducted by a Child Interview Specialist who incorporates both protective custody and criminal elements in the interview and is videotaped for later use and study. The professionals then determine protective custody needs, criminal prosecution potential, court advocate for the child, and crisis intervention therapy with referral to the community for long- term therapy.
This process enables CAST to substantially reduce the number of interviews a child experiences. The reduced number of interviews is significant in reducing the trauma for the child. The child does not have to tell about his or her victimization over and over, nor does he or she have to tell about the abuse in hospital corridors, police interrogation areas, on street corners or school principals' offices.
In addition to the reduced trauma for the children, the coordinated services have enabled social services, police, District Attorney, medical personnel, and therapists to collaborate on all investigations conducted at CAST. Each professional has indicated that investigations are completed in a more timely, thorough and consistent manner.
The organization was originally funded by a combination of private donations and grants from the Office of Criminal Justice Planning (OCJP). It is now under the auspices of the Orange County Board of Supervisors with grants from OCJP when available.
Both CAST and Orangewood Children's Home have provided significant information to the development of the Polinsky Children's Center in San Diego which is due to open in the Fall of 1994.
"The San Diego Model" is a "catchall" phrase and is undocumented. It should be noted, however, that a contract exists between the CCP at Children's Hospital and all county law enforcement agencies with the exception of the Escondido Police Department which contracts with Palomar Hospital for evidentiary examinations.
The end users of these evidentiary assessments express satisfaction with the quality of services. As a matter of record, Children's Hospital handles over 1,100 cases a year involving evidentiary examinations for suspected child abuse. Their 16 years of experience is recognized as an asset to San Diego.
With the advent of the Polinsky Children's Center, it is important that an agreement be reached with Children's Hospital to help provide a complete evidentiary team approach for these examinations under County auspices no matter where they are conducted. This matter has been addressed in a paper entitled, "Guidelines for the Medical Evidentiary Assessment of Children at the Polinsky Center" from the chair of the San Diego County Victim-Witness Task Force with information provided by the CCP.
THE KIDS IN COURT PROGRAM
The Kids in Court program arose out of the need to make children less fearful in court. It is a cooperative effort between the Children's Hospital CCP and the District Attorney's Child Abuse Unit and is funded by the State through a grant from the OCJP.
Currently, the Kids in Court sessions are held in special rooms in the Superior Court and in the Juvenile Court. The staff's assistants are college students interested in social work, law and allied fields. They must undergo at least 40 hours of training before they can speak with children and help in the Kids in Court sessions. Nearly all the sessions are held at night so that parents and guardians can accompany their children.
The Kids in Court program consists of 90-minute meetings once a week for three weeks. To allay the children's fears, different types of art materials, stuffed animals, TV programs, playing age-relevant games and role playing are all utilized. The most effective factor is role-playing in which children take turns playing a judge, a member of the jury, an attorney, a court reporter, a bailiff, and so on. At some time in this program, they go into an actual courtroom and are introduced to and interact with the various people whose roles they had been playing. Judges allow children to wear their robes in order to make themselves less threatening to the children.
The children are mainly referred from the District Attorney's Child Abuse Unit. Referrals may also come from therapists and from the CCP.
Both children and parents are oriented in groups, not individually. The children go to one room for their sessions; the parents go to another. They attend sessions in small groups and there are usually enough helpers to provide individual attention to each child. Children must listen to what is being said and must participate in the various activities. Because both children and parents undergo group orientation sessions in the Kids in Court program, there is much controversy over the possibility of "contaminated evidence" if the children are allowed to talk to each other. The District Attorney's office claims that there are some benefits in children talking to each other. The following information was contained in the "Kids in Court" Manual provided by the District Attorney's office to the Grand Jury:
"The beneficiaries of the Kids in Court Program are primarily the children who have been victimized by sexual abuse and who must testify in court regarding the specifics of their case. The program gives them increased confidence, with a greater sense of personal power and control. Through participation in the program they also come to realize that they are not alone -- that there are other children in similar situations such as theirs. At times, parents may state that their children have not talked about the specifics of the case with them. What happens, is that during the program the kids are overheard to be discussing some aspects of their abuse experience with other children. It is assumed that the children feel more comfortable to do so within their peer group."
The Public Defender's office claims that the entire Kids in Court program is shrouded in secrecy and that no notes, tapes or videos are available to them. The District Attorney's office claims that records are kept, but they are statistical, not anecdotal. They never tape sessions because it is expensive to do so without disturbing the children.
The District Attorney's office stated that the program should remain in their office because practically all the children come from the Child Abuse Unit. Moreover, they said that it is the most important means of preparing children for court. Thus, it is an integral part of the District Attorney's prosecutorial duties. The Grand Jury had been led to believe that "Kids in Court" was a neutral activity designed strictly to allay the children's fears.
Diverse opinions were expressed about wanting a level playing field. Because of the secrecy, there is still the lingering perception that "contamination" takes place. As an example, the Grand Jury found the following observation from the notebook of a therapist treating a three and-a-half year old alleged victim of the Akiki case:
"She often described being picked with a few other children to perform sexual acts and said she thought it was because she was the 'nastiest'. She continued to believe this about herself in a self-deprecating way until she was seven years old and attended a 'Kids in Court' program and heard other children talk about themselves and what acts they had participated in with (name withheld) and (name withheld). She immediately told me at her next session that she used to think she was the 'nastiest' until she heard that other kids didn't like themselves either."
THE MONDALE ACT
The Child Abuse Prevention and Treatment Act, sometimes known as the Mondale Act, after one of its sponsors, was implemented in 1974 to fight a genuine problem. Up until this time child abuse was largely ignored and denied. Congress intent was to rectify this deplorable situation by providing incentives to the states for setting up programs for child abuse research, identification, prosecution and treatment.
Federal funding was made available to match state spending with the intent of serving as the incentive for states to create such programs. The law, however, has had results that its authors could not have intended. "In 1972, 610,000 child abuse cases were reported nationally, and by 1985 the number exceeded 1.7 million."
Last year, 2.9 million reports of child abuse were made in the United States; almost 60 percent of these reports were judged unsubstantiated, 21 percent were considered neglect cases, often due to poverty and about 6 percent were substantiated cases of sexual abuse.
In San Diego County the Hot Line established by the Department of Social Services received 86,000 calls in 1993. Social Workers and law enforcement officials investigated 54,000 reports, the largest number concerning neglect, then physical abuse and last, sexual abuse. There are approximately 520,952 children in the County 14 years old and younger.
Of the total reports investigated by the District Attorney's office, the latest complete figures from 1992 given to the Jury indicate that 276 defendants were actually charged and of those approximately 10% went to trial and the remainder were plea bargained. All too often, however, unsubstantiated charges arise from vicious child custody disputes. Other accusations arise from venues such as daycare centers, church centers, etc.
The cost for these investigations is staggering. A report released in 1993 pointed out that San Diego spent nearly $11 million in 1991-92 to pay for attorneys in Juvenile Court proceedings, a threefold increase from 1987-88, even though the number of court cases increased only 15 percent during that period. It compared San Diego's cost to $1.2 million spent in Minneapolis, $2 million in Dallas and Phoenix and $2.4 million in Philadelphia. According to the accounting department in Juvenile Court, these costs will exceed $15 million for fiscal year 1993-94.
Members of the San Diego County Grand Jury recently learned of fourth-graders using false allegations of sexual abuse against their substitute teacher. The teacher told police his fourth- grade class on Chicago's South Side became unruly during his May 9, 1994 assignment. When the substitute threatened to report their misbehavior, a nine year old girl offered to pay 10 of her classmates one dollar each if they falsely claimed that the substitute fondled them.
Fortunately the substitute was never charged but he also has yet to receive another teaching assignment. Police cleared him after some of the 10 children, nine girls and one boy, made inconsistent statements. A spokesperson for the Chicago Teachers Union said, "What's so scary - and so sad - is that you've got nine year-olds sophisticated enough to know they can get a teacher by saying he fondled them."
"We're in a society where you're guilty until proven innocent. Political correctness ... overrode my rights," said the teacher. A Chicago schools spokeswoman said officials will review the police report before deciding whether to give him more substitute assignments.
Since 1974, the Mondale Act has been expanded several times, progressively increasing the federal funds allocated to the states. Certain provisions of the original law and its successors worked to encourage people to bring child abuse charges that were frivolous, and sometimes malicious fabrications.
To qualify for federal funds states must pass legislation which provides immunity from prosecution for anyone reporting child abuse.
This immunity has its benefits and its problems; many people with legitimate cases gain the confidence to file a charge but the same immunity protects people who make false or malicious charges.
To receive federal funds, states also must pass laws requiring specific people, such as teachers, health-care professionals and law enforcement officials, to report suspected child abuse, backed up by penalties for failure to report. In effect, this provision has made it a criminal offense for such people not to report suspected abuse. The result has been over-reporting of even the most absurd and impossible accusations. For example, the Grand Jury was informed about a situation involving a North County high school teacher. A 14 year-old special education student, who was pleased to learn that she would not be receiving a failing mark in her woodshop class, hugged her teacher in the presence of several other students. Later she told her family about the incident. By the next day her account included the accusation that she had been touched on her breasts.
She reported the charge to the school administration, who reported it as a charge of fondling. Although there were several other students present when the fondling supposedly happened and, although this teacher had an unblemished record in all respects, he was removed from the classroom and put on unpaid leave while the charges were being investigated.
These charges were brought to the attention of local newspapers and for months there was publicity about the case. The case went to trial. Fortunately, the jury found the teacher innocent of any wrong doing and expressed astonishment that the case was ever brought to trial.
However, this man's reputation was impugned. His family life was disrupted for months; his teaching career was interrupted and, even when he was allowed to return to school, he was no longer assigned to the woodshop classes which he preferred. Eventually he left teaching for another career, expressing bitterness that the school district assumed he was guilty until he was legally absolved. Some adults falsely accused of molesting children have said they would rather have been accused of murder.
Although the reporting form for suspected child abuse indicates the reporting party needs to check either "occurred" or "observed," accounts relayed to the child care custodian or health practitioner by someone else are also reported. Such hearsay is enough impetus for a report to be filed, so pervasive is the fear of losing one's job or facing criminal charges for not reporting.
Evaluators who conclude there has been abuse, set in motion events that bring their offices both state and federal funds. If they conclude there is no abuse, their facilities will receive no funding for further evaluation of treatment.
Federal funding has created a "child abuse establishment." Mental health facilities, child protection services and investigatory agencies all depend on each other. It behooves them to work together because the greater the number of referrals, the greater the justification for the requisite funding.
This fuels a certain amount of sex-abuse hysteria in which an accused individual's constitutional due-process protections are commonly ignored. In other areas immunity from prosecution is generally available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors. Immunity under the Child Abuse Prevention and Treatment Act is incompatible with the basic philosophy of our legal system.
Mandated reporting of any suspicion of child abuse has resulted in the reporting of frivolous and bizarre accusations by children as young as two and three years old, and severely disturbed women against their elderly fathers. Highly skilled examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who may be predisposed to a prejudicial view toward the guilt of the suspect.
The Grand Jury realizes that child sexual abuse is a deplorable problem, but there must be a balanced approach to the situation. The process that allows anyone to make malicious or vengeful accusations needs to be modified and some degree of accountability provided. The necessary challenge is to strike a balance between the need to protect the children and the need to correct the growing tendency to use the Child Abuse Prevention and Treatment Act as a powerful weapon in the hands of those who misuse it for vengeful or malicious purposes, or to make public accusations.
The 1993/94 Grand Jury concludes that:
19. The Superior Court should consider:
a. Sponsoring and administering the "Kids in Court"
b. Ensuring that children from the same case do not normally attend the "Kids in Court" program together; and
c. Keeping the number of sessions of "Kids in Court" for
20. The Juvenile Court should consider:
a. Disallowing evaluators who are working on the same case from conferring with each other, or with more than one alleged victim, until an independent written report has been submitted;
b. Disqualifying CAPF therapists from taking more than one victim as a client/patient in multi-victim/multi-perpetrator (MV/MP) cases.
c. Not using therapists who are based in the same office
d. Requiring CAPF therapists to:
(1) Not share information with other therapists about details of sexual assault disclosed during therapy;
(2) Keep complete and accurate records of treatment
(3) Present a time-related written treatment plan to
e. Updating the CAPF therapists' list on a quarterly basis, and retain credentials on file for eligibility to require licensing.
f. Appointing an independent peer review committee composed of psychiatrists to:
(1) Review the appointment of all CAPF therapists;
(2) Review and approve time-related written treatment plans;
(3) Review all therapy by CAPF therapists exceeding three months or 12 sessions; and
(4) Monitor all CAPF therapists to guard against possible liability suits due to their culpability
in administering care.
g. Disallowing CAPF therapists from receiving referrals, if under investigation by a licensing agency, until they have been cleared by the investigating agency.
h. Supplying the parents with the list of CAPF therapists.
i. Codifying the list of CAPF therapists to indicate their specialties. RECOM MENDATIONS
The 1993/94 Grand Jury recommends that the:
#94/39: Develop written documentation defining office organization, covering organizational charts, and deputy district attorney's duties.
#94/40: Develop written documentation consisting of a policy manual, and the policies for use in the Child Abuse Unit.
#94/41: Develop written documentation in the form of detailed procedures for assignment of cases, review of special cases, early introduction of the District Attorney into investigations and standards of disclosure to defense.
#94/42: Develop and coordinate a detailed procedure for investigation and prosecution of multiple-victim/multiple-perpetrator (MV/MP) cases, including the use of multiple agency/multiple disciplinary task force.
#94/43: Create and document "The San Diego Model" for systemwide handling and prosecution of child molestation cases and submit it to the Board of Supervisors for approval and implementation.
#94/44: Ensure that the criminal investigation remains under the supervision and control of the law enforcement community and is not subordinate to the actions of therapists/social workers.
#94/45: Require investigators and detectives to take and retain notes not only of their interviews of victims but of all communications with witnesses.
#94/46: Impanel a group of senior deputy district attorneys (from units other than the one which is prosecuting the case) to review all difficult, complex cases, especially molestation cases.
#94/47: Discontinue the use of the Interagency Investigative Team Protocol developed by the MV/MP Ritualistic Abuse Task Force in December 1990.
#94/48: Refrain from directing parents to a particular therapist.
#94/49: Design a customized Employee Performance Evaluation form for deputy district attorneys.
#94/50: Refrain from the use of the theoretical concept of satanic ritual child molestation as the basis of criminal prosecutions.
BOARD OF SUPERVISORS:
#94/51: Reappropriate the unspent funds budgeted for the supplemental budget of the 1993/94 Grand Jury to study child molestation to the budget of the 1994/95 Grand Jury to complete the study of intra-familial child sexual abuse.
#94/52: Consider adapting the Orange County Child Abuse Service Team (CAST) Model.
#94/53: Require members of the multiple disciplinary evidentiary interview task force, consisting of an interviewer, a licensed social worker, and members of the District Attorney's staff, to have continuing education courses to remain up-to-date with current techniques.
#94/54: Require the reduction to a minimum the number of videotaped one-hour interview sessions with child victims to make a determination of sexual abuse/molestation. These sessions should occur within a week after the receipt of allegations.
#94/55: Investigate the possibility of a new position of evidentiary interviewer whose background includes skill in investigation and training in working with child victims.
THE 1994/95 GRAND JURY:
#94/56: Undertake an investigation of procedures for responding to intra-familial child molestation by the justice system and the social services system.