Five Things To Do When You Are Falsely Accused Of Sexual Abuse
It’s no secret that sexual assault is terrible – one of the worst crimes that anyone can ever commit. Unfortunately, it’s also one of the worst crimes to ever be falsely accused of committing. And being false accused of these offenses can be so easy. Frequently it just takes one person’s word, and then you are charged in a she said/he said situation. What do you do? How do you show that you did not do this? How do you prove a negative?
Regardless of the reasoning behind a false allegation, being falsely accused of such a horrific thing can lead to all sorts of negative consequences, so it’s important that you know what to do in the event that this happens to you.
Here are five important things to keep in mind if you ever find yourself falsely accused of a sex crime.
First – Keep Yourself in Check and Talk to No One
Even though you have been falsely accused of sexual abuse, you need to be careful. Yes, it’s hard. You know you aren’t guilty, and you want to talk to EVERYONE and tell them you’re innocent – like friends, family, co-workers, CPS, and most importantly the police. Stop! Shut up! Do NOT talk – to anyone! Do not answer questions, do not try to offer an innocent explanation, and DO NOT APOLOGIZE. The phone call from your ex-wife, the girl you met at the bar last night, the father of your daughter’s BFF, or whoever is accusing you is likely a controlled call – that means the police are listening and recording it, and apologies are twisted into confessions by the police and prosecution. Yes, it is extremely important to keep yourself in check. This means that you will need to watch what you both say and do at all times, as saying one thing that could be construed as off-color could turn your case into a disaster. Working with an experienced Southfield sex crimes attorney in order to properly prepare yourself is a great way to help prevent something from being twisted, and stop that that from happening.
Select An Experienced Attorney such as Satawa Law
There are a host of great attorneys who are experienced in many different types of cases. But when facing these charges, take the time to speak to the Southfield sex crime attorney team at Satawa Law, whose sole goal is to defend your rights and protect your future when it comes to this accusation. Having an attorney who is a specialist and highly experienced in sexual assault cases, especially when it comes to representing those who have been falsely accused of such a crime, is an important first step in seeing a successful result for you in the end.
Establish a Timeline
Take the time to sit down and establish a timeline of the alleged events in writing. Begin from the first day and end at the current day, being sure to include as much detail as you can remember. Collaborate it any way you can, and as many different ways as you can. Do you have witnesses? Texts? Social media posts? Missed/made phone calls? Selfies? Pictures? Do NOT assume this information will remain available to you forever. This type of documentation will be an extremely useful tool to include as part of your defense, and can mean the difference between winning and losing, or freedom and prison.
Talk to your lawyer about testing
Since the case involves sexual abuse, it may or may not be a good idea to be tested. More specifically, talk to your lawyer about testing that could possibly help to prove your innocence, or disprove the allegation against you. You and your lawyer can first consider a polygraph, to verify you’re telling the truth. Maybe psychological testing or a sex offender risk assessment could be helpful. Certain medical tests could support you in the right case. It all depends on the unique facts of your case. So speak to your lawyer about how you can help establish or verify your innocence anyway you can.
Compose a List of Witnesses
As soon as the allegation surfaces, and even prior to meeting with your Michigan sex crime lawyer, take the time to compose a list of witnesses who can corroborate your version of events and can help to prove that you are not guilty of the sexual abuse crimes you’re being accused of committing. You should always be sure to include the following information about the witnesses:
At long last, Michigan appears to be on its way to changing the rules of the State’s Sex Offender Registration Act – and with these changes bring some much needed sanity to a law much in need of it.
Currently, Michigan’s Sex Offender Registration Act, MCLA 28.721 et. seq., is a “one tier” system. This means that anyone convicted of a “listed” sex offense in Michigan is put on the same registry. The act makes no distinctions between dangerous child predators convicted of molesting young children, and teenagers accused “statutory rape” (MCLA 750.520d(1)(a)) for having sex with their underage boyfriend or girlfriend (so called “Romeo and Juliet” offenders). If you are convicted of a listed offense, you are on the registry – the same registry for all.
The Michigan State Senate passed a series of bills Thursday sponsored by Sen. Rick Jones, that would make sweeping, and critically needed, changes to Michigan’s Sex Offenders Registration Act.
First, Michigan would become a “Three tier” registration state, bringing the state into compliance with the Federal Adam Walsh Act requirements (Pub. L. 109-248, 120 Stat. 587). First tier offenders would be those convicted of lesser sex offenses such as indecent exposure, certain simple possession of child pornography crimes, and most 4th degree criminal sexual conductconvictions. They would not be listed on the public registry at all; rather they would register with the State Police once per year for 15 years, and their names and information would be available only to law enforcement. First tier offenders could petition a judge to have their name removed after 10 years.Second tier registration would be for those convicted of offenses such as date rape, 2nd degree (MCLA 750.520c) and 3rd degree (MCLA 750.520d) criminal sexual conduct offenses against adults, and most internet and child pornography offenses. Second tier offende rs would have to register twice per year with the State Police, and would be on the registry for 25 years.
The most serious offenders would be on the Third Tier, which would be reserved for those persons convicted of crimes such as 1stdegree criminal sexual conduct (MCLA 750.520b), and any conviction for sexually molesting a child under the age of 13. Tier Three offenders would be forced to register four times per year, and would be on the registry for life.
The new law would not re-define what constitutes a sexual offense (or any other crime) in Michigan – the age of consent for sex would remain 16, and various internet and child pornography statutes would be applicable at 18. However, the law would keep “Romeo and Juliet” offenders off the sex offender registry if they had consensual sex with a partner between 13 and 16 years old, provided there is no more than four years between their ages. In addition, offenders could not be placed on the registry until they reached at least 14 years old. Finally, the law would allow any person that was currently on the registry for crimes that fit these parameters to petition their judge to be removed from the list.
These are desperately needed, and long overdue changes to a registry system in Michigan that was over reaching and broken. As stated by Shelli Weisberg, legislative director for ACLU Michigan, “This is a fabulous first step for at least one group of individuals on that registry that probably gets treated overly harsh.”Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers (www.NACDL.org), and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.
It’s back in the news – again. That’s right, just when you thought it was safe to go outside, the “debate” regarding shaken baby syndrome, and its use in criminal courtrooms throughout the country, is back. On February 2, 2011, Emily Bazelon, a senior editor at Slate and the Truman Capote law-and-media fellow at Yale Law School, published a balanced, well researched, and thorough summary of the most recent state of the controversy surrounding shaken baby syndrome forensic evidence in the United States —Shaken-Baby Syndrome Faces New Questions in Court, (NY Times, 2/2/11).
Shaken baby syndrome is a term used to describe the idea that a set of three symptoms – subdural hemotomas, retinal hemorrhages, and edema (brain swelling – commonly known as the shaken baby triad, are diagnostic of intentional abuse by shaking to the exclusion of any other possible cause.
Other common tenants advanced by doctors staffing child abuse centers in pediatric hospitals across the country called by prosecutors as witnesses in these cases include: 1) that shaking, of an otherwise healthy child, causes retinal hemorrhages and subdural hematomas; 2) short distance falls cannot cause a severe or fatal injury; 3) chronic subdural hematomas do not rebleed spontaneously or with lesser trauma; 4) a child suffering from a serious and potentially head injury cannot experience a lucid interval between the inception of the subdural and his or her death; 5) and retinal hemorrhages are exclusively diagnostic of non- accidental trauma.[i]
When examining shaken baby syndrome allegations, it is important to note that the “True” Scientific Process takes a hypothesis, and conducts experimentation to disprove that hypothesis. To prove a theory using the scientific process, you must try to disproveit. You do not prove a theory true by looking for facts that support it, as such a method is fraught with what scientists term confirmation bias.[ii] The advantage of falsifiability is that it avoids confirmation bias, that is, the phenomenon that one finds that for which one is looking.
In contrast, the Junk Science commonly seen behind the forensic science that appears in courtrooms across the country is distinguished from “True Science” in that it relies on faulty scientific methodology. Researchers take a hypothesis (frequently that they have prejudged to be correct), and attempt to confirm or “prove” the hypothesis is correct (using anecdotal evidence), again running the risk of confirmation bias. As noted in the seminal US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), “Scientific methodology today is based on generating hypotheses and testing them to see if they can befalsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Daubert, 509 US 579, at 593.
SBS suffers from a severe case of failing to adhere to these important principals. The theory of shaking as the mechanism or cause of SDHs and retinal hemorrhages, as compared to SDF’s, has never been verified by testing. The theory has, however, been falsified. See, Duhaime, et al., 1987, supra.
From the mid 1950’s through the 1970’s, a pioneering pediatric radiologist named Dr. John Caffey (and others) developed the hypothesis of SBS based initially on a single case study – that of Virginia Jespers, a child nurse who had “confessed” to shaking children.[iii] Dr. Caffey described four cases of children who had subdural hematomas (SDH) and long bone fractures. See, Caffey, J., “Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma,” Am. J. Roentgenol and Radium Therapy, 1946, Vol. 56, No. 2, p 163. Dr. Caffey – at that time – drew no conclusions about the way in which the four children sustained their respective intracranial injuries; yet, this article is frequently cited as “proof” for the existence of this syndrome.
Dr. Henry Kempe published an article in 1962 in the Journal of the American Medical Association that concluded that all children with subdural hematomas and retinal hemorrhages had been abused by shaking – with no science, evidence, or data to support this conclusion. In 1971, Guthkelch hypothesized – based on only two cases of children who had SDHs, with no external evidence of impact – that the SDHs had been caused by human manual shaking. See, A.N. Guthkelch, “Infantile Subdural Hematoma and its Relationship to Whiplash Injuries,” BMJ, 1971; 2:430-31. Guthkelch did not, however, devise a way in which to test his hypothesis. Yet, once again, the article has been cited numerous times by physicians in numerous case series studies.
SBS is born out of reason and inference and not scientific testing. No data or research to determine if people could physically cause such injuries, and no attempt to adhere to the scientific method and falsify the hypothesis. The SBS theory of causation has never been validated by biomechanicians or even by physicians. Based only on other limited, individual anecdotal cases, other doctors joined the SBS bandwagon and the medical literature about SBS began to grow. Again, little or no research done, data collected, or experimentation conducted to support it. A theory born out of reason and inference, SBS has been confirmed solely by further reason and inference.
It is on this point – it’s origin – that SBS first should have demonstrated its flaws. As noted by one expert commentator:
“The medical literature upon which the diagnoses of SBS is based is replete with more than half a century of confirmation bias . . . . It is composed of a patchwork of “studies” each often consisting of less than a handful of cases which include suspect “confessions” to shaking and inconsistent methods of analyzing the ‘science’.”
“The data that have been cobbled together to support the hypothesis that shaking alone causes brain injury to children has a statistical significance of zero. And, ‘bad data’ that outright disprove or challenge shaking as the cause of brain injury in children are routinely discarded and explained away because they do not fit the prevailing misdiagnosis of SBS.”[iv]
The testimony that a child can only present with this “constellation” of three (3) symptoms has been has been strongly rejected by numerous other experts:
However,research for this Note uncovered no studies showing that cases of child abuse can be separated from other accidental or medical reasons for harm. Medical evidence is accumulating that other reasons for the possible harm, previously disregarded, should be given weight. If a caretaker says that a baby’s injuries were caused by a fall from a low height, they are assumed to be lying. Courts and medical authorities often state uncategorically that a fall would have to occur from the top of at least a two-story building to cause the SBS symptoms. However, a study published in 2001 indicates that a “fall from less than 3 meters (10 feet) . . . may cause fatal head injury and may not cause immediate symptoms,”] with the injury including the classic SBS pattern of retinal hemorrhaging and subdural hematoma. Eighteen observed deadly falls by children from heights varying from two to ten feet were examined. Thirteen of the children had subdural hematoma, five had skull fractures, and four (of only six examined for eye injuries) had retinal hemorrhaging. [Furthermore, twelve of the children had a lucid interval before expiring.
Gene Lyons, Shaken Baby Syndrome: A Questionable Scientific Syndrome And A Dangerous Legal Concept, 2003 Utah L. Rev. 1109, 1110 (2003).[v]
Similarly, the notion that subdural and subarachnoid hematomas are consistent with child abuse and are not consistent with non-accidental trauma has been seriously called into question:
Subdural and arachnoid hematomas as diagnosed in SBS are said to be produced by rotational forces that shear blood vessels as the brain is shaken and battered against the skull. These hematomas can also be produced by natural causes such as a ruptured berry aneurism,] congenital bleeding problems, osteogenesis imperfecta (brittle-bone disease), external hydrocephalus (water on the brain), and rebleed of prior hematoma. Some researchers suggest that vaccine reactions could also cause the symptoms of SBS. Recent medical research shows that lack of oxygen to the brain can, by itself, cause subdural hematoma.
Lyons at 1111.
Notwithstanding this, prosecutor’s continue to go forward with cases where the only evidence of ID (who did it based on the timing of the trauma), causation (the injuries could only be caused by intentional abuse), and intent (the trauma had inflicting the injuries had to be severe) is ALL supplied by doctors looking at X Rays, CT scans, and MRI’s and seeing the big three – subdural hemotoma, retinal hemorrhages, and edema (brain swelling).
See Amicus Curiae Brief of Physicians and Bio-Scientists on Behalf of Appellant Alan Yurko, Yurko v State, CR 98-1730 (9th Judicial Cir, FL) (attached).See, Foster, R.K., and Huber, P.W., “Judging Science – Scientific Knowledge,” Ch.3, p 38, et seq.
One of Caffey’s “factual” premises for his 1972 article was what he termed the “shake prone nurse.” Never once did Caffey refer to the actual medical data of the children the nurse was supposed to have shaken. Instead, he relied on a Newsweek article. See“The Boys Jeered Her,” Newsweek, Sept. 10, 1956. Nurse maid Virginia Jaspers was said that have admitted to shaking several infants in her care. As part of the factual “basis” for his 1972 article that the children in the nurse’s care were, in fact, shaken, Caffey quoted the confession the nurse allegedly made “that she shook some children.”
Elaine Whitfield Sharp, “The Elephant on the Moon.” The Warrior, Fall 2003.See also, J.F. Geddes & J. Plunckett, The Evidence Base for Shaken Baby Syndrome, 328 Brit. Med. J. 719 (2004); P.E. Lantz et al., Perimacular Retinal Folds from Childhood Head Trauma, 328 Brit. Med. J. 754 (2004); Michael T. Prange et al., Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants, 99 J. of Neurosurgery 143 (2003; Glenda Cooper, Doubts Grow on Shaken Baby Syndrome, The Sunday Times, Dec. 26, 2004, available here; Sandra Laville, Doubt Cast on Scores of Child Death Cases, The Guardian, June 13, 2005; Lee Scheier, Shaken Baby Syndrome: A Search for Truth, Chicago Tribune Magazine, June 12, 2005, at 10.
A hot-off-the presses published opinion of the Court of Appeals has finally determined that registration under Michigan’s Sexual Offenders Registration Act (SORA) is a “direct consequence” of guilt. People v Fonville, No. 294554 (Decided January 25, 2011). As a “direct consequence,” it is ineffective assistance of counsel to not identify this requirement to a defendant who is considering a plea offer for a charge that requires registry.
Before now, criminal defendants all too frequently agreed to plead guilty and take their punishments by way of jail or prison time, only to later be informed that their crimes also carry the onus of having to register as a sex offender for decades or life and the concomitant indignity and loss of liberty this registration engenders. It is not merely the requirements of registration that these defendants suffer, but rather they often lose their homes in order to satisfy the school-safety zone provision, lose their jobs because too many youths work at or visit their place of employment, lose their non-biological children who may live in their household, and lose the respect and dignity of their community peers.
Importantly, not all crimes that require registration under SORA are sexual in nature. Fonville himself pled guilty to Child Enticement, which the court agrees “includes no express sexual component as a requirement for a conviction of the offense.” But SORA does not distinguish between those who may deserve society’s worst opprobrium and those, like Mr. Fonville, who admittedly committed a bad act but did not commit a sexual act. Additionally, many registrants under SORA merely committed a “Romeo and Juliet” type offense where they engaged in completely consensual sexual behavior with a high-school sweetheart and yet, have to register without differentiation along with sexual predators, rapists, and child molesters.
It is certain that this decision will be appealed to the Michigan Supreme Court. We will all need to wait and see what, if anything, the Supremes will do with this issue. The Court of Appeals relied on a United States Supreme Court opinion which held that not advising a defendant of possible deportation proceedings was ineffective assistance because it was a direct consequence, as opposed to a collateral consequence, of conviction. SeePadilla v Kentucky, 130 S Ct 1473; 176 L Ed2d 284 (2010). But the Supreme Court may find this logic unpersuasive because deportation proceedings, as quasi-criminal actions, are akin to punishment which, as our courts have frequently held, SORA registration generally is not.Whatever the Michigan Supreme Court decides, this decision is a victory for defendant’s rights. It recognizes the dire consequence of SORA and makes clear that an attorney is wise to advise its clients on its requirements. This case, along with People v Dipiazza, 268 Mich App 1378; 778 NW2d 264 (2009), shows that our courts are moving toward recognizing that SORA is punishment, as intense and depriving of liberty as prison. Dipiazza held that SORA was punishment as applied to a particular defendant. And Fonville shows that SORA is a direct consequence of conviction which requires advice and counsel. Soon, perhaps, our courts will recognize the draconian nature of SORA is punishment for all who are required to register.
As if we needed yet another reminder, the United States Sixth Circuit Court of Appeals has “reminded” everyone once again that it is NEVER safe to possess child pornography – even for a “legal” purpose like an attorney or an attorney’s expert using it as an exhibit in court. On January 19, 2011, the Sixth Circuit reversed a ruling by a Federal District Court Judge in Ohio that an Ohio lawyer was not guilty of “creating” child pornography for use as exhibits in defending child porn charges in court.
The lawyer, Dean Boland, was working as an expert witness in a case in Cleveland, OH. While working as an expert in several Cleveland area criminal cases, Boland digitally “altered” several photo images in “child porn” to use as demonstrative evidence in court. As an example, in order to “prove” how hard it was to show knowledge by a defendant that an image is child pornography, Boland would take a photo of a child, and digitally put that child’s face in a photo on an adult’s body having sex.
Boland was charged in a federal indictment with “creating” child pornography for engaging in this practice. He was also sued civilly by the parents of the children whose images he “used” in his exhibits. An Ohio federal district court judge ruled that Ohio law protected Boland from both civil and criminal prosecution. But the Sixth Circuit reversed this ruling, and held that there is no “expert witness” exception to the federal laws on child pornography. This allowed the civil plaintiff’s to proceed forward with their lawsuits. The court wrote that “even when federal law allows participants in the criminal justice system to possess contraband, it does not allow the creation and possession of new contraband.” The court reasoned that instead of using the image of a child to demonstrate his point, “[Boland] could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.” The Sixth Circuit also cautioned that the federal government must closely supervise all child pornography used as an exhibit in litigation.
This ruling certainly limits the reach of the Supreme Court’s ruling re: virtual child pornography. Ashcroft v. The Free Speech Coalition (2002), 535 U.S. 234 (2002), involved virtual child pornography – I.e., child pornography not created with real children but rather with computers and animation. The U.S. Supreme Court ruled that you cannot prosecute that; virtual pornography is in effect a protected form of First Amendment speech. The Supreme Court specifically rejected arguments that virtual child pornography should be treated as indistinguishable from actual child pornography which is exempt from the protection of the First Amendment. The Court held:
In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children as were the materials in Ferber . . . . The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.
Id. at 250.
As the Supreme Court observed in Sable Communications of Ca., Inc. v. FCC 492 U.S. 115, 126, (1989), even “[s]exual expression which is indecent but not obscene is protected by the First Amendment.” Furthermore, the potential offensiveness of speech “does not justify its suppression.”Carey v. Population Services, Int’l 431 U.S. 678, 701 (1977).
Finally, in Renov. American civil Liberties Union 521 U.S. 844, (1997), the Court held that the interest in protecting children from harmful matter does not have infinite scope:
But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not “reduc[e] the adult population … to … only what is fit for children.” Denver, 518 U.S., at 759, 116 S.Ct., at 2393 (internal quotation marks omitted) (quoting Sable, 492 U.S., at 128, 109 S.Ct., at 2837_2838). [FN40] “[R]egardless of the strength of the government’s interest” in protecting children, “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Bolger v. Young Drug Products Corp., 463 U.S. 60, 74_75, 103 S.Ct. 2875, 2884_2885, 77 L.Ed.2d 469 (1983).
Id. at 875.By: Mark A. Satawa is a partner at Kirsch & Satawa, PC in Southfield, MI. He practices in the area of criminal defense, specializing in defending sex crimes, child molestation, internet stings, and child pornography. He is a contributing author in the book, INSIDE THE MINDS: STRATEGIES FOR DEFENDING INTERNET PORNOGRAPHY CASES (Aspatore 2008).
The seminar was described by ICLE as a “fast-paced, entertaining webcast featuring leading criminal defense experts discussing their tried and true practical tips for defending criminal sexual conduct cases.” The seminar covered a wide range of practical topics and practice hints on defending child sexual assault cases, including:
Master the elements of CSC offenses
Set the tone for a thorough client interview
Determine the best defense strategies for your case
Take your discovery to the next level
Conduct an effective preliminary examination every time
Effectively bargain during plea and sentencing negotiations