A Maryland prosecutor is preparing to put a 3-year-old on the witness stand to testify against a man accused of sexually molesting her. A 4-year-old nearly had to take the stand to testify against her father in a sex-abuse case in Montgomery County but was spared at the last minute when her father pleaded guilty to a lesser offense.
These cases are part of a growing national problem facing prosecutors and judges as more and more sexual-abuse cases surface, involving very young children. At issue are a defendant's right to face and challenge his accuser -- a right that the judge in Montgomery County held to be paramount -- and the impact of the face-to-face confrontation on the child and the integrity of her testimony. Compounding the difficulty of these cases for prosecutors is the need to establish in court that the child knows right from wrong and is telling the truth.
"There's a real problem nationally with how you go about qualifying a child under the age of 5," says Robert Bud Cramer, the district attorney in Madison County, Ala., who was honored last year for his pioneering work in dealing with child sexual-abuse cases by the National Association of Social Workers. "An adult raises his hand and swears to tell the truth and nothing but the truth, but when you're doing that with a very young child, the court has got to be assured the child understands that." Judges are beginning to recognize they have a different set of problems with a child witness.
The victims, he says, are "just getting younger and younger." What happens is that the offender "is calling your hand. Most of the offenders recognize, especially with legal representation, that the case depends upon the ability of the child to tell the story in the courtroom."
In Alabama, he says, courts can conduct a competency hearing in which the defendant's lawyer can attack the competency of the child. "We're advocating the abolition of the competency hearing. We're saying it's up to the judge or else let the jury decide what weight to give the testimony. Our judges have been ruling that the child isn't competent to testify and we're out of court before we start.
"Down here in the Bible Belt the quickest way is to say, 'Do you go to church every week; do you know the difference between right and wrong? ' It's incredibly archaic and frustrating to watch judges take standards you can expect them to apply to those who are 13 and above and see them approach a 4- or 5-year-old child the way they would an adult or a teen-ager."
Furthermore, he says, if the courts take a blanket approach that a child under 7 is not competent to testify -- which has been an assumption in the past -- "we're telling offenders children that age are fair game.
"We're trying to come up with ways to have these children's stories preserved and not have them locked out of the criminal justice system."
Changes that he and others will propose to the legislature include a videotape law that would allow a taped interview with an expert witness to be used in court instead of the child's testimony. The measure Cramer favors would also allow lawyers for both sides to question the child through the interviewer. "The child would be interviewed by both lawyers in a deposition kind of setting outside the presence of the offender."
They will also ask the legislature for an exception to the "hearsay" rule of evidence to allow experts, such as doctors who have examined and interviewed a young victim, to testify about what the victim told them occurred. "We've taken a case up on appeal with a 2-year-old victim. We can't qualify a 2-year-old. But she told the doctor who had examined her what happened." That part of the doctor's testimony, says Cramer, led to a mistrial.
Why a growing number of sexual abuse victims are so young is open to speculation. What is clear is that traditional courtroom procedures militate in favor of the defendant and against a very young witness. As a result, the younger the victim the likelier the abuser will go free. It is hard to imagine a greater perversion of the judicial system.
Cramer says 14 states have adopted videotape laws so far and one has changed the hearsay rule to allow experts who have interviewed a child to give fuller testimony.
It is incumbent on courts and legislatures to realize that they are now dealing with a wholly different kind of victim who cannot be protected by blind adherence to the old rules. Until they do, they might as well declare open season on toddlers.