January 9, 2017 (Fault Lines) — Evidentiary rules go back a long way:
One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. (Deuteronomy 19:15)
Representative William Marsh of the New Hampshire House of Representatives has introduced a bill to require that evidence in sexual assault trials include more than the victim’s testimony:
A bill created after Concord psychologist Foad Afshar’s sexual-assault conviction [of a twelve-year-old boy] would require sexual-assault survivors to have additional proof of their assault other than their word.
House Bill 106 […] would require a victim’s testimony in a sexual assault case to have corroboration in instances where the defendant has no prior convictions for sexual assault, according to the bill’s text.
An accusation of child molestation is the worst possible charge for a defendant to face. There are a couple of different reasons for this. First of all, the nature of the crime evokes such a visceral reaction of horror and disgust that police, prosecutors, judges, and jurors aren’t inclined cut defendants any slack; the way they might for, say, drug addicts.
Second of all, the ubiquity of sex-offender registries make the consequences of a conviction something beyond life-changing. They’re more like life-ending. Assuming he even survives prison, a convicted child molester is probably never going to find a job or a place to live, ever again; and when he ends up homeless and on the streets, he can be arrested and imprisoned again for failure to register his “address” with the authorities.
That means that for most defendants facing sexual assault charges, the options are trial or plead guilty to something that’s guaranteed to destroy their lives. And the nature of the crime is such that, in most cases, the ultimate issue comes down to a “swearing contest,” a he-said/she-said question in which the jury makes the ultimate call based on the defendant’s and the complainant’s credibility.
Oftentimes, juries place a great deal of weight behind those accusations, especially when they come from children. And no matter how many times the judge or defense counsel explains the meaning of “beyond a reasonable doubt,” it’s hard to avoid the feeling that most jurors are unwilling to acquit without positive evidence of the defendant’s innocence. Better safe than sorry, goes the thinking.
Afshar’s conviction has had some repercussions among mental health providers in New Hampshire.
[Marsh] was particularly moved to create the bill when he was contacted by Michael Kandle, a friend and colleague of Afshar’s, and two other psychologists who told him they were afraid to take on children clients after the conviction because they felt they were at risk of being falsely accused.
In the immediate aftermath of Afshar’s conviction, Kandle stated:
“I can’t trust that the court will protect me from false allegations,” he explained, adding, “And if the court won’t help us, there’s really no better way than to just avoid the patients altogether.”
“I’m hoping this case will generate more discussion about how we’re going to handle these types of situations,” Kandle said. “Do I not treat (children) at all anymore? Do I install a video camera? . . . It’s a problem without a clear solution.”
It’s easy to understand the concern of Kandle and his fellow treatment providers. That said, this is a terrible bill. Take Marsh’s other rationale for introducing it:
Marsh said he drafted the bill after his daughter, who was a student of Afshar’s at the New Hampshire Institute of Art, brought the case to his attention.
“She said, ‘This isn’t the man I knew,’ and I trust my daughter’s judgment of people,” Marsh, a retired medical doctor, said Thursday night.
Trusting his “daughter’s judgment of people” (especially when it’s a teacher-student relationship, so she probably didn’t know Afshar that well) is not a reason to fiddle with evidentiary standards. As for Kandle’s concerns, there are steps providers can take to protect themselves against false allegations, such as videotaping or always conducting such sessions with a witness present. This will likely make things more expensive, but adding a corroboration requirement is a cure worse than the disease.
Again, this is because of the nature of the crime. Under the proposed law, a man who sexually assaults his daughter from ages 5 to 15 can’t be prosecuted if she goes to the police after she moves out of the house at age 18. It essentially makes it impossible to prosecute any defendant who’s never been convicted before and where the only evidence is the complainant’s word.
While that would make defense attorneys’ jobs easier, that’s not the way it should be. If someone holds you up at gunpoint in a dark alley, your testimony doesn’t need to be corroborated to get the case to a jury. Same goes for sexual assault allegation. Certainly, in either situation, the defendant will get his chance to test the State’s evidence. And while I’m not generally a fan of victim’s rights groups, Amanda Grady Sexton of the New Hampshire Coalition Against Domestic And Sexual Violence hits the nail on the head:
She said the bill would create an instance where a higher standard of proof would be required for sexual assault victims than any other crime, and would perpetuate the idea that victims lie about being assaulted.
“This bill would be saying a victim’s sworn testimony isn’t good enough, even if it’s been viewed as credible by 12 sworn jurors,” she said. (Emphasis added.)
Exactly right. Obviously, the jury system isn’t perfect, and innocent people are sometimes innocent victims are convicted of crimes they didn’t commit. That said, we don’t solve that problem by making it harder to convict the guilty ones.