Perhaps because I more typically represent parents than children in family court, I have long been concerned with the risks of incorrect findings that a parent has sexually abused a child–the problem of “false positives.” The two family court cases that continue to trouble me years after their conclusion both involve fathers who were found to have sexually abused their child. In neither case was I their trial attorney, yet in both cases I had great concerns that the allegations against my clients were false.
In the first case, my concern stemmed from the timing of the allegations. Mother had made these allegations twice against my client, both times in the midst of custody disputes. On both occasions these allegations were made immediately after the guardian ad litem issued a report recommending that father have custody of the child (these were the days in which guardians were expected and allowed to make explicit custody recommendations). In the first instance, mother was not believed. In the second instance, my client allegedly decided to “celebrate” the guardian’s recommendations by, later that same day, penetrating his daughter with an object with such violence that she was bleeding from her genitals. This child had always preferred living with her mother and I have always suspected that mother herself concocted a plot to violate her daughter and have her daughter lie about the identity of the violator in order to obtain custody. This time, DSS and the courts believed the mother and my client was found to have sexually abused his daughter.
The second case involved “credible” allegations that my client had sexually molested his pre-school age son. Among the allegations the child abuse experts found credible were the son’s claims that “daddy had cooked his wee-wee in a pot” and put his wee-wee “down the drain.” Here, I should note that this child was not missing his genitals. I would think this fact would be quite meaningful to the sexual abuse “experts” that this child’s report was not credible. Another of the serious allegations the child made was that my client stuck his finger up his butt causing “poop” to come out. These sexual abuse examiners were made aware–by mother and her family–that the child was frequently constipated and given suppositories. One might hope that these sexual abuse examiners would connect the constipation and suppository use and the child’s story about his father to conclude that my client had given his son suppositories but that evidently is hoping too much.
As a result of these sexual abuse findings, these fathers are unable to see their children until they acknowledge their sexual abuse to their child. Since these fathers contended–in my opinion possibly accurately–that they did not abuse their child, I am unsure whether they ever resumed a relationship with their children.
I attended law school the same time my wife attended social work graduate school. It was an era of repeated day care sexual abuse media stories. I remember debating whether such abuse was occurring with my wife. From her social worker perspective, the problem of mass day care-related child sexual abuse was real and frightening. From my skeptical law student perspective, I didn’t see how children could report subterranean sex dungeons or violation with sharp kitchen implements without there being a bit of physical evidence to corroborate these allegations. Over time our culture has gotten more skeptical over mass sexual abuse allegations. The government’s ability to marshal significant resources to pursue such claims is one of the reasons I think there should be a higher burden of proof for child abuse cases. However, I think our legal culture is well aware of the risk of false allegations of sexual abuse.
However, if the risk of false positives in child sexual abuse cases weighs upon me, my case that resolved this week has made me ponder the risk of accurate allegations of sexual abuse being disbelieved by the court–the risk of “false negatives.” I began my representation in May 2006, just four days prior to father’s motion for temporary custody or visitation. At that point, the primary evidence my client had to support her request that father only have supervised visitation was her eyewitness account of husband doing something inappropriate, and slightly sexual, with the child. Her husband vehemently denied this allegation and noted that the timing of wife’s allegation was suspect–true–and without corroboration–also true.
Upon being retained I asked father’s attorney[who was not his attorney for trial] if she would consent to continuing father’s motion to give me more time to prepare. Father’s attorney agreed to this request. Soon we agreed to a guardian ad litem for the child, and that guardian began investigating. The guardian suggested, and we agreed to, psychological examinations for the parents. Father’s psychological examination raised significant concerns regarding the child’s safety if left in his care.
Through the 56 months of my representation, father was never allowed to be alone with the child. Slowly, as professionals within the family court system–guardians ad litem, psychological evaluators, mental health professionals, judges, attorneys–observed father’s behavior, the concerns my client raised came to be believed by others, and additional, more frightening concerns, developed. By the middle of trial, the family court judge hearing the case was very comfortable approving an agreement in which father relinquished his parental rights, despite the fact that there was no stepfather ready to adopt her.
Throughout this litigation I have frequently ruminated upon opposing counsel’s initial agreement to continued the first hearing. Were the circumstances reversed–my client had gone without seeing his daughter for months and now mother’s counsel sought to continue my hearing to provide additional time to prepare–I almost certainly would not have been so gracious. Yet, had opposing counsel not agreed to the continuance, father would most likely have been awarded unsupervised visitation and my client and I shudder over what might have happened to the child then.
I sometimes wonder if opposing counsel agreed to the continuance because she too had concerns about her client and she didn’t want to feel responsible if her client harmed the child. I wonder if I too would act accordingly in such circumstances. I further wonder whether it would be an ethical violation of my duty of loyalty to do so (See Rule 1.7, South Carolina Rules of Professional Conduct) and how I should balance this duty of loyalty to my client with my duty to respect the rights of third persons, which in this circumstance would be the right of the child to be free from potential abuse by a parent. See Rule 4.4, South Carolina Rules of Professional Conduct.
Family court judges are asked to resolve many disputes in which it is likely that horrific and spurious allegations are based on little more than the parents’ mutual acrimony. Ferreting out the few such allegations that are actually worrisome from the numerous false ones is a task I would not want the responsibility of undertaking.
Meanwhile, the risks of false negatives in cases such as this one continue to weigh upon me. I see no easy or obvious resolution.