5.28.2011

Circumstantial Evidence – It Is Usually All There Is In Child Sexual Abuse Investigations



By Lawrence W. Daly, MSc

            When law enforcement receives a complaint that a child has been sexually abused, the complaint is generally made to Child Protective Services (CPS) and/or by the general public directly to law enforcement. Each jurisdiction has their own policy and protocols of how CPS and law enforcement report the case to one another.
              Law enforcement and CPS generally have reciprocal agreements, that within 24 hours, each of them should be made aware of the complaint report. The important aspects of why each should have a case report are CPS and law enforcement have two different and distinct roles.  CPS is responsible for the safety of the child victim and family and to provide family services. Law enforcement is responsible to conduct the criminal investigation into the child sexual abuse allegations and apprehend the alleged perpetrator.
            The law enforcement child sexual abuse investigator has two specific investigative tasks when beginning the criminal investigation.  The first task is to identify any and all witnesses who may have information about the child sexual abuse allegations.  The second task is to identify any and all physical, biological, trace and direct evidence. If the investigator is capable of identifying, protecting, preserving, collecting and analyzing all the evidence they are able to identify, then the facts of the case may rest upon more than mere circumstantial evidence.
            In child sexual abuse cases it is not uncommon for the only evidence to be heard in court is the direct evidence i.e. the testimony of the child victims and the perpetrators. There may be some collateral information presented once the trial begins, but generally proving that a crime has occurred will be the responsibility of the child victim. If the child victim is under the age of 10 years, then there maybe exceptions to the hearsay rule, which by statutory means, those who heard the child disclose that she/he had been inappropriately sexually touched by the perpetrator, can testify to what they heard the child say this. If the child submits to a medical examination, the physician may be able to testify to the medical examination and findings. Since most medical examinations do not reveal any medical evidence, the physician will explain to the judge and jury that the medical examination was normal.  Normal is common in child sexual abuse cases for many medical reasons.
            When the prosecution puts their case together and prepares the case for trial, it is generally going to be based on circumstantial evidence. As I have stated above, what evidence is generally available to the prosecutor for the presentation of their case is the child victim’s testimony. The defense then has to decide if they want their client, the defendant, to testify. If the defendant had previously provided a statement to the lead law enforcement child sexual abuse investigator, then the defendant may not want to testify, because the statement they gave was incriminating. Some defense attorneys believe if their client doesn’t testify and explain away the sexual abuse allegations, then the jury will have no other choice but to convict. If the defendant testifies, then he will have the opportunity to tell the jury that he didn’t do what he is being accused of and the child is not telling the truth.  The defense should be that the child is mistaken, confused, wrong, been coached to say what he/she is saying, acting in revenge, retaliation and so forth.  The child victim can only detail what the defendant did and the prosecutor can hope and pray the jury believed the child.
            The problem with circumstantial evidence is in today’s society they live in the CSI world. Everywhere one turns, television has a new show on forensic evidence. The jury expects the police to uncover evidence for each crime and to bring that evidence to court and show it to them.  The jury wants to see, touch, smell, and hear the evidence. The jury wants to be able to say there was physical, medical, trace, and/or biological evidence to link the child victim to the perpetrator.
            If the prosecution can’t prove their circumstantial evidence case to the jury, then the defendant will walk for a crime they may have or may have not committed. Evidence of a child sexual abuse crime may have existed, but the law enforcement officer was not made aware of its existence, and/or during the search for evidence, the evidence was not located. For whatever reason, there may be the absence of evidence; the circumstantial evidence will have to speak loudly for itself and the child victim. The case will hang on the balance of the child victim’s testimony.
            Each judge and jury is different and their standard for what is enough proof that the defendant committed the crime or not, is dependent on the circumstantial evidence and what the judge and juries expectations are. Therefore, the prosecutor must demonstrate that they believe in the circumstantial evidence they have presented and the defense attorney must believe the prosecution has not met their burden of proof. The decision of who has reconstructed the alleged crime in a credible and reliable manner generally has the ability to prevail. The next time you have the opportunity to listen to a child sexual abuse trial, ascertain if the case being presented is circumstantial or not. 

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