5.30.2011

The “What About Bob?” Defense – How Law Enforcement Deals With This Defense In Child Sexual Abuse Investigations



By Lawrence W. Daly

One of the great things about the Constitution is a defendant has the right to confront their peers in a trail setting. Over the past three decades child sexual abuse crimes have been a part of the criminal justice system, like never before.
           Numerous defendants have been charged with a series of child sexual assault charges, ranging from child molestation to the rape of a child. There is no doubt that the majority of these charges are justified and some are not. In the pursuit of trying to bring accountability and responsibility to those who prey upon children zealous law enforcement officers and prosecutors have brought criminal charges which should have never been filed. With these charges comes a not guilty verdict. However, experience has demonstrated that the not guilty verdict doesn’t mean the criminal charges were inappropriately filed; the not guilty verdict means the prosecution did not meet their burden of proof beyond a reasonable doubt.
            When a defendant has to make a decision to go to trial or not, the first issue the defense attorney should consider is if the defendant has a proper and compelling defense. In child sexual abuse criminal charges, the defenses for the defendant are limited to only a few scenarios. Let us examine each one:
  1.  (Hygiene Purposes) I did touch her on her vaginal area, but it was for hygiene purposes. There was no sexual motivation and/or sexual intent behind the touching
  2. (Total Denial) I did not touch her, she is wrong and I have no idea why she is blaming me. I would never touch a child that way.
  3.  (What About Bob?) I didn’t touch her, but her step-father is Bob Francis and he could have done it. If Bob didn’t do it, then it could have been someone else.
4.  (The Grandfather Did It) I didn’t touch her, but the grandfather, well he is weird and I believe he molested his own children. Maybe he did it, because I didn’t.
5. (Accidental) I was horsing around with her and it is possible that I touched her on her privates and if I did touch her there it was an accident. There was no sexual motivation and/or sexual intent behind the touching.
6. (She Said She Was 18 Years Of Age) When I met her in the park, she told me she was 18 years old. I would have never touched her in a sexual manner if she was under age. What am I supposed to do, ask her for identification?
 7.  (I Must Have Touched Her While I Was Dreaming) You can ask my wife, my hands roam when I am asleep. She was lying next to me and it is possible I touched her, but I had to be dreaming
 8.(I Thought It Was My Wife) When I was asleep I thought it was my wife who was lying next to me and you can ask her, sometimes I just begin making love to her.  I had no idea my step-daughter crawled into bed with us. They are about the same height, weight and build.
 9. (I Must Have Crawled Into The Wrong Bed) I went out drinking last night and I guess when I came home, I went into the wrong bedroom and got into bed with my daughter. I would never have done that if I was sober.
10. (Retaliation – She/he Wants Revenge) This is commonly seen in dysfunctional homes, where the daughter and/or son are grounded, restricted, mobile telephones taken away, computers taken away, not allowed to talk on the telephone and/or a combination of all of these. Generally, these are false allegations and are easily resolved by law enforcement.
11.  (Adolescence Crush) It is commonly seen in the classroom, where the student falls in love with their teacher. Sometimes the student will be reading romance novels, which contain sexual assault themes and before you know it, the student is claiming she had this passionate affair with her teacher.
12.  (Peyton Place Syndrome) Commonly seen on the playgrounds of schools, where young girls ages 9-13 get together and decide they were touched by one of their teachers. This is common in the “me-too” scenario, where the girls get together and begin a rumor which grows legs.
13.  (Organic Problem) Some children have organic problems and due to these mental problems have accused others of sexually assaulting them.
14.  (Custody Dispute) This has become a major problem area in the domestic court system. Mothers and fathers are claiming their child was sexually abused and that there should be an investigation by everyone in the court system, including law enforcement. Studies have been conducted reference the use of child sexual abuse allegations in a custody dispute and the studies are conflicting in their findings. Some researchers say the percentage of false allegations are near 60% and other researchers say true allegations of child sexual abuse are 80%. Each research camp has their work cut-out if they are going to come to a conclusion about how child sexual abuse is true or false when dealing with custody dispute issues
15.  (Folie-A-Deux) This is defined as, “…from the French for “a madness shared by two”.  Is a psychiatric syndrome in which symptoms of a delusional belief are transmitted from one individual to another? This does happen when a mother and daughter want to retaliate against a father who may have left the family for another woman.
16.  (Parental Alienation) In child custody disputes it is not uncommon for one of the parents to try and contaminate a child against their father or mother. This problem was identified in the late 1980’s by a now deceased Dr. Richard Gardner.
17.  (She Came Onto Me) The true pedophile has an unrealistic viewpoint of what is age appropriate sexual contact and will tell you that the seven year old child came on to him. They will provide you with this defense with a straight face.
 18.  (Me Too) Commonly seen between friends. In support of their friendship, one young adult will make a sexual allegation against an individual and when the case is investigated each young adult will say they were sexually assaulted (me too) and they will use each other as the witness who will support the sexual assault allegation. This is commonly seen in the “Peyton Place Syndrome”, but this defense is generally outside of school arena and deals with the defendant who is an adult friend, one of their relatives, generally an uncle or cousin, and another young adult, a friend of the victims.

Investigating The Defenses

The defense(s) of child sexual abuse allegations isn’t as simple as law enforcement officials and child protective services would lead you to believe. The allegations can be complex and if they are, the law enforcement child sexual abuse investigators and the child protective caseworkers’ need to put on their critical thinking hats. The defense(s) utilized by defendants may be true and then again they may be merely an excuse for their sexualized behavior.
Over the years the first response by those responsible for investigating claims of child sexual assaults would hypothesize that children at that age wouldn’t have the sexual knowledge to make such a claim; children don’t lie; children are as believable and truthful as adults; and so forth. This professional investigative mentality, statements, attitude and conjecture by investigators has not changed over the past three decades. So where do the children of today get their information? With the invention of MySpace, Facebook, Twitter, Smartphones, Direct Television, HBO, Showtime and other media venues, children can enter different sexualized worlds by the click of a button. Adults and young adults that I have counseled and interviewed over the past three decades have disclosed to me they began viewing pornography at the age of five to ten years old.
The “What About Bob” defense is this author’s favorite defense, because it creates a scenario where the investigators responsible for investigating the allegations, have to consider an alternative hypothesis to who may have committed the sexual assault, if one was committed at all.  Generally, this defense is seen in murders and other major crimes, where the defense is it had to be the other guy. “It wasn’t me” said the perpetrator, “Bob did it and he had the opportunity, motive, access and he isn’t a good guy.” Now if you are the law enforcement investigator would you consider the possibility that Bob did it? Would you explore this avenue along with the other responsibilities of the lead investigator investigating allegations of a sexual assault? As a law enforcement investigator would you believe the child and move forward, or would you go back to the child and question them about “Bob”?
As this article has completely and thoroughly explained, allegations of child sexual abuse are not as simple to investigate as once seen. The numerous defenses in which the defendant uses may seem ridiculous at first, but over my 30 years of investigating and consulting on child sexual assault cases, the above defenses are real and have merit to a point. Some of these defenses are common sense, but if evaluated, examined and evaluated properly, maybe the defendant had a reason for what he/she did and/or said.
So those of you who have the responsibility to investigate child sexual abuse allegations in the criminal justice system, keep your critical thinking hats on at all times and prepare for that interrogation of the defendant. The goal of any investigator is to conduct an investigation with an open mind, neutrality, non-bias and without prejudice. When the defendant steps forward with one of the above defenses, give the credibility of the defense as much credit as possible and then get investigating the allegation. Sometimes, the defense presented has validity and the investigator can decide the merits and determine if a crime occurred. On the other side of the coin, sometimes you will have to hold in that smile, because you believe inside, the defense given by the defendant is simply ridiculous and holds no credibility.

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