Defending against sex abuse allegations in custody cases.

Custody cases involving sex abuse require keen analysis and expertise in tort and criminal law, psychology, and medicine. Before taking one of these cases, seriously consider whether you can handle the wide range of issues involved. A general rule is, if you have any qualms about the client or the allegations, do not take the case. Any lingering doubts will affect your ability to represent the client zealously and in accordance with the law and the canons of ethics.

Once you take the case, establish ground rules for communication with the client. Make it clear that the client must be honest for you to develop an effective case strategy. Tell the client that dishonesty--no matter how slight--will adversely affect both custody and criminal proceedings. It may also increase the likelihood of tort liability and could result in perjury charges.

If the client has been accused of sexual abuse, advise that certain inappropriate acts--such as kissing the child on the lips or allowing the child access to the bathroom while the client is bathing--may be perceived by former spouses, untrained professionals, or government agencies as sexual abuse. If the client's actions were inappropriate but not sexually abusive, do not advise the client to deny that the the actions took place. Doing so could create more problems by implying sexual intent where there was none.

Assure the client that allegations of sexual abuse will not or should not preclude access to the child. Parental rights and duties--including access--can be restored through structured supervised visitation and counseling. If your client admits sexual abuse, advise him or her to hire a criminal lawyer immediately to defend those charges.

Explain that you will be using experts and discuss the role they will play. Detail the ethical obligations you are under,was well as the practicalities of the court proceedings. Also explain the extraordinary costs involved in taking the case to trial. In short, make sure your client is committed--both emotionally and financially--to defending the allegations.

Explain that the child will be required to recount the alleged sexual abuse to police, judges, and various medical and psychological experts. This may put stress on the child.

Team Players

You should field a team of professionals to help you handle the complexities of the case. These include a family lawyer, a criminal lawyer who has experience defending those accused of child sexual abuse, and medical and psychological experts who have experience in all aspects of sexual abuse. A separate expert should be hired as a consultant, especially in those states where consultants' work product cannot be discovered because it is a part of the attorney's work product.

Make sure your team can work together. Determine which attorney--criminal, family, or tort--will act as lead counsel. Base your decision on the weight of the evidence and how far along the criminal proceeding is.

Have an experienced criminal lawyer spearhead the criminal investigation. If a criminal charge, indictment, or trial is imminent, let the criminal lawyer take over.

Be aware of your client's Fifth Amendment rights and the risks involved in waiving them. The criminal lawyer should help in this area. State laws vary, but generally, invoking these rights in civil cases is detrimental because the opponent will argue that to do so implies guilt.

Many criminal lawyers believe that when a client is charged with child sexual abuse, the judge and the grand jury expect the accused to take the stand to deny the allegations. You and the criminal attorney, however, should discuss the Fifth Amendment implications and be comfortable with your client's credibility before you let that happen. Once the Fifth Amendment is waived, it ca 1not be reasserted later.

Mental health experts are the foundation of your case. Take time to select professionals who have clinical and practical experience in child sexual abuse and are familiar with the current literature in the area. They should have handled cases in which molestation was found and cases in which it was not.

Because of the amount of work involved in a sexual abuse case, you will have to rely heavily on experts. They should help you prepare questions for interrogatories, depositions, and trial; develop theories; form opinions; and make strategy determinations. It is crucial to have experts present during deposition because they will pick up on important bits of information that you might overlook.

Make sure your experts have well-defined roles. One expert should determine whether your client fits the profile of a pedophile. This experts should have experience with pedophiles either in the courts or in prison, and should also treat abuse victims. The expert should also be experienced in administering the appropriate tests, including the Minnesota Multiphasic Personality Inventory, the Millon Clinical Multiaxial Inventory-II, Rorschach, and IQ tests.

Psychologists disagree about the validity of an "abuser profile." Most literature indicates one does not exist, but many psychologists think otherwise. They point to factors common to abusers, including a history of abuse.

Polygraphs and Plethysmographs

Discuss with the criminal lawyer and the mental health experts on your trial team whether to use polygraphs and penile plethysmography. A penile plethysmograph is a device attached to the penis that measures sexual response to various stimulators. The basic principle of the test is that a man with pedophilic tendencies will become sexually excited when provided with visual and auditory pedophilic stimuli involving adult-child sexual encounters.

For many years, polygraph results have been uniformly held to be inadmissible, except by stipulation or in a few jurisdictions. But the landmark Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(1) may have changed that.

Daubert held that scientific evidence is not required to meet the test of general acceptance by the scientific community to be admissible. Since Daubert, trial judges have had to assess the validity of scientific evidence by its methodology and applicability to the issues of a case, increasing the possibility that polygraphs and penile plethysmographs may be ruled admissible.(2)

As disdainful as courts have been about using polygraphs, many criminal agencies give great weight to their results. Before ordering a polygraph, contact the local investigative agency and find out which polygraph examiners they use. Then contact a polygrapher as a nondiscoverable consulting expert. Before you retain anyone, however, make sure he or she is experienced nd holds all the requisite certifications.

When the test is given, make sure the questions asked are fact-specific and are based on the evidence that has been discovered. If your client fails the polygraph, retest. There are factors other than lying or guilt that can cause a low score. These factors include stress, sleeplessness, anxiety, illness, and confusion. If you need to retest, make sure the examiner combines the results of the second test with the results of the first so that both tests are considered a single determination of your client's truthfulness.

In states where the examiner can be retained as a consultant, have the criminal attorney retain the polygrapher and administer the test as a consultant so the results are not discoverable. Using the polygraph result this way, however, is a double-edged sword.

If your client fails the test and you try to protect it as part of your work product, the opposition may still attempt to obtain a copy of the results in discovery and your response may have to indicate its existence to preserve any work product objections. The judge will then assume that your client failed the test.

If your client passes the polygraph, the investigative agency still has the option of administering that the criminal charges or the indictment will be dropped, even if the client passes.

The police may also decline to retest but will send the results of the first test to a second polygrapher for review. To counter this strategy, find a local polygraph "guru" who has taught most of the other area examiners and have him or her administer the first test. This will increase the odds that the second polygrapher was taught by your examiner--making the results harder to criticize.

Penile plethysmographs are primarily used by experts to profile sex abusers. If you intend to use this method, retain an expert to administer the test and work up a pedophile profile. A strongly credentialed expert should administer the plethysmograph test and a battery of other tests to work up a clinical evaluation that will determine whether the client exhibits signs of pedophilia.

No battery of tests can prove whether a client abused the child or whether the abuse took place at all. Rarely is there an admission, a witness, or even physical evidence. But the abuse can be proven by factors--called validators or indicators--that are discovered by the attorney and the experts. These indicators can be physical, such as bruises, lacerations, or the presence of semen. Or they may be psychosocial, such as a child who acts withdrawn. Some are blatant, most are subtle, but they are numerous. And most are challengeable.

Have your experts delineate the psychological aspects of your case so you can apply them to the facts. You need to know what psychological theories are relevant to the abuse in order to structure discovery. The Handbook of Clinical Intervention in Child Sexual Abuse(3) should help you. It is used by clinicians who handle child sexual abuse.

Remember that no expert can prove or disprove sexual abuse allegations. Any expert worth hiring will admit that. An expert can, however, offer an opinion--namely, that within reasonable medical or psychological certainty, the abuse did or did not take place.

Other issues you should become familiar with include the suggestibility of child witnesses. Young children are suggestible and wish to ingratiate themselves with adult authority.

Find out if the child is exhibiting behavioral indicators of abuse. These include nightmares, age-inappropriate sexual knowledge, masturbation, and anxiety. Sometimes there are, however, other explanations for these behaviors. Nightmares can be caused by scary movies; age-inappropriate sexual knowledge can come from older friends, siblings, movies, television, and society. Masturbation can be caused by stress, and anxiety can be related to marital discord of the parents. Learn what the indicators are and use them to help your client.

When false allegations have been made, search for a motive for the fabrication. Find out if the child or the parent supporting the claim has made other similar complaints. If so, gather the police, medical, and mental health records involved. Examine everyone's sexual abuse histories.

Look for witnesses to the incident, and study the behavior of the child and the client immediately before and after the abuse allegedly occurred. Try to obtain evidence indicating; the accused is not a pedophile--such as his or her good reputation in the community and no record of past history of abuse.

Opposing Experts

Be prepared to attack opposing experts and their credentials, methodology, experience, and findings. You and your experts should be wary of general practitioners w ho deal primarily in areas such as marriage and family counseling. They are not likely to keep up with current literature and may be using old techniques--such as anatomically correct dolls--to communicate with the child. These may taint the child's testimony because they invite improper and suggestive interviewing techniques. Attack these techniques in discovery.

Depose and challenge experts who oppose your views. Make them justify their position. Show that what they perceive as abuse could be something else entirely. In short, use opposing experts to help justify your case.

For example, if you need to show that the child was unduly influenced by a parent or interviewer, question the opposing experts about child suggestibility. Force them to admit their conclusions are just opinion and that what they see as indicators of abuse could be caused by other factors.

In addition to the areas of discovery inquiry set out above, examine the factors that might indicate a potential cause for the allegation. Investigate any unresolved psychological problems that might validate or invalidate the allegations. These include issues of trust, hatred, and parent-child alienation. Depositions in these cases can be long, emotional, and exceedingly personal. Prepare yourself and your client accordingly.

Get copies of audiotapes of the child being interviewed about the abuse. Make sure the tapes are unedited. If you aren't sure, have them reviewed by an audio technician.

Obtain any photographs of injuries resulting from the alleged abuse or of the child reenacting the alleged abuse. Photos of your client interacting with the child and of the opposition interacting with the child are also useful. Videos are even better.

If you can, get any writings and drawings done by the child before and after the alleged abuse occurred and show them to your experts. Obtain all opposing expert materials and third-party investigation files, especially if they include other allegations that have been raised by the accuser or if they involve the child.

If you discover allegations of physical or sexual abuse involving the adult parties--either in their current marriage or in previous relationships--conduct thorough background checks on them. Check with child protective services to see if there are other allegations involving the child or other siblings, and depose the criminal investigators and agency personnel who investigated those claims.

Find out who has access to the child, such as neighbors, teachers, and child care providers, and, if necessary, check into their background. Children sometimes accuse Daddy because it is safer than implicating the real abuser, whom they fear.

Pre-Trial Tactics

If your client is accused of child sexual abuse, he or she will be treated as guilty by the court until proven innocent. This will affect the way your client must behave. Your client must be confident in his or her innocence but understand that the court, when faced with such an accusation, will take measures to protect the child pending its investigation.

Advise the client that it is not the best course to litigate temporary matters such as temporary custody or motions to restrict access in the face of an allegation or evidence of sexual abuse. Doing this could cause problems in the criminal case and force you to adopt a position other than simple denial. No tactical decision should be made initially except to establish your team and do your own investigation into the allegation.

It is more than likely that before you finish discovery or your experts complete their evaluation, the courts will impose supervised visitation. No matter how weak the evidence is, most courts err on the side of the child's safety. Knowing this, you and your client should comply with the court's wishes. Tell the court that although you do not believe the allegations, you understand the court's concern for the child.

Try to convince the court to give your client continuing access to the child that is supervised by a family member. Better still, work out a plan where the normal visitation pattern continues. The child should not be punished because he or she made a false allegation. Nor should the child be made to believe that your client has abandoned him or her. If the child normally spends the night with your client, attempt to maintain this by shifting the location to a relative's residence so the visit can be supervised.

If this is not feasible, arrange for more frequent but shorter visitation periods. Have more than one approved supervisor, since visitation may be affected by a supervisor's illness, conflict with the alleged abuser, emotional strain, or daily scheduling conflicts.

It is within these parameters that your client can begin to repair whatever emotional damage has been done to the child. If your client is unwilling to acknowledge the strain that the allegations have put on the child, you must decide whether to continue representation.

Court-Appointed Experts

If the court appoints an expert to investigate the allegations, make sure that he or she is qualified. Visitation should be structured so that your client--with the supervisor--can accompany the child to meet with the expert. Better yet, see if you can arrange for a neutral third party who understands the situation to escort the child to all the meetings with the court's expert to lessen any pressure on the child. The child will often try to please the accused parent by telling the expert the version of the story the child thinks the parent wants to hear.

Try to get the court to help you restore visitation or custody quickly. Usually the best way to do this is by asking the court-appointed expert to expedite the paperwork. Also ask the court to allow your mental health expert to spend unsupervised time to clinically observe the child to strengthen any opinion. Bear in mind that most courts will and should limit the number of times the child recounts the abuse. Request that the court enjoin third-party protective services and police from reinterviewing the child to avoid further trauma.

Move quickly to retain experts and complete the preliminary investigation and discovery so that you can prepare a plan of attack. Once all the information has been gathered, it must be analyzed. Meet with your experts, your client, and your criminal counsel and review the results together. Make sure that your client maintains realistic expectations about the risks involved in taking the case to trial. Be sure he or she approves of your case theme and trial strategy; Confirm this approval in writing.

In some states, a guardian ad litem is mandatory. In all other states it is discretionary. Historically, courts have agreed not to appoint a guardian as long as the parents cooperate with the court and agree to keep to the visitation plan. The appointment of a guardian increases costs.

If the court appoints one, make sure he or she has extensive experience handling sexual abuse cases. The guardian should have represented abusers, accusers, and children in other cases. Find out which judge will hear your case and how he or she generally handles these matters. Adjust your strategy accordingly.

Child abuse and child abuse allegations in custody cases are burgeoning. Cases involving allegations of sexual abuse by a parent raise specific factual, legal, and psychological issues that must be addressed. Representation requires great commitment and a desire to learn about the psychological issues involved, as well as a willingness to proceed despite the emotional obstacles. But once you know what is required, you can achieve optimal results for your client.

Notes

(1) 113 S. Ct. 2786 (1993).

(2) See also Thomas J. Mack, Scientific Testimony After Daubert: Some Early Returns from Lower Courts, TRIAL, Aug. 1994, at 23.

(4) HANDBOOK OF CLINICAL INTERVENTION IN CHILD SEXUAL ABUSE (Suzanne M. Scroi ed., 1982).