PURSUIT OF TRUTH
A: The most fundamental challenge confronting adult survivors of childhood sexual abuse (CSA) seeking justice is having the psychological and emotional capacity to report the abuse. As our film points out, there are numerous reasons a survivor may be reluctant to tell anyone about the abuse, no less to file an initial report with the authorities. These include partial or total traumatic amnesia resulting from the abuse, an emotional and/or familial attachment to the abuser, confusion, shame/guilt, fear, and concern that the person to whom the disclosure is made will not believe it. A survivor must overcome all of these obstacles to even begin the legal process.
The same reasons for reporting delays apply to survivors’ difficulty in filing timely lawsuits, civil or criminal. Laws in virtually all jurisdictions, known as statutes of limitations (SOL’s), require that court cases be filed within a specified period of time. In CSA cases, that time period typically dates back to the time of the abuse itself, adjusted to the date the survivor becomes an adult. As a result of the psychological effects of the abuse suffered, many survivors are not ready to file complaints within the time period required by law and if they are forced into the system before they have recovered sufficiently and have adequate support around them, the process can literally be deadly. Regrettably, too many survivors find themselves barred by the applicable SOL from filing any legal claims whatsoever.
Those survivors who are in a position to file a timely claim must find competent legal representation, which is problematic in civil cases (prosecutors file CSA charges in criminal cases). While many lawyers will accept survivor cases on a contingency fee basis (the lawyer agrees to be paid out of funds to be recovered from the perpetrator) where there is an institutional defendant with “deep pockets,” e.g., the church, a university, the Boy Scouts, etc., few attorneys will agree to that fee arrangement if the perpetrator is an individual without significant personal finances. In such cases, lawyers typically will charge hourly fees that are prohibitively high for almost all survivors, who are then left without counsel unless they can find an attorney willing to serve “pro bono publico” – for the public good. Moreover, most lawyers are not experienced in this field and are not sufficiently competent to handle survivor cases, which involve unique issues relating to the psychological damages caused by CSA, the presentation of expert testimony as to the effects of traumatic amnesia resulting from the abuse, and the investigation and preparation of a compelling case constructed around the survivor’s own testimony, perhaps corroborated only by evidence of the effects of the abuse on the survivor’s development as a child.
Survivors who are able to file timely claims and obtain competent counsel are still faced with numerous systemic challenges. The legal system is an adversary process that requires survivors to confront their abusers in court, no small task given the events that led to the litigation. By initiating the court process, survivors expose their private lives to public scrutiny. Court discovery rules infringe upon survivors’ privacy rights by requiring disclosure of sensitive information concerning survivors’ mental health, intimate relationships, and sexual experiences. Any survivor entering the legal system must be sufficiently healthy to withstand the rigors of this privacy invasion.
Other systemic challenges include the difficulties in obtaining corroborating evidence in what is tantamount to a “cold case” because of the time lapse between the acts of abuse and the filing of the legal claim; the need to educate judges and juries as to the way that survivors who suffered traumatic amnesia typically recall events, which may otherwise appear to be incomplete, inconsistent, and not credible; the abusive deposition practices in civil cases in which defense lawyers are permitted to grill the survivor about irrelevant matters for hours on end; and the numerous delays in the court process that test the survivor’s psychological and emotional stamina. Given all of these impediments, it is no wonder that survivors in our film noted that they felt as if they – rather than their abusers – we are the ones on trial.
Q: What are some of the changes you would advocate for in terms of how these crimes are investigated and prosecuted?
A: There are numerous changes needed to make the investigation and prosecution of cases involving CSA survivors less traumatizing for survivors and more likely to achieve justice. But three fundamental changes must be made before other systemic reforms are possible.
First and foremost, the legal system’s general bias against older cases, such as those involving adult survivors, and the mindset of too many law enforcement officers and prosecutors to be skeptical of delayed reporting, must be eliminated. Police and prosecutors need training to understand legitimate reasons exist for delayed reporting in survivor cases and to recognize that when CSA is an event recalled by an adult, it is a different type of crime in contrast to crimes that are reported contemporaneously with their occurrence. Additionally, because adult survivors are describing traumatic events that occurred in their childhood, they are likely to be processing the information in the same way they tried to understand the events as a child. Thus, investigators and prosecutors must apply different approaches and skills in eliciting critical information about the case. As our film depicts, the Ashland, Oregon Police Department has developed innovative programs that are proving to be effective in encouraging survivors to file CSA complaints and in investigating the charges. We are hopeful that those programs will serve as a model for other police agencies to emulate.
Second, both police and prosecutors must overcome the systemic notion that CSA survivor cases are too difficult – legally and emotionally – to handle. Investigators and prosecutors must receive training as to the effects of childhood trauma on adult survivors, including the results of studies establishing that the memories of such events typically surface gradually and therefore, should not be considered to be untruthful simply because they are incomplete as to certain details. While most survivor cases do not include an eyewitness to the abuse who is able to corroborate the survivor’s testimony, a thorough investigation often will uncover other corroborating evidence, e.g., photos, diaries, letters, and effects of the trauma on the child’s development and functioning (which one of the experts featured in the film referred to as “a living psychological autopsy”).
We were dismayed to discover that some prosecutors’ offices have a policy against instituting CSA charges if based solely on the word of the survivor. This excuse is bogus because prosecutors routinely bring cases involving other types of crimes, such as theft, burglaries, and bank robberies, based on the victim’s account alone. Moreover, as one of the attorneys in the film points out, if the case is properly investigated and prepared, some evidence to corroborate the survivor’s testimony always exists. The prosecutorial function should be to bring legitimate charges to empower the survivor and to deter abusive behavior and then to leave the ultimate decision as to the perpetrator’s guilt to the jury to make.
Finally, law enforcement officers and prosecutors must view the legal process as part of a survivor’s recovery because it provides an opportunity for survivors to become empowered by confronting their abusers and, for the first time, having a certain amount of control over the destiny of their perpetrators. Thus, throughout the process, survivors should be given the authority to make certain discretionary choices, e.g., whether to make a pretextual phone call to the abuser for the police to record, whether to testify at trial, whether to extend a particular plea offer to the defendant, whether to request a certain sentence of imprisonment after conviction. While prosecutors are able to advance some of a survivor’s interests, prosecutors also are obligated to protect the broader interests of society and will not act as a survivor’s personal lawyer. Therefore, we advocate for a change that is already being implemented in some states – providing an independent attorney to victims in criminal cases. This innovation is particularly important in survivor cases because counsel would be able to help educate the prosecutor as to the survivor’s progress in the recovery process, protect the survivor’s privacy rights against compelled production to the defense of confidential records, and assist the survivor, with input from the survivor’s support team, in making vital decisions regarding litigation strategy.
Q: Sex crimes are crimes of power. Can you describe the journeys of some of the victims you portray to move from powerlessness to positions of power?
A: Each of the healing journeys of the survivors depicted in the film is remarkable in its own right. Each survivor has progressed from CSA victim to advocate for other adult survivors. Collectively, they are an impressive group. Two of the survivors became attorneys specializing in representing adult survivors in civil cases against their abusers, while another survivor became a law enforcement officer working in a special unit investigating internet sex crimes against minors. Two others endured the rigors of the criminal justice system in successfully prosecuting their abusers and then became CSA activists. Other survivors became actively involved in specific CSA issues – one began an Institute to provide support to survivors, while another is spearheading the movement in his state to abolish the SOL’s in CSA cases.
While each journey from victim to strong survivor differed in certain respects, common themes emerged. The first step from a position of powerlessness was to move out of guilt, secrecy, and denial to acknowledge the truth of their abuse. That acknowledgement made it possible to tell someone about the abuse. Disclosure enabled the survivors to obtain understanding and help. Ultimately, the community of support gave the survivors the strength to assert their right to legal redress against their abusers. Another motivation to take legal action was the concern that the abuser was free to abuse other children. One of the survivors in the film describes her journey:
For twelve years, I remained silent about my abuse. With my silence came a sense of powerlessness that tormented me daily. My years were filled with despair and hopelessness that I felt would eventually suffocate me. It was only on strong suspicion that a younger cousin was a victim of the same abuse that something finally stirred within me. It was no longer just about me anymore. . . . . If I didn’t do something to stop my abuser, who would? It became a matter of me having all the power to stop the abuse, and a sense of strength and courage gave me purpose to change. I was a part of something bigger than myself and I had to break my silence, take back my voice and be the person I was meant to be.
Each survivor in the film exhibited courage, perseverance, and inner strength in overcoming the effects of the abuse they suffered as children and regaining their voices. Their healing journeys – which they describe in their own words in our film — are stories that deserve to be told and need to be heard.
Q: In what ways do the legal and law enforcement systems systemically favor the abusers over the abused?
A: Some of the ways in which the legal system is weighted in favor of abusers over survivors have been referenced in previous answers. These include SOL’s that require survivors to file cases before they are psychologically ready to confront their abusers, systemic skepticism of delayed reporting by survivors, survivors’ difficulties in remembering completely and describing traumatic events that occurred during childhood, obstacles in obtaining competent counsel to represent survivors, privacy interests of survivors that may be violated because of court discovery rules that apply when a lawsuit is filed, and institutional bias against bringing survivor cases because they are too difficult to win. Each of these issues constitutes an impediment for survivors to report abuse to law enforcement and to pursue justice in the judicial system. Taken collectively, they tilt the legal playing field heavily in favor of abusers.
In criminal cases, there is a more fundamental disparity between the rights of the survivor/victim and those of the abuser/defendant. Our Constitution guarantees the accused in a criminal prosecution certain basic rights, e.g., to obtain adequate representation by a lawyer, to receive a speedy trial, to the disclosure of certain evidence by the prosecution, to confront adverse witnesses, and to refuse to testify or otherwise incriminate herself/himself.
As the complainant in a criminal case, the survivor is not afforded any of these Constitutional rights. While some jurisdictions do provide crime victims with certain rights, the scope of the rights varies among the states and none are as extensive as the Constitutional protections given to those charged with crimes. Thus, survivors do not typically receive independent counsel to protect their personal interests, or have the right to demand a speedy trial, or are provided with evidence defense counsel intends to use against them. Prosecutors can help bridge this “rights gap” by extending to survivors the right to make certain discretionary decisions concerning their cases, such as the timing of various court proceedings, whether the case will proceed to trial or end in a guilty plea, and whether the survivor will testify and, if so, at what point in the trial.
For sound public policy reasons, survivors’ rights should be codified in state constitutions and statutes. Obtaining the proper balance between the rights of the abused and the abusers will encourage more survivors to come forward to report their abuse to the authorities. And a legal system that affords equal rights to survivors is more likely to achieve justice in the end.
Q: How has the legal landscape for those bringing these charges changed over the last few years, if at all? Has it improved or gotten more difficult?
A: Successful prosecutions in a number of high-profile cases, e.g., Jerry Sandusky, Catholic priests, have increased public awareness generally of the plight of adult survivors seeking justice against their abusers. However, CSA remains a national epidemic – an estimated 25% of girls and 20% of boys are sexually abused and there are some 42 million survivors in this country alone. While specific cases have caught the public eye, most people are unaware of the overwhelming prevalence of CSA in our society. Thus, the need for more education on this issue is glaring.
However, the winds of change are stirring. Recent guilty verdicts in cases that have received extensive publicity indicate that at least some jurors are developing a better understanding of the legitimate reasons for delayed reporting of sexual abuse and of the accuracy of abuse memories, even those recovered years after the abuse. Moreover, the obstruction of justice/accessory after the fact conviction of Monsignor William Lynn by a Philadelphia jury demonstrates that juries are willing to hold responsible those officials who cover up or otherwise facilitate CSA, even if those persons did not commit the actual abuse. While somewhat anecdotal, these are positive developments nonetheless.
On another front, the SOL reform movement has made some strides over the last few years. A number of states have abolished their SOL’s in CSA cases and have enacted “window” laws that provide for a specific period of time in which survivors whose SOL’s already expired can file civil suits against their abusers (pursuant to a U.S. Supreme Court decision, retroactive criminal prosecutions are barred). Other jurisdictions have at least expanded the SOL’s to provide survivors with more time to file CSA cases. While the reform movement’s victories are significant in themselves, the opposition forces are numerous, well-financed, and politically connected. These groups are continuing their vigorous efforts to block all reform legislation. Thus, the battle over SOL reform will continue to be fought in one jurisdiction after another.
In sum, the disappointing reality is that the legal system’s handling of survivor cases has not changed dramatically over the last few years. While some improvements have been made, there is much work still to be done to achieve lasting justice for survivors.
Q: How important is it for the victims to get the truth out into the open…to families, communities, etc? Describe what you learned about this from profiling the victims in your film.
A: One cannot overstate the importance to survivors of getting out the truth of their abuse. As one survivor in the film succinctly stated, “the pursuit of truth is the healing journey.” Every survivor in the film acknowledged that their road to recovery began when they disclosed their abuse and someone believed them. The validation that comes with the understanding and belief of others that the abuse actually occurred is essential to enable survivors to obtain support and begin to heal from the deep wounds caused by the abuse. Thus, telling the truth about their abuse and being believed is transformative for survivors, who can then begin a process of change that is essential to their recovery.
One of the experts in the film noted that reporting abuse is “always worth it because having voice matters. Being heard matters. Truth matters.” Even for survivors who choose not to pursue legal redress against their perpetrators, getting the truth out concerning their abuse provides them with an opportunity to be heard, believed, and supported. The validation that results from that process is critical to help survivors deal with their abuse in the open rather than continue to suffer in silence. Eventually, such disclosures enable survivors to feel stronger and proud that they were able to overcome their fears and speak the truth.
For survivors who seek to hold their abusers legally responsible, the primary goal of litigation should be to reestablish the survivor’s sense of empowerment. In that sense, the legal process should be part of the survivor’s recovery process. Confronting one’s perpetrator about the abuse is empowering and allows the survivor to regain her/his voice. As one lawyer stated in the film:
What I always tell clients is that if you get to the point where you confront your perpetrator, that’s a victory in and of itself. . . You’ve turned the tables. You’ve let it be known to the perpetrator that you know what they did, you know the truth of the situation.
Acknowledging the truth of the abuse and then speaking it to others allows survivors to begin their healing journeys. Survivors are entitled to have their truth heard and to their day in court if they so choose. Only then can real justice be theirs.
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