Friday, September 28, 2012

Sexual assault mistrial declared when expert tells jury that accuser was telling the truth

In Connecticut this week, another mistrial was declared in another sexual assault case after another expert witness, Child Guidance Center's Dr. Larry Rosenberg, improperly testified that the accuser was credible.  See here.

We recently reported a similar case in Texas where an expert improperly testified that a sexual assault accuser was almost certainly credible. See here.

In this latest case, a Norwalk, Connecticut police officer, Anthony Santo, was accused of sexually assaulting the daughter of a close friend.  The accuser, now 20-years-old, testified that she could not remember exactly when it happened, but believed that when she was 13 during a power outage, Santo allegedly put his hand underneath her pajamas and touched her genitals. Santo denied it and explained that the girl had told him that a boy had groped her.

The prosecutor called Rosenberg, clinical director of the Child Guidance Center, to the stand to testify about how common it is for children to keep the allegations of sexual assault to themselves. Astoundingly, according to the news report, Rosenberg said that 93 percent to 95 percent of the children who alleged sexual abuse are being truthful. And, he said, the vast majority of the remaining five to seven percent were found to be coached into false allegations by their parents, who were involved in some sort of custody dispute or divorce. Because there were no allegations of custody or divorce implications in the trial, the inference that the girl was a victim of sexual abuse was inescapable.

"Essentially what he was saying was the woman was telling the truth," the judge who declared the mistrial concluded. Substantial damage was done to the defendant's case by allowing this testimony.

The prosecutor in the case, Senior Assistant State's Attorney Maureen Ornowski, called the judge's decision to toss the trial "draconian" and "extremely unfair to the victim."  The "victim," of course, is the accuser, not the man whose due process rights were summarily taken from him by the musings of an expert witness.

Ironically, just last week, Santo's attorney, Gary Mastronardi, won an appeal in the state Supreme Court involving the same issue. That case is State v. Favoccia, and it is reported at 2012 Conn. LEXIS 345. There, the Connecticut Supreme Court agreed that the trial court abused its discretion by allowing an expert witness to indirectly testify about the truthfulness of a complaint's allegations in another sexual abuse case. The expert witness testified to the effect that the complainant exhibited certain behaviors that were consistent with those of sexual abuse victims. The appellate court determined that the statements impermissibly vouched for and bolstered the credibility of the complainant. The jury is responsible for determining questions of credibility, not a witness paid by the state, which is seeking to incarcerate the man on trial.

In this week's mistrial, the purported expert's testimony not only was prejudicial, it was misleading. While some studies show that only a small percentage of sex claims are definitively false, it is dishonest to state that only five to seven percent of all claims are false without also explaining that only a relatively small percentage of such claims are definitively sexual assaults. In between the claims reasonably certain to be actual sexual assaults and the ones reasonably certain to be false claims is a vast gray area consisting of the majority of the claims that can neither be classified as sexual assaults or as non-sexual assaults -- because we just don't know. That's the nature of these claims, where the act that gives rise to it is almost always committed in private. See our discussion of Dr. David Lisak's study on the subject here.  It is reasonable to assert that while the number of false and wrongful claims is unknowable, the percentage is likely higher, and perhaps considerably higher, than 5 to 7%.  A fairer way to describe it is to talk only about the claims where we know definitively whether a sexual assault occurred (a figure much, much lower than 100%). Of those claims, the percentage of claims that are definitively false is much higher than five to seven percent.  If the expert was intent on talking about false claims, he should have told the entire story, not just the part that paints the presumptively innocent man as guilty.