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•':,. <. / Archives of Sexual Behavior, Vol. 23, No. I, 1994

False Rape Allegations

Eugene J. Kanin, Ph.D.1

'I I With the cooperation of the police agency of a small metropolitan community, \ 45 consecutive, dispo~ed, false rape allegations covering a 9 year period were studied. These false rape allegations constitule 41% the total forcible rape cases \ (n = 109) reported during this period. These false allegations appear to serve . three major functions for the complainants: providing an a lib~ seeking' revenge, \ i and obtaining sympathy and attention. False rape allegations are. not the i consequence of a gender-linked aberration;' as frequently claimed, but reflect impulsive and desperate efforts to cope· with personal and social stress \ situations. · l KEY WORDS: rape; sex_ual assault; unfounded rape; rape mythology. I \ INTRODUCTION I Of the many controversies surrounding the crime of ra,pe, no more thorny issu~ arises than that dealing with.false allegations. o·enerally, this issue is couched in terms of unfounded rape. However, we are not addressing that concept here since unfounded rape is not usually the \ I equivalent of false allegation, in spite of widespread usage to that effect. There is ample evidence, frequently ignored (see MacDonald, 1971; \ I \ Brownmiller, 1975), that in practice, unfounded rape can and does mean I many things, with false allegation being only one of them, and sometimes the least of them. Other factors that are typically responsible for unfounded declarations are victim's late reporting to the police, lack of I corroborating evidence, lack of cooperation by the victim and/or witnesses, I reporting in the wrong jurisdiction, discrepancies in the victim'~ story, \ wrong address given by the _victim, victim's drunkenness, victim's drug .oOl,;,' \ ::i ~ '\':!~ usage, victim's being thought a_ prostitute, victim's uncertainty of events, ,}~~ . 1 I Dcpartmenl of Sociology and Anthropology, Purdue University, 1365 Winthrop E. Stone Hall, Wcsl Lafaycuc, Indiana 47907-1365. \ . 81 ------I 82 Kanln False Rnpe Allegntlons 83 I . victim's belligerence (Clark and L~wis, 1977; Hursch, 1977; Katz and Currently, the two main identifiable adversaries involved in the false Mazur, 1979; Kanin, 1985; LaFree, 1989). In sum, the foregoing largely rape allegations controversy are the femiriists and the police. The fem:nists represent those conditions that coul~ seriously frustrate efforts to arrest are by far the most expressive and prominent on this issue. Some feminists · and/or convict· the offender. This paper deals exclusively with false rape take ·the position that the declaration of rape as false or unfounded largely allegations: the intentional-reporting ?fa forcible rape by an alleged victim means that the police do not believe the complainant; that is, th!:! rape . when no rl3-pe had occurred. I ' · . . charges are real reflections of criminal: assault, but the agents of the l False rape charges have probably been in existence ·as Jong as the : criminal justice system do not believe them (Brownmiller, 1975; Russell, ! concept of rape. However, in _the 20t~ century, medical jurisprudence saw 1984). Some feminists virtually deny the existence of false rape accusations 'I a new development that enabled false; allegations to be viewed as a singular and believe the concept itself constitutes discriminatory harassment tow~rd instance of gender-related lying, sorn1ething quite different in nature from women (see Grano, 1990). On the pther hand, police are prone to say I the false• accusations of robbery or purglaryI that were made by men. In the reason for not believing some rape complainants resides in the fact I short, false rape accusations became ia reflection of a unique condition of that the rapes never occurred (Payton, 1967; Wilson, 1978; Jay, 1991). women,· not unlike that of kleptomania (Abelson, 1989). This new devel­ Medical Examiners lend support to this police position by. emphasizing opment was the masochistic nature df woman doctrine, a perspective that the ever-present possibility that rape complainants may be lying (Shiff, assumed women had a subconscious ~esire for rape, as evidenced by their 1969, 1971). . I rape fantasies (Freud, 1933; Deutsch, 1944; Horney, 1933), and that neu- · The purpose of this paper is to report our findings on the incidence rotic individuals would convert tht:hir fantasies into actual beliefs ·and and dynamics of false rape allegations from a long-term study of one city's policy agency. · memory falsification (for an extensi~e. and critical treatment of this per- ' . spective, se·e Edwards, 1981, 1983; Kamn,. 1982; Bessmer, 1984). In addition, some influential medi~al figures adop~ed the position that false METHOD \. rape allegations were widespread (M\inninger, 1933; Guttmacher and Wei- . i · hofen, 1952). Many legal scholars ~nthusiastically endorsei;i this medical position (Wigmore, 1940; Juiiver, 1960; Comment, 1973; Hibey, 1973) and This investigation is· essentially a case study of one police agency in commonly recommended that rape coriiplainants be routi~ely subjected topsy­ a small metropolitan area (population_ = 70,000) i,n the ,vlidw~stern United chiatric examination in order to dete~ine their truthfulness (Guttmacher and States. This city was targeted for study because it offered an almost, model • I .· Weihofen, 1952; Sherwin, 1973; Comment, 1973). An American· Bar laboratory for studying false rape allegations. First., its police agency is not Association committee offered a si~ilar recommendation to this effect as inundated with serious felony cases and, therefore,_-has the freedom and • I early as 1937-1938 (Weihofen, 1959). the motivation to r~cord and thoroughly pursue all rape complaints. _In fact, In the legal literature, pseudologia plzantastica became the authorita­ agency policy forbids police officers to use their discretion in deciding tive scientific label for the condition responsible for false rape reporting whether to officially acknowledge a rape complaint, regardless how ~uspect that complaint may be. -Second; the dedaration of a false allegation follows (Grablewski, 1958; Juliver, 1960). P~eudologia phantastica was described a highly institutionalized procedure. The investigation of all rape com­ as a "Delusional· state in which the cpmplainant truly believes that she had plaints always involves a serious offer to polygraph the complainants' and been raped although no rape,',and.~erhaps no sexual contact of any kind, the 'suspects. Additionally, for a declaration of false charge to be made, had taken place. Since she- firmly 9elieves this non-fact, her story is UIJ­ the complainant must admit that n6 rape had occurred .. She is the sole shakaole" (Bessmer, 1984), Less pre_tentious legal scholars made the same ' agent who can say that the rape charge is false. The police department point by merely. making referenceh to delusional and hy~~erical states will not declare a rape charge as false when the complainant, for whatever (Smith, 1953-1954; Comment, 1970). In recent years, however, possibly as reason, fail5 to pur:me the charge or cooperate on the case, regardle~ how a response to the women's mov.emeht, members of the mental health and much doubt the police may have regar.dirig the validity of the charge. In legal community have become· mark~dly less likely to express such a posi­ short, these cases are declared false only because the complainant admitted tion on false rape allegations. In England, judges still rather freely comment they are false. Furthermore, only one person is then. empowered to enter on the mendacious nature of womeh (Lowe, 1984). into the .records a formal declaration that the charge is false, the officer I I ! ---::=:::--=--~ I i Kunin 84 False Rape Allegallons 85 ! l i . . . • i iri charge of records. Last, it should; be noted that this department does The study of these 45 cases of false rape allegations inexorably led I not confuse reported rape attempts ,vith completed rapes. Thus, the rape to the conclusion that these false charges were able to serve three major l complainants referred to in this paper are for completed forcible rapes func~ions for the complainants: providing an alibi, a· means of gaining re­ ! only. The foregoing leaves us with a fertain confidence that cases declared venge, and a platform for seeking attention/sympathy. This tripartite model false by this police agency are indeep a reasonable-if not a minimal­ resulted from the complainants' own verbalizations during recantation and reflection of false rape allegations made to this agency, especially when does not constitute conjecture. Of course,. we are not asserting that these one :considers that a finding of false1 allegation is totally dependent upon .· functions are mutually exclusive oi_ exhaustive; rather, these rape recanta­ the recantation of the rape charge. \ ~ .. tions focused on a single factor explanatiori. A_ possible objection to these We followed and investigated all false rape allegations from 1978 to · recantations concerns their validity. Rape recantations could be the result 1987.. A ranking police official notified us whenever a, rape charge was of the complainants' desire to avoid a "second assault" at the hands of the declared false and provided us withj the records of the case. In addition, police. Rather than proceed with the real charge of rape, the argument the investigating officers provided any requested supplementary information goes, these women withdrew their accusations to avoid the trauma of police so that we could be confident of th~ validity .of the false rape allegation investigation. declarations. · I Several responses are PO!lsible to this type of criticism. First, with very I few exceptions, these complainants were suspect at the time of the com­ . I plaint or within a day or two after charging. These recantations did not FINDINGS follow prolonged periods of investigation and interrogation that would con­ I stitute anything approximating -a second assault. Second, not one of· the Incidence of False Allegations detectives believed that an incident of false recantation.had occurred. They . I i argued, rather convincingly, that in those cases where a suspect was iden­ Widely divergent viewpoints ar~ held r~garding the. incidence of false tified and interrogated, the facts of the recantation doyetailed with the rape reporting (Katz and Mazur, 1979). For example, reports set the figure susp~ct's own defense. Last, the policy of this police agency is .to apply a . from lows of 0.25% (O'Reilly, 1984) :and 1 % (Krasner et al., 1976) to highs statute regarding the false reporting of a felony. After the recant, the com­ of 80-90% (Bronson, 1918; Commi,nt, 1968) and even 100% (see Kanin, plainant is informed that she will be charged with filing a false complaint, 1985). All of these figures represen,t releases from some criminal justice punishable by a substantial fine and a jail sentence. In no case, has an agency or are estimates from clinical: practitioners. The extraordinary range effort been made on the part of the complainant to retract the recantation. of these estimat_es makes a research~r suspect that inordinate biases are at Although we certainly do not deny the possibility of false recant~tions, no work. · ·: evidence supports such an interpretation for these cases. Regarding this study, 41 % (n f= 45)·of the total disposed rape cases (n = 109) wer~ officially declared ~alse during this 9-year period; that is, by the complainant's admission that:no rape had occurrecj and the charge, therefore, .was false. The incidence :figure was variable from year to year Alibi Function. and ranged from a low of 27% (3 :out of .11 cases) to a high of -70% (7 out of 10 cases). The 9-year period ~uggests no trends, and no explanation Of the 45 cases of false charges, over one-half (56%, n = 27) served has been made for the year-to-year: fluctuation. the complainants' need to provide a plausible explanation for some sud­ Although very little inforrnatio)l exists regarding ~he char.acteristics of denly foreseen, unfortunate consequence of a consensual encounter, usually the complainant, some data can be; offered. These false complainants are sexual, with a male acquaintance. An assailant is identified in approximately all white, largely of lower socioeconqmic background, and the major.ity were one half of these cases. Representative cases include the 'following: modestly educated. Only three complainants had any education beyond high school. The mean age of thes~ women was 22. On the basis of the An unmarried 16-year-old female had sex with her boyfriend and later became limited information available, these t'omen could not be distinguished from concerned that she might be pregnant. She said she had been raped by an unknown assailant in the hopes that the hospital would give her something lo abort the those whose complaints were recorded as valid. possible pregnancy.. . . I ; ·1 I I ···--·-

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86 Konln False Rope J\llegnllons ''\~87. \~~} An 18-year-old woman was having sex with a boarder in her mother's house for A married 30-year-old female i-eportdd that she had been raped in her ap'l[lment <1"1%:' complex. During the polygraph exam.ination, she admilted that she was a willing· period of 3 months. When the mother learned of her behavior from other boarders,' ~l;J. partner. She reported that she had ~een raped because her partner did not slop the mother ordered 'the man lo leave. The complainant learned that her lover was ·:·t~I before ejaculation, as he had agreed; and she was afraid she was pregnant. Her packing and she went lo his room and told him she would be ready to leave with '';. husband is overseas. \ him in an hour. He responded with ''who the hell wants you." She briefly argued i with him and then proceeded to the police sfation lo report that he had raped her. The above cases are prototypical cases where the fear of pregnancy is para- She admitted the false charge during the polygraph examination. mount in motivating the rape chaige. This theme is constant, only the sce­ A 17-year-old female came to headquarters ands.aid that she had been raped by nario changes in that the lover isl black, the husband is out of state ori a a house parent in the group home in which she !ived. A female house parent · I . . accompanied her to the station and told the police she did not believe that a rape job, the husband had a vasectomy, the condom broke. Only three cases had occurred. The complainant failed the polygraph examination and then admitted deviated from this tradition: i · 'that she liked the house parent, and when he refused her advances, she reported I the rape to "gel even with him." A divorced female, 25 years of age, J,hose parents have custody of her 4-year-old child. She Jost custody al the time of her divorce when she was declared an unfit A 16-year-old reported she wa~ raped, and her boyfriend was charged. She later­ mother. She was out with a male friend and got into a fight. He blackened her'eye admitted that she was "mad at him" because he was seeing another girl, and she and cut her lip. She claimed she wai raped and bealen by him so that she could "wanted lo get him into troubll:." explain her injuries. She did not wan~, to admit she was in a drunken brawl, as this admission would have jeopardized her upcoming custody hearing. · I . A 16-year-old complainant, her girlfrjend, and two male companions were having Attention/Sympathy-G·etting Device a drinking party at her home. She openly invited one of the males, a casual friend, to have sex with her. Later in the ev~ning, two other male acquaintances dropped Although this device seems to be the most extravagant use for which in and, in the presence. of all, her sex partner "bragged" that he had just had sex with her. She quickly ran out to another girlfriend's house and told her she had a false rape charge is made, it is also the most socially harmless in that been raped. Soon, her mother was called and the police were notified. Two days no one was identified as the rapist. Approximately 18% (n = 8) of the later, _when confronted with the contradictory stories of her companions, she false charges ~!early served this function. The .entire verbalization of the admitted that she had not beeq raped.. Her charge of rape was primarily motivated by an urgent desire to defuse what surely would be public infoi:mation among her charge is, by and large, a fabrication without base. The following are typical friends at school the next day, her ptomiscuity. examples: I . A 37-year-old woman reported .havirg been raped "by some nigger." She gave · An unmarried female, age 17, abruptly left her girlfriends in the park one afternoon conflicting reports .of the incident on two occasions and, when confronted with allegedly to go riding with a young man, a stranger she met earlier- that morning these, she admitted that the entire s.loIJ was a fabrication. She feared her boyfriend who wanted her to smoke marijuana with him. Later that day, she told her friends had given -her "some sexual disease," land she wanted to be sent to the hospital to she ·was raped by this man. Her friends reported the incident to the police, and "get checked out." She wanted a resJ;ICciablc reason, i.e., as an innocent victim of the alleged victim went along with the rape charge because "f didn't ~ant them to rape, to explain the acquisition of her infection. know that I lied to them." She explained that she manufactured this sloiy because . I . she wanted the attention. - I An unmarried female, age 17, had .been having violent q·uarreJs with her mother Revenge who was critical of her laziness and style of life. She reported that she was .raped . I so that her mother would "get off my back and give me a little sympathy." i An unmarried female, age 41, was in postdivorce counseling, and she wanted more Essentiafty, this category invblved a false rape report as a means of attention and sympathy from her counselor because she "liked him." She fabricated retaliating against a rejecting mal~. Twenty-seven p\'!rcent (n = 12) of the a rape episode, and he took her to the police station and assisted her in making cases clearly seemed to serve "this .function. These rejections, however, · the charge. She could not back out since she would have to admit lying lo hi!"· . I She admjt!cd the false allegation when she was offered lo be polygraphed. ranged from the very evident cases o.f women who were sexually and emo- tionally involved with a reciproi:ating male to those women who saw. themselves spumed from what was1 in reality the females' unilateral involve­ RELATED FINDINGS ment. Regardless, these women '.responded with a false rape charge to perceived rejections. Because the ~uspect is always identified, the false al­ In addition to the foregoing, certain other findings and observations legations potentially pose the greatest danger for a miscarriage of justice. - relevant to false allegations warrant comment. First, false allegations failed I Examples of these types of cases /J.re as follows: to include ac::cusations of forced sexual acts other than penile-vaginal inter- I I 88 Kanln False·Rape Allegations 89 course. Not one complainant mention,s forced oral or anal sex. In contrast, Practitioners in the ~erital health and legal professions, however, will read­ these acts were included in approxima:tely 25% of the founded forcible rape ily recognize that these false rape reports are not really exceptiqnal complaints. Perhaps it was simply psychologically and socially more prudent exaggerations in light of what people rather commonly do in order to satisfy for these women to minimize the humiliation of sexual victimization by not these same needs in other contexts. Consider the extravagant and perjurious embroidering the event any more ttlan necessary. This phenomenon has accusat{ons that routinely pepper divorce and child custody proceedings, been observed previously (McDowell! and Hibler, 1987). · , and the inordinate departures from the truth that have accompanied cre­ Second, although th~ literature liberally refers to various extortion/ dentialed and respected political and corporate figures in their quest for scams as responsible for false rape cliarging (Comment, 1968; MacDonald, I recognition and office. And think of the petty and commonplace transgres­ 1973), no such cases were encountered or could even be recalled by mem- sions that people frequently verbalize as reasons. for having committed bers of. the police agency.-This type of case may very well be a period homicide. i•· piece, or perhaps it was even then tJ;ie exceptional case. Extraordinary at­ No evidence exists to suggest that something unique or defective is tention would readily have been forthcoming since this theory nic~ly in the female condition that prompts such behavior. Rather, something bio­ meshed with the position of prevaili9g authorities who stressed the omni­ logical, legal, and cultural would seem to make false rape allegations · present threat of female cunning and stealth. One authority, (MacDonald, inevitable. If rape were a commonplace victimization experience of men, 1973), for example, cited a 1918 arti~le (Bronson) to illus'trate a blackmail I • if men could experience the anxiety of possible pregnancy from illicit. af­ case since he never encountered on¢ himself. fairs, if men had a cultural base that would supp.art their confidence in In a similar vein, no apparent: case of pseudologia phantastica sur­ using rape accusations punitively, and if inen could feel secure that vic­ faced. The earlier view of a deluded complainant, tenaciously affirming her I timization .could elicit attention and sympathy, then men also would be victimization, just does not appear liere. These women were not inclined making false rape accusa_tions. .., to put up a steadfast defense of thei~ victimization, let alone pursue it into . Most problematic is the_ question of the generalizability of these· find­ the courtroom. Recantation overwhelmingly came early and relatively ings from a single police agency handling a relatively small number of cases. easily. Certainly, false rape. allegatioris can arise from a deluded condition Certainly, our intent is ·not to suggest that the 41 % incidence foun9 here but we failed to find indicators for what was once offered as the most com- ' . be extrapolated to other populations, particularly in light of our ignorance man explanation for false rape allegation. regarding the structural variables that might be influencing such behavior One of the most haunting and; serious implications ·of false rape al­ and which could be responsible for wide variations among cities. B.ut a far legations concerns the possibility of :miscarried justice. We know that false greater obstacle to obtaining "true" incidence figures, especially for larger convictions occur, but this study orilyl tells us that these false accusers were cities, would be the e~traordinary variations in police agency p.olicies (see weeded out during the very early stages of investigation. However encour­ Comment, 1968; Newsweek, 1983; Pepinsky and Jesilow, 1984); variations aging this result may be, we cannot claim that false charging does not incur so diverse, in fact, that some police agencies cannot find a single rape com­ suffering for the accused. Merely to! be a rape suspect, even for a day or plaint with merit, while others cannot find a single rape complaint without two, translates into psychological anti social trauma. ·· merit. Similarly, some police agencies report all of their unfounded rape I cases to "be due to false allegation, while -other agencies report none of i I their unfounded declarations to be .based on false allegation (Kanin, 1985). ' CONCLUSIONS I : Some of these policies are really nothing more than statistical and proce~ · I dural legerdemain. On the other hand, a degree of confidence exists that \Ve feel that these false accusati'ons can be viewed as the impulsive and the findings reported here are not exaggerations produced by some sort of desperate gestures of women simply ~ttempting to alleviate understandable atypical population, that is, nothing peculiar exists about this city's popu­ conditions of personal and social di*ress and that, as an aggregate, labels lation composition to suggest that an unusual incidence or patterning of connoting pathology, e.g., delusional states, are uncalled for. One can be false rape allegations would occur. This city is not a resort/reveling area tempted to· pigeonhole this type of t,onduct since we view it as extreme, as or a center attracting a transient population of -any kind, attributes that deviant, as criminally reckless. At first glance, false rape allegation seems have been associated with false rape reporting (Wilson, 1978). The major to be a rather extreme ge.sture to sa~isfy alibi, revenge, or attention needs. culprit in this city may well be a police agency that seriously records and . i ' I 9C1 Kanin False Rape Allegations i 91 . I pursues to closure all rape compla{nts, regardless of their medts. We may REFER,ENCES well be faced with the fact that the most efficient police departments report . I the higher incidence of false rape a,llegations. In v~ew of these factors, per- Abelson, E. S. (1989). The invention of kleptomania. Signs 15: 123-143. i haps the most prudent summary s~atement that is appropriate from these Bessmer, S. (1984). The Laws of Rape, Praeger, New York. data is that false rape accusations are not uncommon. Since this effort is Bronson, F. R. (1918). False accusations o[ rape. Am. J. Urol Sex. 14: 509-510. I 1 Brownmiller, s: (1975). Against Our Will, Simon and Schuster, New York. the first at a systemati~, long-term, on-site investigation of false rape alle­ Clark, L., and Lewis, D. (1977). The Price of Coercive Sexuality, Woman's .Press, Toronto. gations from a single city, future Jtudies in other cities; with comparable Comment. (1968). Police discretion and the judgement that a crime has been committed. policies, must assess the represendtiviness of these findings. Univ. Penn. Law Rev. 117: 227-322. . V Comment. (1970). The corroboration rule and crimes, accompanying a rape. Univ. Penn. Lay.• I Rev. 118: 458-472. i I/" Comment. (1973). Complainant credibility in sexual offense cases: A survey of character I testimony and psychiatric experts. J. Crim. Law and Crim. 64: 67-75. · ADDENDA Deutsch, H. (1944). The Psychology of Women, Vol. 1, Grune and Strat!on, New York: Edwards, S. (1981). Female Sexuality and the Law,. Martin Robertson, London. I Edwards, S. (1983). Sexuality, sexual offenses, and conceptions of victims in the criminal ju~tice I process. Victimology 8: 113-130. In 1988, we gained access to Jhe poli~e records of two large Midwest­ Freud, S. (1933). New Introductory Lectures on Psychoanalysis, Norton, New York. Grablewski, J. T. (1958). Necessity and corroboration ofprosecutrix's testimony in prosecution ern state universities. With the assi.stance of the chief investigating officers for rape. Villanova Law Rev. 3: 220-222. Grano, J. D: (1990, Spring). Free speech v. The University of Michigan. Acad. Quest., pp. for rape offenses, all forcible' rape complaints during .the past 3 years were 7-22. . . I examined. Since the two schools produced a roughly comparable number ' Guttrnacher, M., and Weihofen, H. (1952). Psychiatry and the Law, Norton, New York. of rape complaints and false rape ailegations, the false allegation cases.were v Hibey, R. A. (1973). The trial of a rape case: An advoi:ate's analysis of corroboration, consent, combined, n = 32. This represents exactly 50% o~ all forcible rape com­ and character. Am_ Crim. Law Rev. 11: 309-334. Horney, ·K. (1933). Feminine Psychology, Norton, New York. plaints reported on both campuseJ. Quite unexpectedly then, we find that Hursch, C. (1977). The Trouble with Rajle, Nelson-Hal!," Chicago.. . these university women, when filin~ a rape complaint, were as likely to file Jay, D. R. (19~1). Victimization on the college campus: A look at three high-profile cases. a false as a valid charge. Other rep6rts from university police agencies sup- Campus Law Enforce, 35-37. · V Juliver, M. (1960). Psychiatric opinions as to credibility of witnesses: A suggested appro"ach. port thes~ finding~ (Jay, 1991). \ · · · Cal. Law-Rev. 48: -648-683. In both police agencies, the tc/,king of the complaint and the follow-up v Kanin, E. J. (1982). Female rape fantasies: A victimization study.. Yictimology 7: 114-121. investigation was the exclusive rdponsibility of a ranking female officer. V Kanin, E. J. (1985). Unfounded rape. Paper presented at the Academy of Criminal Justice I Sciences annual meeting, Las Vegas, NV. Neither agency employed the polygraph and neither declared the complaint. Katz, S., and Mazur, M. (1979). Understanding the Rape Victim, Wiley, New York. Krasner, W., Meyer, L, and Carroll, N. (1976). Victims of Rape,' U. S. Government Printing false without a recantation of thel charge. Most striking is the patterning Office, Washington, DC. · of the reasons for the false allega,tions given by the complainants, a pat­ LaFree, G. (1989). Rape and Criminal ]~ice, Wadsworth, Belm_ont,.CA. terning similar to that found f?r the nonsfudent city complainants. Lowe, M. (1984). The role of the judicial)' in the failure of the sexual offenses (amendment) Approximately one half (53%) of t.he false charges were verbalized as serv­ act to improve the treatment of the rape viciim. In Hopkins, J. (ed.), Perspectfres on 1 Rape and Sexual Assault, Harper and Row, London, pp. 67~88. · . ing an alibi function .. In every case, consensual sexual involvement led to MacDonald, J. (1971) .. Rape Offenders and their Victims, Charles C Thomas, Springfield, IL. problems, whose solution seemed tq be found in the filing of a rape charge. VMacDonald, J. (1973). False accusations of rape. Med. Aspects Hum. Sex. 7: 170-193. . Mennir:iger, K. A. (1933). Cited in Wigmore, J. (1940). Evidence in Trials al Common Ldw, The corriplaints motivated by reve~ge, about 44%, were of the same seem­ Lillie Brown, Boston. · ingly trivial and spiteful nature ~s those encountered by the city police VMcDowcll, C. P., and Hibler, N. S. (1987). False allegations. In Hazelwood,-R. R. and Burges.~ • agency. Only one complainant fe)l into the attention/sympathy category. . A. W. (eds.), Practical Aspects of Rape Investigation, Elsevier. New York. Newsweek. (May 16, 1983). Burying crime in Chicago. These unanticipated but supportiv,e parallel findings on university popula­ O'Reilly, H.J. (1984). Crisis intervention with victims of forcible rape: A police perspective.· tions suggest tllat the complicatioµs and conflicts of heterosexual involve­ In Hopkins, J. (ed.), Perspectives on Rape and Sexual Assault, Harper and Row, London, pp. 89-103. . I ments are independent of educati6nal level. In fact, we found nothing sub­ Payton, G. T. (1967). Patrol Procedures, Legal Book, Los Angeles. stantially different here from tho~e cases encountered by our city police Pepinsky, H .. E., and P. Jesilow {1984). Myths that Cause Crime, Seven Locks Press, Cabin agency. John, MD. - Russell, D. E. H_ (1984). Sexual Exploilation, Sage, Beverly Hills. .Kanln Archives of Sexual Behavior, Vol 23, No. 1, 1994 92 i/Schiff, A: (1969). Statistical features of rape. J. Forensic Sci; 14: 102-110. Schiff, A. (1971, October). Rape needs a special c.xamfoalion. Emergency Med., pp. 28-29. Sherwin, R. V. (1973). Commentary. Med. Aspects Hum. Su. 7: 193. Smith, T. L (1953-i954). Competency of female child as prosecutrix in case of sexual offenses. Ala. Law Rev. 6: 96-99. I , . Weihofen, H. (1959). Compensation for victims of criminal•violence. J. Public Law 8: 209-218. Wigmore, J. (1940). Evidmce in Trials al Corilmon Law, Little Brown, Boston. Wilson, P. R. (1978). The Olh_er Side of Rape, University of Queensland Press, St. Lucia, Queensland, Australia. iI . --

1 Men Pressured and Forced Into Sexual Experience I Cindy Struckman-Johnson, Ph.D.1 and David Struckman-Johnson, Ph.D.1

A predominantly heterosexual sample of 204-college men were asked to report incidents of pressured or forced sexual touch or jntercourse since age 16. About I 34% indicated they had received- coercive sexual contact: 24% from women, 4% from men, and 6% from both sexes. Contact in-Valved only sexual touching \ for 12% and intercourse for 22%. Sexual contact was pressured in 88% of the 81 reported incidents by tactics of persuasion, intoxication, threat of love I withdrawal, and bribery. In 12% of tlze incidents, sexµal contact was forced through physical restraint, physical intimidation, threat of harm, or hann. Contact was _initiated by an acquaintance or intimate in 77% of incid_ents. The negative emotional impact of male contact was rated significantly higher I than the impact of female co'!tact. Men with and without coercion experience I did not differ, however, for scale scores on sexual esteem, deRression., and I preoccupation. Interviews with JO subjects· revealed complex reactions to coercive male and female contact, including doubts about one's sexuality, resentment of unexpected or forceful contact, -and fear of telling otjzers abo_ut the event. · · \ KEY \VO RDS: sexual coercion of men; pressured sex;' forced sex; unw;mted sex; rape. i I INTRODUCTION I According to a small body (!f research conducted in recent years, a substantial nu.mber of nonincarcerated adult American men are pressured or forced into sexual encounters. The evidence suggests that men experi­ ence unwanted sexual contact from male and female acquaintances and strangers by means that range from strong verbal pressure to violent force (Struckman-Johnson, 1991).

1Dcpartment of Psychology, University of South Dakota,' 4·14 Ea~l Clark Street, Vermillion, South Dakota 57069.

93 ------· I r i

. : I,. SPECIAL ARTICLE· ~ . I false Stntements .and the·Differential. Diagnosis of Abuse Aileg~tions I I WILLIAM BERNET. M.D. I Abs!rDCl. Qb1ec11ve: Because'Child ps;,ch1a1rim do not have a con~1~1en11vay 10 classiry the untruthrul child I ilr.d bcouse t·hcre arc no g~ncrally accepted defin11ion.~ or the rnilny way5 in u.;h,ch raise s1a1cmen1~ occur in illicea1,ons or abuse, th: objective or 1his paper is to clas:.,ry ilnd define lhe ~arious wavs in which raise statements ,;i,:c:r 1n a!J:gilt1onr. or abuse. Met hod: The au1hor rev,ewed 40 anrcles. chap1er.~. and bO::,ks that con1ained ex amplcs or (alse ,;1a1em~n1s milde by children or caregiver.~ 1n the con1ex1 or on abu~e allega11on. Re~ults: This paper clnriries 1h~ co11c::p1~ or 1ndo.:1rinnt1on. sugges11on. fantasy. deluiion. mismterpre1a11on. m1scommunica1ion. inl)OCl:nt lying. del1!Y!r;;:c lying. coniabula1ion, pseudologia pha~1as1ica.'overs1imula1Jon, group cqntagion. and perpe1ra1or suostitu- · 1,on. Conc:l•J,1011: The correct classirica1Jon or abuse allcgn1ion.~ is imponan1 in bo1h clinicJI and forensic child · psych1a1ry:-=rhedefir.i1ions in lhis paper: which are based on clinical 'o'perience, should .b'e ,s1udicd 1hrough · s:1·s1cr.:a1i.: re~eJrch. J Am. Arad. Child Adolesc. Psvrhiarn·. J99J. J2, 5.90J-9 IO. Kev Words: child abu$e. s~.~ual .at>•J:,c. r:;:sc ~Jkga1ionr,. lying, confobulation. pseudolog1a'_phan1as1ica. '

{., Child f)Sychiatns1's frequently are asked 10 evalua1e chil­ to re1rac1 her sta1ements (Sgroi, 1982 )·. and the · 'child sexual "'$dren wh'o mny h3\'e. been physic·ally or sexually abused. T.he abuse aq:ommoda1ion syndrome,'· which· er.plained 1he ~: purp~1se of the. e.valua!'ion may be clinical. 10 de1ermine compiex reasons Jhill rno1iva1e young girls lo deny !he inces1 ~·r· wheth:r lhe child has an emo1ional disor.dennd lhe reason !hey had expetienced-(Summ1r, 19.83). · · Pi:'.t, for it. t1r forensic 10 :i·id in !he de1errnina1ion of whether · S0rne1imes children make false allegations. Case exam­ R'· lbu::.e 0-::curred ,:ind who did it. An imponan! aspec1 of bo!h ples have been described cy_ Benedek ti nd Schetky ( I 985 ): ! · · the:. r.iinicr.d and the forensic evalua1io.n of these children is . Clawar and Rivlin (1991); Everson and Boar.( 1939): tJreen , ihe 2ssessr.:en1 oi the credibiii1y of.the child .. ( l 986); Goodwin et al. ( 1978, J 980): Kaplan and Kaplan ( 1981 ); Perers ( 1976): Schetky' and Green ( 1988): Schuman Re~·iew of the Literature ( 1986, 1987): and Yares and Mus:1 ( 1988). Several of the· F,:rd e1- al. ( J 98~-) reviewed the general topic of lying examples or' false allegations use'd° in this paper were iaken an'd indica1::d !r.~I lying has many determina·ms, including · from !hese anicles and chap1ers. Mikkelst-,n e! al. ( 1992) .. de·1elo;:imental, bic,k>gical. social, and psychodynamic. Cha- proposed four specific sub1ypes of false all!!ga.1ions of se.xual .goya and Schkolne ( 1986) ,-published a literature review re- ·.·abuse: those arising out of cust(">(j~v djsou:es: those s1crnrnlng garding children who· lie and addressed psychoanalytic from accu·sers' psychological disrurbarices: those resulting conce·pts. ceveloprnen1;1I concepts, and parent/child interac- from co_nscious manipula1ion:· and those cau.o.ed by iatro- ·tion .concepls. Ekman ( 1989) discussed the ways in. which genie :l"rn°ntr -- . child.en lie and iheir motivations. The developmental issues, Myers el al. ( 1989) reviewed the role of ex pen testim!)ny su'"h as the child's grndurJ.I :appreciation of truthfulness. have in child sexual abuse litiga1ion. Several authors have sug., be-~n a•.!d,e.s;cd b)' C,:,;dt,.;:.;g ( l 97J ), f'l;;g.;:.1 (; %5). ai',d !!,C$(cu di11i..:al guiJclines for il.S~C:~~ing t:,c: ·~11iiu':i 1..I c::li!Ji)- Quinn ( 1988). 1 , ity, including Benedek and Schetky ( 1987a, l 9871:i): Cl a war Childre:1 may make false slatements in psychiatric evafua- and Rivlin ( 1991 ); de Young ( 1986): Garijner ( 1992); Jones 1i6n.s. Sometimes children mak1: false .denials regarding and McGraw (!987); Nurcombe (19%): Nurcombe and Un-_ :;bu:;e: The ·clissic descrip'tions of false denial of abuse in-· Utzer ( 1991 ): Quinn ( 1986, I 992); s·checky and Gr~en. _ ciL:d::: the secrecy associa1ed with incest (Rush, 1.980); the (1988);.and Tm (1986). The.American .ti.c:iderny .of Child · · iupp-res:iiori--pnase;' • \1ihen. the -family-pressures the-child--and 'AdolescentPsychiatry _(I 9__9Q) p~~lished guidelines for the i::valua1ion of abl,!se. The Academy guidcliries saicrth:ar-.------"-----7-- ' 'the possibili1y of false allegations needs ro be considered, .i An-l!pt<.'d March 16. 199). part'icuiarly if allegalions· are corning ·from the paren! rather • Dr. Orrm•r i.1 Medirnl Director. Vanderbilt Child ond Adole.icenr than the child. if parents ,are engaged in a dispu(e ·over /: ··:: · P:yrh1a1, ir. Hosp11ai. Nash,·ill.e. TN. and A.w1ciate Clinical Pmfess11r, CUS!Ody or, visi1a1ion, and/or if the child is a preschoole'r." Depar/ml(~t uf Ps1cl11/l/r\', \'anderbi/1 Univrr.iiry The u:11h11,' th,,'11(1 Ba·,,.. Nurmmbe, M.D .. and \Vil/111m Km111•r, There is a di:.agreement on how to conduc1 and what Jo M. D.. /or ,•1.:in,:• hrlp/11/ su,~~e.rrionJ. Thi.i in1per ,w1s pr,.w11ed u1 the cqnclude from,.ev;luorions of children who ma:)' hav~ been annual mrt'tinr, of rhe Ameriran. Arademy of Child and A!inle.!C'rtll abused: for e;,;ample, Green's aniclc ( 1986) was criticized r's,Ychiarry. Orwba 20-25. / 992. Wa.rhin~IC/n. D. C. by Corwin et al. ( i 987). Homer et al. ( 1992) described fitpr(111 req11esrs 111 Dr. Be'r11er. 1601 Twenty• TfJird A~enue S1111rh. how mental health clinicians arrived .ill differen! conclusions Naslrviik Tri J?Z 12 · · 0390,8567/9J/J205--090JS0:J.00/0(91.993 b)' the Ame11can Acad, regarding lhe probabili1y that sexual abuse had occurred. :my, or Child Jr.d Adole,cc~t Psychia1ry. after hearing 1he :-ame case prcsen1a11on.- ·

J. A '11. A cad. Child ,:,.t1,,ic.H· P.n·rhintry. J'l:5. Sefltrmhu 199,1 90]

------~-- -~--- --~---- OERNET

Severn! res~Llrch studies have e;,r.;:imincd the suggr.:~11bif11y °TJIJ~ p~pcr will clarify ihe ,concepts or. 1nd0c1rina1ion· of children. for e~ample. Cohen and Harnick ( 1980) com· .,uggestion. fantasy. delusion. mi'sin1erpretat1on. rniscommu-· pared how well younger children (grade J). older children n1c:J1Joti. 1nnocen1 lying, deli.berate lying. confabulation (grade 6), and college students remembered the events in a pseudologia phan1as1ica. overs1i'niulatioci. group contagion: 'i film and how resistanl they were . .lo suggestive ques1ions. ;:ind perpetrator substitution (fable I'). By improving our They (ound. that the younger children were less accur.ate in 1erm1n0Jogy. we will be able to consider the di'ffereniial their memory and much more likely to be innuenced by ·diagnosis 9f allegations of abuse. Once we agree on wh~t­ misleading suggestions. Goodman and Reed ( 1986) corn- lo look for. it should be possible 10 design more reliable . pared ho\ii 'weir very young children (J year 0l~s). young methods for conduci.ing 1hese evaluations. One pariicular children (6 year ol.ds). ;ind adults recalled their interaction form of false allegation (seen in children-who mariifes1 pseu·. I w'ith an unfamiliar adull and how well they resisted sugges­ dologia phantastica) has no1 been described in the recent tive questionirig. They fo1:Jnd that the very young chilc!ren psychiairic literature. This paper ini:ludes three examples of were Jess accurate on answering objec;tive questions and false allegations ihal appear to illustra·te the phenomenon of were more likely to be misled by suggestive questions. They . pseudologia phantastica. . also found that on free recall the number or correct recollec- . tions increased '.-"i[h age. Johnson and Foley ( ! 9'84) found Oi/Teren ti al Diagnosis of Ab use Allega lions that young children (less than _age 8) had ,more difficulty The following possibilities should be con~ider.ed when a than did older children and adults in distinguishing between child is brough1 for psychi'atric evaluation and allegations imagined events and those that actually occurred. Surveys of sexual or physical abuse have been rr:,ade: of the· research in this area were published in ·books edited by Ceci el al. ( 1987) and by Doris ( 1991 ). , I.· The A//~galion Is True Terr (1990, 1991) slUdied the ·memories ·and credibility The child and the parent may ;be accurate and truthful. of children in the context of an elaborace, naturalistic experi­ This is usually the case, perhaps. 90% of the time (Cantwell, ment. She found that the children of Chowchilla were able · 1981 ), tO give Vl!,r)' CO!Tlp]ete 8CCOUntS and ha~ Very vivid memories for decails of the.mass kidnappii;ig. However, ,some of them 2. Paren1al Miiinterpre1a1ion and SuggesliQn · described mis perceptions in the . fonn of visual illusions, which Terr thought occurred in "single-blow traumas". as · The parent may be anxious, fearful, and histrionic. The opposed to ·repeated trauma. · parent has taken an innocent remark or neutral piece of Raskin and Steller ( ! 989) have _suggested a "comprehen­ behavior. inflated it into something worse, arid inadven:entl sive methodology" for evaluating the credibility o'f allega­ induced the child to endorse 1s or er mte relation. tions of sexual abuse, which i_nvolves polygraph Yates and. Musty (1988) descn e a divorced tam, y examinat.ions of the accused and a statement analysis of in which the mother suspected that the father sexually the child's allegation. The content analysis ·of the child's abused their 2-year-old daughter. Protective serv:ices in, stnternent requires a lengthy narrative collected by a'skillful ve.stigated and detennined that abuse had 110·1 occurre,d: i'nterviewer, which is then analyzed' by specific ·criteria. Raskin and Esplin (1991) described an experime~t in whlch · TABLE I. Mechanisms by which False Stau:ml!nlS. Occur _May Be criteria-based content analysis of children's descriptions of Orga~ized in Sevaal Ways.. One Way Divides sex.uai'.-abuse was used.to distinguish true from false state- Them in1a Thra Groups ments. · --,,,------I. '111e false statement arises in Ul!= mind of~ parent or other a&:!:.:: Although these authors have generally held thai ·most and is imposed on the mind of'the child. children who allege abuse are being truthful, they probal;>ly. .· Parcnlll! misintcrp.rdt.ation and suggestion · would agree that false allegations or abuse sometimes occur. lvlisinlerprcted physical condition

For exa.mple, the child's confusion of fantasy with reality, Parental delusion · · ·I,. indoctririation by a malicious or a disturbed p·arent, and parental indoctrination __ suggestiQD._qLev~n coercion by a previous interyiewer. ' Interviewer suggc:~tion ~i ------·------= ··-··------~------·-- Overstimulation ------~---Group··-- --- ·-contagion--- •·-. - . ------.,------~. . ------•---- _ The Cu,rrenl Problem 2.' The false sia1emen1 is cau.s<:d ·primarily by p,ental mechanisms in There are guidelines for distinguishing the truthful from the child that arc no1 conscious or not purpose(ul. Fantasy· the untruthful child, but child psychiatrists do not have a ~' Delusion •, consistent way to understand and classify the untruthful Misinterpretation child. Unfonunately: there are no generally accepted defini- Miscommunication ti.ons oflhe m·any ways in which false ..slatements occur. One .. Confabulation ·· . clinician's "fantasy" is another's "miscommunication," '. J. The fal~ stalcmcnt is caused primarily by l')'lCntal mechanisms 'in a_nd what is "confabulation" 10 one is ''pathological lying" the child which arc usually considered conscious and purposeful. to another. To evaluate these children in a systematic and Pscudologia phnnias1ica reliable manner. we must clarify and categorize 1he .ways 'in Innoccnt lying which children make false stalemerits. Dclib<:ra(c lying

904 J. Am. A cad. Child A.dole-Jr l'svcl110;0,: J2:5. SeptembN /99}

------~~- ·------~-- l,\ISI :S'l,\ll,MI '•I'> ,\NII ,;lill\l ,\I I.I \,/\.ll()N,,

,\Iler c:1L'h v,s11.1111111 "11h 1h,• ILJih-:r 1hc mo1hc1 l'Olllllllll'il () /111,·n·"'"'l'f S11gge.r1iorr lCl 111 ~pec:1 the !,!111',.,µL'l111:il ~rcu. ~nd she qu-:,111,nctJ hi:r uboUI ;cxu:.il :1t,u,,· Tht: m111.hcr t()l)k ill~ l'h.ild to :1 1her.:1- Prc.VllH1~ 1n1crvicwers muy have 111advcrtcn1 ly .~·on1om1- or pist becuu.<.e ~hi.! W:.J~ uf'r:11u or men. Ai'1er ;plan_o- she would spin her again i( the girl said wha1 her father ;~:t had done .. The girl said her father .touched her pri.va1e .. ~.. uon · :'.·.t~ · Roben: who.was 8 years old, was lhe child of divorced pons. ;'~f parents. He lived with his mother and spent long sumn:er· The five processes 1ha1 have been described involve an ;:, ·· vacations with his father. Robe.n's mo1her brough1 him outside person innu~ncing 1he chiJd,or the silUotion.in Some ir.': for· a· p;ychjairic evalua1ion. because she though1 tha1 he way. The nex1 four processes are menial mechanisms that , had been physically and perhaps sexually abused by his, take place in 1he mind of the child. '·. fath'er .during the summer visitation. She had inspec1ed .uq . '.·'. Roben thoroughly on his return and found marks on his 7. Fanrasy l ~·~ . ::. back, which she too.k to be cigarelte burns. and also super· The child may have confused fantasy ""..ith reali1y. This i; '.., ficial scratches which extended from his umbilicus almos1 more likely io occur.with younger children. For instance, a : to his pubis. which she though! indicat~d se;wal abuse. child in a day care cen1er may be told that anbth,er child has .': She. had Roben pose nude sci 1hat sh.e could pho1ograph been sexually abused. At that point, the. child may confuse .1, the· marks. On investigat_ion,' the "cig.arette burns" were whal happened to the other child with w.ha'l,:happened to ·:; found to be infected mosquito bites and the llbdominal himself or herself. Oedipal fantasies as an- ex·p'lanation for : scratches were the result of body surfing a1 Mynle Beach, reports of incest were suggested by Rosenfeid et al.,( 1979). ·.,•l Nonh Carolina. They explored some of the complex difficulties facing clini, ' Parental Delusion cians trying 10 assess whet~er a patienl's repon o( incest is· fantasy or reali1y. :..The parent is a severely disturbed, paranoid person. He ' ,\ or she has actively shared a distorted world view wi.th the . . I I '· 0\ 'bi!d who now shares the same.delusion. The parent and 8. Defu.~ion O,.J> . . hild may share ·a Jolie. a deui or the child may simply give Ai though rare, delusions about sexual activi1ies may ·oc- , and agree with the delusion.al parent who persistently cur in old,r children and adolescents in the context of a · ists that abuse occurred. psycholic illness. · · ··r" Green,( 1986) described a 9-year-old girl whose mother Jenny, age 15. was a:d.mitted to a psychiatric inpatient ·believed th.at her ex-husband had been molesting the child program in an acute psychotic condition. She was disorga- 1since infan·cy. The girl had reluctanJly stated chat her · nized, paranoid, frightened, and reluctant· to talk or eat. ;father had. ru&bed .against her in bed. The girl later said · The family knew that I ye~ previously Jenny had been .thai h-=r disclosure·was· not true,. but she'had perpetualed touctied inappropriate/}" by an older male cousin and they ,the false allegation 10 pleas~ her mother and gairi respite' commented· that Jenny had seen chat cousin at a recent :rrom the mother's relentless interrogations. On ·evalua- fami'ly, gathering: During the days that she was clearly tion, the mother was thought 10 be delusional about the psychotic, Jenny stated several times that the cousin had ::.' girl's relationship with her father. · raped her. After tl)e psychosis cleared Jenny explained ; P_a~~ntal ln1oc~~i~_a!io_n______. ;~:: ~~ r~;s~:dh~c~~;;red to kiss and fondle her but / The parent fabri.cated tlie allegation and-inslructed)he--·-·----- ·-·--- ..... --· --- -- ' ·------···------:child in what to say. 9. Misinrerprera1ion .... ~- Clawar and Rivlin ( 1991) have presen1ed many exam- ./ pies of' 'programming" of children, especiiilly in CliSlody A misin1erpretation may also ~ause .a false belief, but ii disputes: In one case (pp. 53-55) a 1'2-year-old girl falsely is derived from1omething 1hat actually happened in t.he first les1ified in coun 1ha1 her father made· her 10uch his penis place. A young child with a misin1erpre1a1ion may say that and what he did to her'when he climbed inio her bed a1 1wo people were fighting. when aclually they were having, night. That girl's false statemen1s resulted panly' fror.n her · $exual intercourse. An.early adolescent boy li;ith a height· mother's indoctrination and partly from her own· seJf. ened concern abou1 sexuali1y may misint~rpre1 a pal on lhe . -;: . se.rving lies. · · · back as a sexual caress .

l.Am,Ac-ad. Chiid Ado/esc. Ps~rliia1ry.J2:5,.Sep1m1her 199./ 905 ··,·al . . . . .L. • ------·------'------. r··.,

/0. Mtscommuntc U//011 sr,ck 1nht:r r~t·1um. Th.ii ~tn1erncn1 .w~, 1110~1 pr,1bubly an e.xompfe of con/'~bulo11on A (alse allcga1ion of abuse may arise ou1 o( a ~1mplc verbal misunderstanding. The· c,hild may misunders1nnd an 12. Pseudologia PhantnS1icn · a dull 's. quescion: 1he aduf1 may misin1erpre1 or lake 1he child's s1a1ement our of conte;,;1. Called fantasy lying and pachologicaJ lying, pseudologia phancascic.a has been delined.as "1elling stories wirhout dis­ Ya1es and Musry ( 1988) have desc~ibed che case of o cer.nibfe or adequare J1'10li ve and with such zeal thar· the 5-year-old girl. whose mocher quescioned her about sexual subject may become convinced of.their truch." (Campbel), abuse by ine father. The·child apparenil)' nodded a(lirma,­ 1989. p. 569) In some ,ca~l!s, however. closer· invescigation cively when her rnocher asked, "Does he try to make ,love may reveal the underlying morive forrhe pseudologia (Gera- to you?" As a resulr of rhese questions, .the girl ~as cioci er aJ., J 987). · creaced (or sexual abuse for several monihs. Subsequenc · . Pseudologia phantastioa is an old tenn coined by a Ger­ psychiacric·evaiuacion decermin.ed that the girl had simply man psychiatrist named 'Delbrock ( I 89 l i'. In adult psychia­ meant. thac she and her father. liked each 'other a )01. . cry. rhe tenn pseudologia phantasrica was.used Kraepelin The nex1 rwo processes. confabulation and pseudologia by ( I 907. pp. 526-53 I) and Bleuler ( 1924. p. I 08). Pseudo logia phantastica, are also rnenral ri,echanisms thac occur 1n rhe· has been described in adu)cs who were sociopachic. who had mind o(·rhe chl!d. Ar times rhey may 'be confused because Munchausen syndrome, and who had an organic mental· chey both may involve. distorcions or the child's memory .. disorder. Kohut (1966) explained pseudologia in terms of narcissism, in ihac ic involves. the pathological, overexpan­ I/. Confabu/a,ion siveness of the grandiose self. This term has been defined as "the act of replacing mem· .· J'n child psychiacry, the concept of pachological l)•ing was 0 ory Jo.ss by fan

11 ,tl 11 blew up, lhJI he h1111~el'f ~uw 11 blow up .. lhJI one drama11c \lor1c.:~ ·wen! far beyond whal acrually happened ~,oy·s n101hcr tl1ed and rhe boy ,ruck his penis 1n her bloou :ind he did nor 1h1n~ 1ha1 1he (arher and'brother engaged ,ind 1ha1 Charlie saw him db 11: 1h01 ~norher boy s1uck J 1n 1nces1 He c~u11oried 1ha1 "1he girl's.first story was so pencil 1hrough h1., penis from one side to rhe orher: thar well told 1ha1 many had been irrevocably convinced of he saw a woman s11 on a roller when the seat wJs up and the u11er guilr o( _the father.·' . he saw her sir r1gh1 in the poopoo: that he cou'ld pitJ.: up The next 1wo processes involve lying. Children lie in 3 heavy chair wi1h one finger; thar there were six children ·.~evcra/ ·ways. Anna Freud ( 1965. p. I 15) defined three forms in ·,he interviewer's orrice bathroom who were all playing ot de·ception b.y distinguishing between innocent lying. weewee·games: and that there was a boy in the office patho!ogical lying, and delinqu~nt lying. Kerns ( 1987) bathroom who was dressed like a clown w11h' a white face clearly distinguished between lying. pathological lying, de­ and a _§reen nose arid a hat. · · · lusion. and confabulation .. The topic of lying PY children and It was my imp~ess'i9n that Charlie had been sexually Stirn- . adolescents has been a_ddressed by Chagoya and s·chkolne ula·ted in some way, but most ofwhar he·said was a fantasy ( 1986), Ekman ( 1989), S. Freud ( 1.913), and Goldberg lie. Some of Charlie's statemenrs are similar 10 what orheJ ( 1973). authors have described·. Thar is. pulling the penis in the blood sounds like a satanic ritual, an9 the clown costume I J . ./nnocen/ Lying sounds like the cases where children said that sexual perpe­ Young children. especially around the age of 4 to 5 years. trJtors dressed up in canoon outfits. Perhaps those children •:, frequently make false statements because that seems to be were also engaging in pseudology. the best way to handle the situation they are in. Gesell and .A. review of the recenl psychiatric literature did nor reveal Ilg (1946) said that a .normal 4 year old "tells tall tales.'' any case· in which pseudo!ogia phantasrica v;.as said 10 be To illustrate this phenomenon, Goldberg ( 1973) described the basis of a false statement of sexual abuse. T~ere have how a 3-year-old boy announced to his mother that he had fx:en published cases which sound like,pseudologia phantas­ just spoken 10 the doctor. who said that the boy was not to tica. but the authors did not identify them as such .. eat any vegetables. When the mother said she would call Yates and. Musty ( 198.8) described a _boy named Carl, che doctor herself to find out for sure, the boy added that· age 5 years, who told very elaborate stories about se:i:ual the doctor had just died. . abuse, which several psychiatrists and psychologists ·re.­ · Derdeyn et al. ( 1992) reponed !!h incidenkof innocent portedly did not believe. Caci was an impulsive,boy who lying which lep to an allegation of se:i:ual.abuse. Justin, engaged in genital e:i:hibitionism, lying, and manipulation. age 4, was touching a doll lo his penis and ma.kin·g a He "enjoyed talking about molestation." Carl reported kissing sound, which was observed by his mother. His to pro.tective services that his mother hit him with her fist, mother asked Justin. "Who does that co you?" and the kicked him, pinched his private parts, and "bit my penis boy answered one word, ''Daddy." In evalua1ing the case,·. so hard that I peed in her mouth.'_' When Carl was in a· the authors determined thac there was connict between foster home, he accused his ther-apist of molesting him, the parents, who were divorced. ·The boy was probably and he claimed that his she·l1er care. father ..,.,aJked around engaging in "innocent lying" .lo denect his mother's with his pants down. . anger from himself to the father. Jn the older literature, howeve.r, Healy and Healy ( l 915) fn the future; there will probably be more examples of related severa:J examples of false allegations o~ sexual abuse innocent ly.ing as the basis for an allegation of abuse. The that were attributed to pseudologia phantastica. William reason is that children are ·taught about sexual abus·e (" good Healy,.the early proponent o( the juvenile court clinic in touching" ~nd "bad touching''.), and parents are aware of the Uriited States, thought that pathological lying was a the possibilit'y of se;ual abuse and are likely to ask children phenornenon distinct from ordinary delinq~ent lying. He about their experiences. in some cas~s. a nonabused child . ported that pathological lying occurred in approximatc:ly will report that he or she had been abused without realizing. ~. % of delinquents and th~J "pathological false accusations" the impo'rtance of the deception. curred in approximately o:5% of cases. ,· . For example, Healy reported how Bessie, a 9-year-old /4. Deliberate lying girl, accused her father and .brother of incest. Bessie had · This refers 10 the self-serving, intentional fabrications that lived in several households and had been ·w.ith her father • are common among children and adolescents. Older children for' only 6 months. Bessie had a'dramatic manner a11d said - - may fully understand the .moral issues involved but choose to that s~e had caught "an' awful disease" from her father. avoid or diston the trutli for revenge or personal advantage.\ She said that sexual relations with her father arid brother Wanda, a.14-year-old girl, became pregnant and was occurred every night. Bessie also described numerous very much -afraid of th.e repercussions from her parents. If: other sexual activit.ies staning at age 5: She said that Aiming to shield her relationship with her 18-year-old ', ·.·..~; . she had engaged in a variety of activiti.es, from self- boyfr.iend, s.he accused her stepfather of molesting her. stimulation to normal intercourse. She .said \hat her sexual Her accusat,ion served the double purp9se of prot~cting .ei;periences involved a number. of .boys· and girls and her bo_yfriend ~nd embarrassing the stepfather. the men in two households where she had lived. After. . . evaluating this case: .Healy 1hought that the girl "had The last three processes described in this paper, over- many sexual expe'.iences.'' But he co~cluded that her stimulation, group cont~gion, and perpetrator substitution,

1. Am. A cad. Child Adolesc P.,ych,01,y. )2:5. Sep1rmb" 199) 907 l." llf.RNET

may also be lhe underlying c.:xpl,111:.i'110n for ,1 l:11:,e all-ego11on 1., u cuflurally eccenrr1c·erroneous belie( 1ha1 res1s1s rnod111, or sexual abuse. calion and reaJ,11y testing. ; 15. Oversrimularion C11q(ubula11011 versus Pseudolo_giu Phan1as1fr:a I ! Schetky and Green ( 1988) haye eloquently d'escribed how · These menial mechanisms may be distinguished in several some paren1ing prac1ices, such as genital touching and nu­ ways. (I) The social context is differen,c. Confabula1ion is dity. can re.suit in chr?nic sexual oversrimula~ion. Th7 pa.r­ ·evo.ked by questions raised by another perso_n. Pseudologia ent's seduc1ive behavior. though not necessarily abusive 1n phanrascica is created 10 impress or influence O!hers. (2) icself: becomes more problematic iil 1he con1ext of parenrnJ The form of the statemenc is differenc. Confabulation is a ,; · sep~ra!ion and divbtci:. For examp,le, an otherwise reason­ relacivi!y .brief statement in answer to a specific question, J. I able moiher may overreacl 10 a mildly seductive fa1her­ ·'when· the person h·as no real, memory fo~ the answer, In -1 daugh1er rela1ionship by alleging se:d.Jal abuse. pseudologia phancastica, lengthy, complex stories go far be­ 1 /6. Group Coniogion · yond !he quesiion raised and are delivered with zesc and an engaging manner. (3) Con.fabula1ion and pseudologia differ The parent and.child rn11y be vic1ims of epidemic hysteria. in che way the person responds when confronted with contra-· 'in which rumors take on a life of cheir own. and frightened dietary evidence: the·confabulator scicks 10 his or her s'tory, people mo9ify what. 1hey ha_ve hear~ i.n a way consistent . whereas in pseudologia the·pe_rsoo drops the story and moves with their own emouonal needs. As II 1s reio·ld, the rumor on to another one. be.comes more a.nd more· convincing. The sociological and psychological explanations of hysterical contagion were re­ Confabulorion versus Misinterpre101fon viewed by Gehlen ( 1977). ·11 was her view that hysterical A misinterpretation may cause· a false belief, bu1 ic is con1agicin is a type of c:'raze. in which the participants share derived from someth.ing that actually happened in 1he firsr 1he e.,pectation "that exhibiting ce0ain behaviors will enti­ place. A child with a ·misinterpretation may -say thac two tle one to the secondary gains or the sick role.'' Kenner people were figliring. when actually (hey were having sexual ( J 988) has suggesced. thal hysierical c~,n,iagion was che ex­ intercourse. A confabulating child may say char two people pla(1atio0 for one instance of se.wa( abuse allegations in­ were fighting, when actually_ they were ha:ving an unrernark­ voJ.ving a day care center. ·abi'e ·conversation. /7, Perpe1ra1or Substr'turion .Confapu/arion versus De/iberpte Lying One of the vexing aspects' or chese evaluations is tha1 · The child who is lying. knows it and intends to deceive. • the child .actually may have been sexually abused (so is The confabulator ·does not realize what he or she is doing. manifesting symptoms con.sistenc with ~buse) but is iden~i-. fying the wrong person as the perperrat~r (making a: f~lse Puudologia Pha.nrasrica versus Deliberate lying . allegation). This is not a simple problem, ,n !hat the substHu­ le r11ay be hard to di·stinguish these two phenomena with .. tion may be the result of several or che mechanisms already ,QUI understanding the subject's m_otivation. The delinque'.11 described. It could be. based on fantasy, since the ?,bused liar intends to deceive and knows exactly what he or she is child may .confuse an abusive.uncle for the· facher because 0 doing:l-n pse~dologia phantascica, the fabulist, intehding ro .- . of Oedipal wishes and the fa1he(s nirtations . .A ·psychotic enhance an interper:sonal relationship or innuence ano0er ! youngster who was abused by one person may develop a person, does so by embellishing sto,:ies and may be so In· · delusion in'vo)ving a differenl person .. Through confabula­ .a volved in the deception that he-~r she comes to believe it. ~ . tion or pseudologia phantastica, :in abused child may indi­ cate the.wrong person as the perpetraior. And, of course, a . · · ·Di.sc~ion. · · ,~ · child may simply be lying about (he identity of the perpetra- . The. differential diagn~sis and the distinctions raised. in 1'. tor. this article are impi;u'tant for several reasons. There has been Dis~ingi.lishing Forms of Falsj{jcation .c.onsiderable research into the distinction between the truth- ·. · · . . . . , , ful and ·the uncruth'ful child. There nas beeh l,ittle attempt to : · · . - )nte,:rater rel1ao!l1ty would be higher if we usled che same identify the narure of the untruthfuiness. In other words., in 1;"i1. defjnl't'10·n···s ·AJ1houg·h these-concepcs may over ap 10 some · r d . • • ' • · ··, •0--·----.•. -· ··--addition t9 developing an accurate thermometer or e- : exienc, II should be possible most of the lime to ma1nta1n . f b ;·1 -. ·-d··· .... ·1·· . ld be useful 10 identify · · ' · ,. d ' h' . 'll De I ' (ecllng e rJ e con 1t1ons, I wou . . ... · ,. d1st11:ict10.ns: Th: c?ncepts ,s1e in. c ,s pa,per w1 c arr- and classify the causes of fever. Child psychiatrists nee.. d a . fied by d1strngu1sh1J?g them fr~m each oiher. reliable (Tl~lhod of evalua1ing and classifying children who . : fonrasy and. Defu_sion v,ersus Conff!bu(ation have made ~llegalions of a~use. . : . f and Pseudologio Phan1asrica Some authors have confused 1he discussion by s1mplJSi1· • The fonner occur· wichrn · a person , s min· d. w h en a 1one. ·calJy' asserting tha(_young children ·c10 no( Jie when asked •l

. whereas the lacter involve 1ransaclions with ocher people., ;.about sexual abuse·. Authors who have addressed the issue J,:, .of. fofse allegations usually have no1 considered che fa lsinca- Fan/Qsy versus Delusion cions 1ha1 may be created· almost spontaneously by s~me / A fantasy is a mental' image that the person knows does ~hildren. such as pseudologia phantastica µnd confabu,Iaoo~. , nol represenc reali1y and_ch.a1 is easily suppresseG.i. A delu_sion I! is possible rha1 some of ihe sra1emen1s actri~u1ed 10 sa1ani.c

908 J Am Ac~d.. Child Adnlesr.. P.11·chic11ry, . )2. 5. Sepu_mber !_99] 0 · act 1,•11ies (e g. "rifuols" 1nvolv1ng blnoLl. 1n(an11c1dc. per·.. Du,".) (I'll)/) //rr•.'i11xx1·111i1,/,1.1 11/ Chrlt/rt'll t R,·, 11//1•11111111 ;,,,,,,,. peira1ors dressing .up ,n. cos·1umcs) were ac1Unlly exn"'.lp/es · 1 ''''"'" fur t:\·,·11·11,,r,, 7,,,,,1111111,,· Wa,h1ng1on. DC /\nu.•ri<.·~n 1>,>. /. ,hulou1L'UI ""CK'IUIIOn of_pseudolog10 phan1.:is11ca. · . Ek mun. "p ( 1989), Wh,· K,rft Lit' New York: Scrihne, some clinicians mny regard 1he ashe~smenr. or o child's Evcr,on. M D &: Boal. B W J 1989). False .llcgu11on~ or ~c;uJI credibili1y 10 be an arcane process having relevance 10 foren­ abu.,c hy chdcJren and adobccn1~. J. Am. i'.rad C/11/d Acl11lr 11 sic psychialry bul having li1tle irnponance 10 routine clinical Pll't htolr'I', 28:2.10-2J5. . evaluation and psycho1herapy. The 1hernpis1 may sny. for , FcniC'hel. 0 J,19551. The econom,cs o( pseud9log1a ph.n1a~11ca· In Thr C11/lrnrd Paf1er.t, Second Series. Ed.1. H. Fcnichel & D. Rapa, instance. tha1 ii doesn'1 mailer whe1her 1he sexual abuse pon. London. Roullcdgc and Kegan Paul, p. I JJ. acrually occurred: if the child thinks ii happened. inlensive Ford. C. V., King. B H & Hollender. M. H. ( 1988). Lie., and liar, ireatmenl is requirecj'. HoV(ever. such a posi1ion can cause p,yc.h1air1c a,P<'.CI~ of prcvanca1ion. /\m. J. P.1yrhia1r;,. 145 55.:. · elaborate errors in 1he diagnosis and trea1men1 of young 562. children. The therapy of children who repon ex1ensive sex· Freud. A. ( 1965 ), Normalt1v 011d Patholo?,y in Childhood· Asu.1.rmrn1,1 11f DrPr/11[1mt111 New York: ln1erna1icinal Universi1ie.1 Press. ual abuse p,robably would be comple'1ely differen1. de· Freud:~- { 1913). Two Lies Told by Children, ·s10,ndord ed11ian, Vnl pending on whether the 1herapis1 thoughl 1he child was · I}. London: Hoeanh, 1958. relating true events or whe1her 1he child was deluded or Gardner. R. A. ( 1992). True and False Accu.10111111.1 nf Child Se, engaging in confabula1ion. pseudologia phan1as1ica. or de­ Ahu.1e. Crcssk,11. NJ: Crea1ivc Therapeutics: · · Gehlen. F. t.. ( 1977).Toward a revised 1heory of hy.11erical con1ag1on liberate fabrication. J. Heal1h Snc. Behav .. I 8:27-35. References Gmcio1i. T. D.. VanDyke. C.. Mueller. J. & Mcrrin. E. ( 1987), Th~ • J • on.~el of Munchausen's syndrome.: .. Gen. Hosp. Psvchia1ry. 9:405- J: American Academy or Child and Adolescenl P.1ychia1ry l 1990). P,,t. 40

~ir.\t Adofrscenl Se:cuol Abuse. Washing1on. DC: American Academy or H;;ryx:r. · · Child and Adolcscen1 Psychiatry. ·Goldberg. A. ( 197JJ, On 1clling 1he truth. Ado/e'Sc. P.svchiotry. 2:98- Bcnedck, E. P. & Schetky. D. H. ( 1985 ). Allcga1ion, of sc,; ual abuse I 12. :W in child cus1ody and visi1a1ion dispu1cs. In: Emer?,in?, /JJua in . Goodman, G. S .. & ·P,,ced, R. S. ( 1986),.Age differences in eyewi1ne.-,1. ·,,. ,, Child Psychia1ry and 1he law. eds: D. H. Schetky & E. P. Benedek. te.-limony. Law and Human Behavior. JO:J J7-332. ·~.1/~ .. New York: Bronncrflvlazel. Goodwin. J.. Cau1home. C. G. & 'Rada. R. T. ( 1.980), Cint1erella Benedek. E, P. & Schetky. D. H. (1987a), Problems. in valida1ing syndrome: children who ~imulatc negli:ct. Am.•.'.. Psychio,,.,.. allegations of .se,; ua I abuse. ?an I: F.iclors affec1i ng pcrcep1ion and J ,i7: 1223-'1225. recall of events. J. Am. Acad. Child Adr1/esc. PJwhia1r.·. 26:912- .Goodwin. J.. Sahd, D. & Rada. R. T. ( 1978), fnc:sl hoa,;: false accu,a- 9 I 5. · · tions. false denials. Bull. Am. Acad. Psychfo1ry· Law, 6:269,,2i6. Benedek. E. P. & Schc:tky. D. H. (1987b), Problems in validating Gre~n. A.H. (1986). True al'!d false allegations or se;r;ual abuse in allegations ofsc;r;ual abuse: Pan 2: Clinical evalua1ion. J. Am. At'i.1d. child custody disputes. J. Am. Acad. Child Psychia1r:,•. 25:4,49-456. Child Adolesc. Psychiatry. 26:916-92 i. · Healy, W. _r&, Healy. M. T: ( I 915). Pa1hologica/ Lying. Accusa1ion, BJ~uler, E. (1924)1 Te:.tbook of Psyr:hia1ry. New York: MacMillan and Swindling: A Siudy in Forensic Psycholdgy. Boston: L.ittlc. Company. , Brown. Campl:>ell. R. J. (1989). Psychioiri, DiC'lionary. 61h ed11,on. New Horner, r . /vi .. G uyer; M. J . & • KIa ter, N. 1:,-1.u ( 19r.-, • 7~). p r,; d'1ct1on. · York: O;r.ford Universi1y Press. · prevention. and clinical expenise in child custody cases in .which Can1wcll. H.B. (1981). Se;.ua/ abuse of children in Denver. 1979: allega1ions or child sexual abuse have 1:>een made. Family l.aw reviewed with implica1ions for pediatric intervention and possible . Quorierlv. 26: 141-J 70. prevention. Child Abu.se Negl .. 5:75-85. John.ion. t,.i. K. & Foley; M. A. ( 1984); Dif.fercntiating fact (rorn Ccci, S. J. (199/),·Somc overarching issues in the children'.1 suggc.ll· . fantasy: 1he reliability of children's memory. In: The Child Wilness. ibility debate. In: The Suggesiibiliry of Children's Rer:nll!C'llon.r: ed: G. S. Goodman. Journal of Social Issues, 40:JJ-50. Jmplica1ion.s far Eyewimess Tesiimqny. ed: J. Doris. Washing1on, Jone.1, D. P. H. & McGr.iw, J, M. ( J987), Reliable and fictiiious DC: American Psychological Association. . ~ccounts of s.:xuaJ abuse to children. Jou mat. of lnrerper.sonaf Vin· Ceci, S. J., Toglia, M. P. & Ross, D. F. (eds) ( 1.987), Children's ., · · Eyewitness Memory. ,:,Jew York: Springer:verlag. . 1enr:e. 2;_ 7-4 5 ·· . Chagoya. L. & Schkolne·, T. ( r 986), Children who Jic:: a review o( the Kaplan, S. L. & Kaplan. S. J. ( 1981 ), The: child's accusation or . ·~ literature. Can. J. Psychia,ry, JJ:665-669. ·'sexual abuse during a divorce and custody stroggle. Hillside J. Clin. d P.rvchia1rv. 3:8 J-95. · Clawar, S.S. & Rivlin. B. V. ( 1991 ). Chi/ rm Held lfrma~e: Dea{in/!, Ken~er, W.:D. ( I 988), Lener to the editor: the sc.\ abuse controversy. with Programmed and Brainwashed Children. Chicago, IL: Arncri·. can Bar Association. . · · J. Am. Ar:ad. Child Adolesc. Psyr:hia1ry. 27:800. Cohen, R.. L. & Hamick, M: A. ( 1980). The susceptibility o( c-hild Ke~ns. ~- L. ( 1.987), FaJ~ification in the psychiatric· his1ory: a differcn, -- wilnes.scs to suggestion. Law and Human_Be_haYl'?_r,_j_:~.01-210. . lial d1agnos1s. Ps_yr:h1a1ry, 49:13-17: . . . Corwin. D'. L .. Berliner. L .. Goodman, a.. Goodwin. J. & White;- s:--'-Kohu.1, H.-( 1966). F~rms_ ~nd transform~11ons or narms,srn. J. Am. ·c I 987), Child se;wal abuse and custody dispu1es: no easy answer~. !'.r,vchoan.a/, Assoc .. 1.4:243-272. - - · - · -·: ··-- - · ------• Jauf'7U1/ of /ntapersona/ Violence, 2:91::-105. · Kopelman, M. D. (.1987), Two types of confabula11on. J. Neur~I. q.clbrUck ( 189 J ), Die pathologische Luge und die psychi.-ch 'abnormen Neur~surf.. Psych1a1,y_. .so: I 482-1.487. . . Schwindlcr. S1uugan: Enke. ; . · Kraep<:hn. E. ( 1907). C!,nicol Psyc(11a1ry. cd· A. R. Diefendorf. New Derdcyn, A.'?., Pochailos. A. & Seigle. E. (J 992). Adeq11u1r E••t1/11t1· York: MacMillan. · tian of Oivorce·Relaud Child Soual Abuu Alleia1inn.1 P.ipcr pre· /v!ehzer, H. ( I 942), The psychological teSlirig of pa1hologiraf, li~r~ sentcd at 1he annu~I mec1ing of 1he American Acadc:my of Chilu Nrn•,1111 Child, l:Jl4-JJ4. · · and Adolescent Psychia1ry. Washing1on. DC. Oc1ober 20-25. 1992. M1Helsen. E. J.. Gutheil, .T. G. & Emen$. M. ( 1992). F.ilse se"u~I· de Young, M. ( )986). A concep1Ual model for judging the 1ru1hfulne,·~ abuse a,llega1ions by children and adolescents C'on1e1-1ual focior~ of a young child's allega11on of se"ual abuse. Am. J. Orih11fl.ll'i'/11,r, , ~~d clinic.al .1Ub1ype$. Am J. Psyc·/1111hera[1y. 46 556-570. ' 1ry. 56:550-559. · · Mym, J. E. B.. Bays .. J.. Becker. J.. Berliner. L.. Corwin. D. & Deu1sch, H. ( 1982). On 1hc pathological lie {pscudologia phun1a~11~·u J Saywit2. K. ( I 989). E,;pcn tes1imony"in child se~ua I abu.1e I it iga· J. Am. A cad. Psy,hoanal. 10:369-386. · 1ion. Nebraska Law Re,•iell', 68: 1-145. ·. · ·

J. Am. ,A, ~ad. Child, Adole.H'. P,1ychio1ry. )2:5. Sr[ltembu 19'1,1 909

------· ------STATE OF VERMONT SUPERIOR COURT

V. CRIMINAL DIVISION

I M. W. DOCKET NO. . I

MOTION TO EXCLUDE

N.OW COMES, M. W. , by and through counsel and requests that

the Court exclude evidence. In support, petitioner states:

1. On April 30, 2015, .M.W. was summoned to the principal's

office and interrogated by the Vermont State Police in the

principal's office complex. No Miranda warnings were provided.

The school had already informed the accused of a suspension for

touching a girl in her private area. In the course of the

interview, the detective conveyed to the accused that he knew

that he had committed the sex felony. Thus, the interview became

custodial and Miranda warnings wer·e required. State v. Muntean,

2010 VT 88, paragraph 28.

2. For the statement of the accused to be admissible, the

State must demonstrate that the statement was voluntary. In

State v. Badger, 141 Vt. 430, 438 (1~82), the Vermont Supreme

Court summarized the rules for admitting statements of the

accused:

To be admissible, a confession must (1) be voluntarily given,.see Hutto v. Ross·; --42 9--u. s .--28, -3 o- ( 1-97 6)-;--State v ;·------Lapham, 135 Vt. 393, 400, 377 A.2d 249, 253 (1977); (2) if elicited by custodial interrogation, be preceded by warnings of an individual's constitutional rights, Miranda v. Arizona, supra, 384 U.S. at

1

---- __,. _____ - 444~ State v. Breznick, 134 Vt. 261, 264, 356 A.2d 540, 542 (1976); and (3) not be the fruit of a prior illegality, (cites omitted).

3. Further, it is a denial,of the due process guarantees to

base a criminal conviction on the statement of the accused which

is not voluntary. This principle was set forth in State v.

Zehner, 142 Vt. 251, 253 ( 1982) :

"A criminal defendant is denied due process of law if his conviction is founded in whole or in part upon an involuntary confession regardless of its truth or falsityj and regardless of whether there is other evidence sufficient by itself to support a con­ viction." State v. Lapham, 135 Vt. 393, \ 400, 377 A.2d 249, 253 (1977) (citing Jackson v. Denno, 378 U.S. 368, 376 (1964)

4. Vermont law prohihits use of statements which are the

product of inducements, however slight. State v. Phelps, 11 Vt.

116 (1839); State v. Walker, 34 Vt~ 296 (1861); State v. Dayj 55

Vt. 510 (1883); State v. Cocklin, 109 Vt. 207 (i937). The

officer(s) provided inducements contrary to this rule and the

statement must be excluded.

5. To be voluntary, a confession must be "the, product of a

rational intellect and the unfettered exercise of free will."

------·------· ------··-· ···- ··----·-- - State v. Caron, 155 Vt. 492, 505 (1990); Malloy v. Hogan, 378

U.S. 1, 8 (1964); see also State v. Zehner, 142 Vt. 251, 253

(1982). It may not be induced by "threats, improper influence,

2

----··------· - ---~------or physical or psychological pressure." Zehner, at 253.

6. Whether a suspect's statements to police are voluntary,

is measured under the totality of the circumstances. Fare v.

Michael C., 444 U.S. 707, 725 (1979); Haynes v. Washington, 373

U.S. 503, 513 (1963); State v. Roberts, 160 Vt. 385 (1993)

These circumstances include not only the conduct of the

interrogation, but the particular characteristics of the

accused, including his or her "experience, education, background

and intelligence'' as well as the accused's capacity to

understand his or her rights, and the consequences of waiving

those rights. Fare v. Michael C., 444 U.S. 707, 725 (1979);

State v. Malinowsky, 148 Vt. 517, 522 (1987).

WHEREFORE, the Court should exclude evidence. The court

should exclude statements and all fruits thereof. State v.

Kettlewell, 149 Vt. 331, 339 (1988); Wong Sun v. U.S., 371 U.S.

471, 488 (1963).

DATED at St. Albans, Vermont this 18th day of May, 2015.

Respectfully submitted,

Steve Dunham

------,cc:-- - State-'-s-Attorney______

3

------·------· .. -----·------STATE OF VERMONT · I SUPERIOR COURT CRIMINAL DIVISION Bennington Unit Docket No. 1-t:."14 Bncr

State of Vermont

v. DECISION ON MOTION Leo Reynolds, Defendant

Factual Background The following are the findings of fact for purposes of this motion alone. On December 31, 2013, Defendant Leo Reynolds (occasionally "LR") received a phone call from Detective Anthony Silvestro (occasionally "AS") of the Bennington Police Department, asking if he would come to the station to discuss a complaint that had arisen in the neighborhood. Not knowing more about the nature of the complaint, Defendant agreed to help if the detective would come to his house instead. When the detective arrived, along with Melissa Shea from the Department of Children and Families, he was in plain clothes and did not have a weapon visible. He introd1,.1c;E;!_d himself and Ms. Shea and asked Defendant if he could record their "statement" electronically. Tr. 2. Showing some confusion about the word "statement," Defendant consented. Yet the recorder was never removed from the detective's pocket nor positioned conspicuously during the . ' interview. When Defendant asked, Detective Silvestro did not immediately answer why they were there. At hearing, Defendant testified he believed they would discuss new neighbors who had been driving excessively fast and noisily through the neighborhood. He was not informed that he was the person of interest in a criminal investigation. Instead, Detective Silvestro began the conversation by asking about Defendant's relationship with his neighbors and their children. Defendant replied that it was good. In response to questions, he agreed that the children were frequent visitors and were given "run of the house." Id. at 4. He confirmed the children's apparent report that he had a "den," filled with golf paraphernalia, and an upstairs bedroom and bathroom. Id. at 5. Defendant seemed confused but relaxed during this line of questioning. After about four minutes,-DetectiveSilvestrofinally disclosed the-general reason for______these questions; He told Defendant that the neighbors' eldest child, 2.2., had "talked about some inappropriateness that went on." Id. at 6. Defendant was audibly taken aback. Detective Silvestro gave no further details then, but asked Defendant to agree that Z.2. was "[not] the type of little girl who's going to come in and make things up, or want to get someone in trouble." Id. at 7. Only when Defendant continued to indicate no understanding of where the conversation was headed did the detective finally explain, "She talked about touching each other's privates." Id. at 8. ·

1 After this, Defendant began to make remarks that indicated he was having difficulty processing the conversation. He stammered lines like, "1-1-1 can't even relate to what you're talking about here. Do you understand? 1-1 think-my mind's like (inaudible)." Id. Yet the detective continued with his questioning. See also, e.g., 19. The substance of the detective's questions featured seven confession-driven techniques. First, it continued the "honest" and "intelligent" Z.Z. motif, so that Defendant would not feel he could suggest her account was invented. Id. at 9; see also id. at 8, 10, 11, 12, 13, 14, 21. Second, it played to Defendant's emotional connection with Z.Z. and the Bennington community, with statements like, "You're being selfish. You need to think about Z[.Z.]. You need to put her feelings before what you're feeling right now, and you need to say, you know what, I made a bad choice." Id. at 19; see also 17 (regarding Defendant's community reputation); 21 ("[l]f you have ever cared anything about that girl now is the time [to admit you harmed her]. Otherwise her life's done. It's over."). Third, the detective gave Defendant only two options: (a) admitting to an intentional touch, or (b) admitting to a mistaken or accidental touch; he foreclosed the possibility of denying any touching at all. E.g., id. at 18 ("[l]t's either you did it on purpose, or it was an accident."); 15 (similar). Fourth, Detective Silvestro minimized the seriousness of a mistaken touch and distanced or maximized the gravity of an intentional one. E.g., id. at 16 ("I think you got a little curious. You made a mistakef arid mistakes can be forgiven. But, if you're shaking your head and saying no, no, no then I've got to ... say he planned this out. He lured this little girl upstairs and he did this."); 8 (referring to the allegation as "some minor touching that occurred"). Fifth, the detective positioned himself as Defendant's ally in responding to the accusations by in.dicating he could see that Defendant was a good person who probably made a brief mistake. E.g., id. at 24 ("There are people who just . can't control themselves and do things that they-they know is [sic] wrong and they do it [sic] anyways. I don't think you're that type of person."). Sixth, Detective Silvestro portrayed his visit as Defendant's only chance to argue that anything that happened was an accident. E.g., id. at 19 ("This is your opportunity with me now. You only get one. That's it. I'm offering it to you. I didn't have to come here. I didn't have to entertain a conversation with you.") . . Seventh, and perhaps most importantly, Detective Silvestro indicated that few or no legal repercussions would follow if Defendant decided to admit to a mistaken touch. See Tr. at 10 ("[M]istakes happen. Curiosity sometimes gets the best of us, okay? ... That I can understand and that I can deal with."); 11 ("We can solve a mistake."); 11 ("[M]jstakes can be forgiven"); 24 ("I've dealt with guys who've made mistakes. We can deal with a mistake. I can help you with a mistake. I can't help you with the other. We're done with the other.") While signaling that harsher consequences would follow a confession of intentional touches, the detective alternately implied Defendant would face treatment or complete absolution if he confirmed the "mistake" theory. See, e.g., id.at 16 ("The only way to deal with it is ~o talk so that I can get you the help that you need, or somebody you can talk to to figure out why it . -happened, because ldoii'fWarffit tbhappen to somebody else;"); 17 ("[Mistakes] can be forgiven and easily taken care of, but ... I can only help you if you want to help yourself.... it's like being a drug addict or an alcoholic. If you don't want to help yourself, I can't help you."). He even suggested the entire reason for his visit was to facilitate a backroom negotiation where, if, Defendant admitted to a mistake, he could emerge without arrest. E.g., id. at 19 ("I could have took [sic] a different direction, but because I think it was a mistake, and you are a good person, and you made a bad decision that's why I decided to come here. The only reason."). The overall tone of the exchange was one of intense suspicion. Reading the transcript · reveals constant negation of Defendant's denials and a smorgasbord of the above-mentioned 2 tactics. But to get a true sense for how accusatory, antagonistic, and unyielding the interrogation was, it is necessary to listen to the audio-recording. The detective repeatedly interrupted Defendant and spoke over him in lengthy tirades. He never reminded Defendant that the conversation was voluntary or that he had the right to terminate it. He only hinted at Defendant's right to contact an attorney after Defendant stated, "I need to have somebody here to help me with this." 1 Id. at 18. To that, the detective responde·d, "I'm not stopping you from it. But you invited me into your house ....We're talking about it." Id. Without pausing at all for Defendant to quietly contemplate his rights, the detective then immediately continued with his relentless questioning. At last, after Detective Silvestro had used his antipathetic tactics for nearly half an hour, Defendant admitted to inappropriately touching Z.Z. Minimalistically he told the detective, "It just happened .... Like you said." Tr. at 25. Then, as the detective asked targeted follow-up questions, Defendant answered yes or no. In this way, they slowly amassed an admission consistent with the mistaken-touch pattern the detective had offered, in the rooms the detective Qad suggested. Id. at 25-30. Defendant offered almost no details of his own. At hearing, the detective attempted to validate the approach he had taken to elicit Defendant's confession. First, he denied having made up his mind about Defendant's guilt prior to the interrogation. Yet, as alluded to above, his words, tone of voice, and persistence negate that assertion. Second, while the detective suggested from the stand that he would not have been so relentless had Defendant denied rather than deflected the allegations, listening.to even a portion of the recording reveals repeated denials by Defendant. E.g., Tr. at 9 ("AS: Well I'm telling you ... you touched her vagina. LR: No."); 18 ("A.S .... [Y]ou touched her private area. LR: No. No. No.); 23 ("LR: I'm not going to tell you that I did something that I didn't do. AS: Because you don't want to admit it. LR: Because I didn't."). From the recording it is also obvious that, even at the time, the detective understood Defendant's statements as denials, so that, according to his own testimony, there was no sound reason to press on as he did. See, e.g., id. at 8 ("If, by you saying, you know, no, you know ...."); 16 ("[l]f you're shaking your head and saying n9, no, no, then I've got to ... say he planned this out."); 17 ("AS: I can only help you is [sic] if you help me. By denying, denying, denying ...."). Also at hearing, Defendant described the effects the detective's strategies had on him. First he claimed he was suffering a panic attack that prevented him from thinkfr1g clearly about the allegations. The court refrains from making a specific finding that this condition made him uniquely vulnerable. He further testified he wanted nothing more atthe time than to get out of the immediate, stressful situation. This was apparent from the tone of the recording. Second, Defendant spelled out that the primary reasons he confessed were (a) he believed iJ was the only way to end the interrogation; and (b) he believed the detective was promising him treatment, not jail, as long as he said the touching was only a mistake. Defendant was considerably more credible than the detective. Defencfant has now moved to suppress the confession on the ground that it was involuntary, in violation of the U.S. and Vermont constitutions. A hearing was held on March 2, 2015, when an audio recording of the entire interview was played, and the State called Detective Silvestro and Melissa Shea to comment on its contents and circumstances. As mentioned above, Defendant also took the stand and submitted to cross examination.

1 Defendant does not argue this was a custodial interview at which Detective Silvestro was required to read him his Miranda rights, so the court does not address such a theory. This point is made only to illustrate the intense and confession-driven character of this supposedly information-gathering interview. 3 Analysis The Fifth Amendment to the U.S. Con~titution, as applied to the States by the Fourteenth Amendment, provides that no person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law." U.S. CONST. amend. V. In this State and country, it is elemental that "[a] person accused ... of committing a crime is presumed innocent until proven guilty." E.g., Kaley v. U.S., 134 S. Ct. 1090, 1115 (2014); see also, e.g., State v. Powell, 158 Vt. 280, 285 (1992). For the·se reasons,' if a suspect appears to confess to a crime, thereby abandoning his right against self-incrimination and disrupting the presumption of innocence, the federal and state constitutions require certain assurances that his confession was voluntary. State v. Pontbriand, 2005 VT 20, ,i 22, 178 Vt. 120. The prosecution must establish by a preponderance of the evidence that "coercive governmental. conduct" did not "play[] a significant role in inducing the statement." Id. at ,i 21- 22 (regarding federal constitution); State v. Sullivan, 2013 VT 71, ,i 37, 194 Vt. 361 (regarding Vermont constitution). When evaluating the sufficiency of this evidence, a court looks at the "totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamante, 412 U.S. 218 (1973); see also Sullivan, 2013 VT 71 at ,i 37. The ultimate question is whether, all circumstances considered, the confession was "the product of a rational intellect and the unfettered exercise of free will." Id. (using a quote from Blackburn v. Alabama, 361 U.S. 199, 209 (1960)). If the defendant confessed because his rational intellect and free will were "overborne" or "overcome," his confession must be suppressed. Reck v. Pate, 367 u:s. 433, 440 (1961); State v. Gilman, 158 Vt. 210, 213 (1992). In this case, the State has failed to meet its burden. Detective Silvestro's seven unrelenting questioning strategies and the other enhancing circumstances surrounding the interrogation played a significant role in inducing Defendant's confession and caused it to be unconstitutionally involuntary. The State has not shown otherwise. To begin, "it is a well-established rule that, generally speaking, confes~ions which are ... made either under the fear of punishment if they are n·ot made, or in the hope of escaping punishment if they are made, are not received in evidence." State v. Cocklin, 109 Vt. 207, 212· (1938). Courts in Vermont and numerous external jurisdictions consider interviews to be coercive where promises of leniency "convey the expectation of a benefit that the officer has, in the defendant's eyes, the power either to grant or withhold." State v. Roberts, 160 Vt. 385, 389 (1993) (citing State v. Beckley, '157 Vt. 446, 448 (1991)). Thus, the court must examine the challenged interview from the perspective of the defendant when determining whether it was reasonable to construe a promise of leniency in exchange for a confession. Accord State v. Pillar, 820 A. 2d 1, 14 (N.J. App. Div. 2003) ("[W]hether a statement by the interrogating officer amounts to a promise must be viewed from the defendant's, not the interrogator's perspective, applying a reasonableness standard.") (internal alterations omitted). On this point, either "direct or implied promises, however slight," can rend~'~·a . confession involuntary, but various other circumstances can make both types more or less coercive. Roberts, 160Vt. at 388 (quoting Bram v. U.S., 168 U.S. 532, 542.,...43 (1897)).' For example, if the purported promise involves misrepresentations by the officer, courts are more likely to find reliance on it to be reasonable. See, e.g., People v. Cahill, 28 Cal. Rptr. 2d 1, 13 (Ct. App. 1994) ("Even collateral deception is material if it is allied with. matters amounting to a false promise of leniency; deception which is used to make more plausible a promise of assistance does render a stateme.nt inadmissible."). This is especially true where the officer misrepresents · his own influence in the prosecutorial process. E.g., U.S. v. Pacheco, 819 F. Supp. 2d 1239, 1247 4 (D. Utah 2011) (holding that officer's promises that "made r~peated improper use of the word 'I,"' caused defendant to mistakenly but "reasonably underst[an]d" that the officer "had the authority to make a deal" based on his confession). Courts are also more likely to view officer . misrepresentations as preventing a defendant's ability to make the rational decision to confess required by constitutional admissibility standards. E.g., U.S. v. Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990) (Posner, J.). Similarly, courts have viewed statements that "distort[] the alternatives among which the person under interrogation is being asked to choose" or statements that "exaggerate the c·onsequences of one of the alternatives" as impeding rational intellect and free will and therefore coercive. Weidner v. Thieret, 866 F. 2d 958, 963-64 (7th Cir. 1989) (Posner, J.). Another type of promise enhancement occurs when an officer portrays himself as an ally or advocate for the interrogation subject, for this makes it more reasonable for the subject to rely on the promise to help him. E.g. State v. Erks, 333 N.W. 2d 776, 779 (Neb. 1983) ("[Defendant], accused of a crime of a sexual nature, could easily have been influenced to confess by indications that the police who sought to get help for him would also protect him and his family from embarrassment."). Even a home setting for an interview, often associated with less-coercive techniques, can increase the efficacy of an implied promise of leniency by shielding from view the trappings of traditional criminal penalties and lending the appearance of special treatment or confidentiality to an officer's promise. E.g., U.S. v. Walton, 10 F. 3d 1024, 1030 (3d. Cir. 1993) (considering fact that interview took place on pa~k bench, "rather than in an environment more typically associated with a police interrogation," to augment coerciveness of false promise). Finally, courts have considered a defendant's lack of previous experience with law enforcement to be a factor in whether he should reasonably have believed an officer's promises. E.g., id. ("A person without prior exposure to the criminal justice system, even one with [sophisticated] intelligence and education, could easily be taken in and induced to speak under these circumstances."). However, statements that are merely predictions of how a judge or a prosecutor would view a confession rarely cross the constitutional line. Roberts, 160 Vt. at 388-89. · In this case, Detective Silvestro made a series of promises that, if Defendant would immediately admit that he mistakenly or accidentally touched Z.Z., he would not face criminal sanctions. Each time the detective stated that he co.Li Id "deal with mistakes," he could "solve a mistake," "mistakes c[ould] be forgiven" and "easily taken care of," or he could "help [Defendant] with a mistake," he was implying a promise to make any consequences short-lived and negligible. See Tr. at 10, 11, 17, 24. When he told Defendant he would get him "the help that you need, or somebody you can talk to to figure out why it happened," he was implying that a confessed mistake would lead to treatment or rehabilitation, and not to prison. Id. at 16. Importantly, none of these statements were predictions of future treatment by others-they were promises, painting together a clear, coercive picture of lenient treatment by the detective himself if Defendant would simply confess. All of this was done for the purpose of obtaining Defendant's admission. ,, ... _ ·· The picture of coercion is substantially enhanced by the various other techniques the detective used. Most notably, Detective Silvestro misrepresented the law by implying that "mistake[n]" touches did not result in sentences, only treatment, and Defendant testified that this played a significant role in his confession. Detective Silvestro also misrepresented his authority by regularly using the word "I" to describe how a confessed mistake would be "deal[t] with,". leading Defendant to believe he was striking a bargain by agreeing to confess. E.g. tr. at 11. In addition, Detective Silvestro distorted the effect of accepting his promise by exaggerating the consequences of not doing so: he repeatedly indicated a failure to confess to a mistaken 5 touching was tantamount to admitting intentional molestation. Further, within this framework, the detective periodically portrayed himself as Defendant's ally. He said he would "help" Defendant. Eg. id. at 17, 24. He pandered to Defendant's reputation as a stalwart in the community and reassured him he was'still a good person in the detective's eyes. Id. at 17. Detective Silvestro also conducted the interrogation at Defendant's home and drew Defendant's attention to this to contrast the effects of confessing there, as opposed to being arrested and taken to the police station. Finally, the reasonableness of viewing the detective's statements as promises of leniency were enhanced by the limited experience Defendant had had with law enforcement. Having been arrested only once, as a minor in possession of alcohol fifty years earlier, Defendant was not seasoned at scrutinizing an officer's prol1'.lises for reliability. Defendant's testimony that he believed the detective was promising him treatment but no jail if he capitulated to the "mistake" paradigm was eminently reasonable and persuasive under the circumstances. His confession was significantly induced by this coercive technique. In addition, an officer's promise of leniency is not the only reason a confession may be involuntary and inadmissible. A court must consider all relevant tactics and weigh them in light of the particular defendant before it. E.g., Dickerson v. U.S., 530 U.. S. 428, 434 (2000) ("The [voluntariness] determination depends upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.") (internal quotation and alteration omitted). Related to the promise of leniency is a technique wherein an officer leads the suspect to believe this is his last opportunity to strike a deal or make a certain argument in his defense. See, e.g., State v. Cox, 147 Vt. 421, 425 (1996); see also People v. Medina, 25 P. 3d 1216, 1225 j (Colo. 2001) (affirming trial court finding that a detective's indication "[the suspectj had one last chance to help himself" was coercive reinforcement of an imprqper threat). Among other things, this enhances the efficacy of the other techniques by exerting time pressure on the defendant. However, the belief must again be reasonable, and when the chance to argue in court is still on the horizon, it is seldom considered reasonable, "absen[t] ... a threat~ned adverse consequence." Pontbriand, 2005 VT 20 at ,i 27. Another tactic not yet considered is an officer refusing to disclose the reason for an interrogation before it begins. The Vermont . Supreme Court has previously noted that a suspect being informed of an accusation at the start of the interview is an indicator of voluntariness. See, e.g., State v. Bacon, 163 Vt. 279, 294 (1995). A third additional tactic is an officer not reminding a s·uspect of his right to terminate the interview at any time. See Pontbriand, 2005 VT 20, ,i 23, 178 Vt. 120; see also Medina, 25 P. 3d at 1224 (noting an indicator of voluntariness was that "the police said [the] sus.P~!=t was free to leave at any time."). Such reminders are standard practice and their absence can increase the pressure on a suspect to suffer through questions he would prefer not to answer. In cases such as this one, where the defendant contends his will was overcome by the sheer volume and pace of the questioning, this factor becomes even more salient: a defendant who is reminded that a conversation is voluntary is more likely to halt it before·it overwhelms him; rather than - suffering it until he breaks down. In this case, Detective Silvestro used each of these three tactics to pressure Defendant into a confession. First, he made Defendant believe he would have "only get one [opportunity]" to admit to the mistake pattern..'....thereafter he would be treated as though he intentionally molested Z.Z. Tr. at 19. Though Defendant had not yet been charged and could conceive of an opportunity to be heard a~ trial, he was reasonable in believing this was his last.chance to strike a special, back-door deal with Detective Silvestro that would relieve him from ever being charged or tried at all. The tactic contributed to the coerciveness of the interrogation. Second, 6 Detective Silvestro was not forthcoming with Defendant about the reason for his visit. Defendant agreed to a casual, lawyer-less conversation because he believed he was aiding an investigation into nuisance driving. Thus the voluntariness of the interview was undercut from the beginning and the detective gained a sudden position of power in surprise. Third, Detective Silvestro's choice not to give the standard reminders that Defendant could terminate the conversation' at any time increased the pressure to subscribe to the mistake pattern in order to end the encounter. It is apparent from the recording that Defendant realized his denials were futile and wanted the exchange to be over. By not reminding him of his rights and glossing over his attempt to request assistance, the detective convinced him it would only stop if Defendant confessed to the touch. Considering these techniques in conjunction with Defendant's stammering and other sigris he was not processing the allegations well, the overbearing nature of the inter.view becomes unmistakeable. It is worth noting that the court does not need to consider Defendant's claim that he was having a panic attack during the interview to hold the confession was involuntary. The State's evidence does not show that its technique was sufficiently protective of Defendant's fundamental constitutional rights, even absent a special vulnerability. Instead, the circumstances already described show the challenged statements more likely resulted from Defendant's resignation to a barrage of false promises and other tactics than from a· sudden will to admit wrongdoing. The preponderance of the evidence does not establish that Defend.ant's confession was "the product of a rational intellect and the unfettered exercise of free will." Sullivan, 2013 VT 71 at ,i 22. Accordingly, the confession must not be admitted into evidence and Defendant's motion must be GRANTED.

So Ordered.

· ned on April 02, 2015 at 10:51 AM pursuant to V.R.E.F. 7(d).

William D. Cohen Superior Court Judge

7 STATE OF VERMONT CRIMINAL DIVISION

V. SUPERIOR COURT

R.R. DOCKET NO. er

MOTION TO COMPEL AND FOR DCF RECORDS

NOW COMES the accused, by and through counsel and

requests that the court is an Order compelling the State to

disclose information in the State's juvenile files

concerning A.Sand her situation from at least April 1, 2014

through August 31, 2014. The defense further requests an

Order for pertinent DCF records including the social series

of both A.S. and J.B. Additionally, complete depositions of

four people have been foreclosed and an order compelling

those depositions is necessary as well as an order

compelling deposition of Trish Brett and DCF workers to be

identified. In support, petitioner states:

1. Now that more discovery has been obtained, it now

appears that:

A. In April, 2014, A.S. was placed in a foster home.

She reportedly was sneaking out repeatedly and these would

.. -have been. reported_to and hop_efully .. reco_rd$d _by DCF. A. S .. ____

was reporting that she was going to parties and to enjoy

drugs and alcohol and hooking up with men as old as 32.

There were a number of meetings where these behaviors were

discussed to address her "happy feet" but DCF would not

allow or provide a functional response. The State foreclosed complete inquiry of the foster mother, instructing her not

to answer what she learned at these meetings or from DCF.

B. At deposition, the mother of A.S. basically declined

to answer questions .about the period A. S. was in foster

care.

C. A.S. disclosed to her foster parent that she and

J.S. had "tag teamed" some guy in the back seat of a car.

This is very similar to the accusation of J.B., but is not

an event involving R.R.

D. It is now apparent the A.S. has much relevant and at

least some exculpatory information concerning the charge in

the case based the complaint of J.B.

E. It is now apparent the J.B has much relevant and

likely at least some exculpatory information concerning the

charge in the case based the complaint of A.S.

F. The State will not allow either to be deposed

without court order, even concerning the other youth's case.

G. Although the defense was expecting the mother of

J.B. to be produced for deposition, she has not been

deposed.

H. Once again the eye witness to the J.B. case once

- ··-----·-·--- -- ·-·------again failed to show -foi;- -deposition arid-the- State··has- again

notified the defense that the State is filing of an arrest

warrant.

2. The State's Attorneys has direct knowledge of much

undisclosed information as the State is a party to the

~------· ------·----- juvenile proceeding. Nevertheless, the State is sitting on

Brady material in the State's own hands. See, Brady v.

Maryland, 373 U.S. 83 (1963) and its progeny, and the ABA

Minimum Standards (Discovery and Proceedings Before Trial)

§§ 2.1-4.7 [with commentary] [cited in Reporter's Notes to

VRCrP 16].

3. The circumstances impacting the complainant at the

time the accusation was formed and at the time of the report

to·police contain critical information in the determination '

of whether or not the report is a true report. See, Kanin,

False Rape Allegations, Archives of Sexual Behavior, Vol.

23, No. 1, (1994); Bernet, False Statements and the

Differential Diagnosis of Abuse Allegations, J.Am. Acad.

Child Adolesc. Psychiatry, 32:5 (September 1993). Should the

defense inquiry be somehow protected by statute, the defense

rights to present evidence, confrontation, and to a fair

trial under the U.S. and Vermont Constitutions require

release of the evidence. Chambers v. Mississippi, 410 U.S.

284 (1973); Davis v. Alaska, 415 U.S. 308 (1974). The

accused in a criminal case has a fundamental right to

present testimony to place the State's claim in proper

··perspective, --to present_the_def_ense, .. and to r;;:onfr<:mt adverse

witnesses. State v. Passino, 161 Vt. 515 (1994). The accused

has a fundamental right to present evidence to explain the

factors that have led to possibly erroneous or mendacious

witness testimony. State v. Cartee, 161 Vt. 73 (1993); State

v.Ringler, 153 Vt. 375 (1989); State v. Rounds, Dck.No. 93- 127 (12/14/94). See, Davis v. Alaska, 415 U.S. 308 (1974);

Olden v. Kentucky, 488 U.S. 227 (1988); Chambers v.

Mississippi, 410 U.S. 284, 295 (1973). Any Rule or Statute

that precludes defense access to and use of relevant

information is a denial of equal protection.

5. This matter involves an investigation by DCF. DCF

regularly report to the State's Attorney and their records

are under the control of the State's Attorney pursuant to

Rule 16 · (c).

6. The State is required upon request to:

Disclose to defendant's attorney any material or information within his possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor. V.R.Cr.P. Rule 16 (b)2).

The Rule is self-implementing and is designed to assure that

all discovery is provided without the necessity of Court

involvement.

7. For discovery purposes, relevant evidence includes

evidence that is material to the case even if not directly

relevant or directly admissible; it includes evidence that

can lead to directly relevant evidence. VRCrP 16; VRE 401; - -- ·-·------·---~State ---·- -·-- ·-v... ------·Wesc-o~--inc-.-,--2066- VT --~fj-··rfs;-180-vf:- 3-45-,- ··3s-:i~53- ...

(2006); State v. Simoneau, 2003 VT 83 11 26-30.

8. SRS records are basic Rule 16 materials under the

State's control pursuant to the rule of In re: FEF, 156 Vt.

503 (1991) and State v. Curtis, Sup. Ct. Dck. No. 87-278 (slip op. filed 5/19/91). The Court has ruled that there is no SRS social worker/client privilege.

THEREFORE, petitioner requests that the court order that the pertinent State's Attorney records and DCF records be released io the defense and that depositions be provided and the witnesses must answer questions, including A.S. about the "tag team" event involving J.B.

DATED at St. Albans, Vermont, this th day of June, 2015.

Respectfully submitted,

Steve Dunham cc: State's Attorney

------~------~----~---~------f I I ·-·· .. -.. I I I I STATE OF VERMONT JkN ·9 :20M VERMONT DISTRI.CT COURT I 'i F.RAJ:{[(LTh[ COUJ.'ITY, ss. DOCK.ET NO. '1402-12-06 F'rcr I ·/ :FFI.ANf:'JJf'II'OlSTR/CT STATE OF'VBRMDNT .FAMIL:.Y!COLJRT I V. i I JEREMY LAFLD\/' I ./ · . . :DECISION APID ORDER ! . The; Defendant is charged wit~ aggravated assault. He asserts tp.at he struck the putativ-e I ...... 1 victi~1,. . "R.D . .Do.e, " in self-defense. See, inter. alia, Defe~dant's mem(?randum,. . fl.led June 30, J I 2008,·p. 2. Bymea.ns not BIJ.tirely clear_to·the Court, Defen~ant learned that Doe received·. . I I trea:~ent at N~rthw.estem Counseling and Supportive Services (NCSS)-perhaps thro_ugh Doe'$. I deposition. . .. . I ..Defendant subpoenaed .and r~ceived copies ofDoe's treatment records at NCSS. He. ?,lso

·attempted to depose:Doe 1s treatingpsycbiatrist, Adrian Webb, M.D. NCSS belatedly determined . . .· ·. . . . . that it had disclosed Doe's records contrary to federal statute and regulations, and filed a motion I ' . . ' ' I . ir.lricb was Jo:iried'by.Doci; fo' suppress the subpO'ena duces 'tecum an.a to pro'J:iioit the. d.epositi Ori .of

. Dr. Webb. x{~J~o asiced_thai th~records ber~tuined. Acc~rd~1g1y: Def~n.dant's -~ttorney's filed . · ·.

'the r~cords with· the Court under ·seal .

.0;1 pctober 17, 2008, tlus·Coui:t issued an orde1: grm1tiri.~ the M~#oi;i to Quash. by r_~ason

---~ - - - ·- - \' .·- ·~- . - ---- .. -- ·- : .- ·------. of the faiiure of.Defendant to follow 'procedures r~quired oi42 V.B. C. -§ 29Ddd-.;2 and 42 C.F:R: _: - . '• ., . . . ', Part i Defendant.was give~. ]eave tO:I,l1~te. a~ appiopri.at; applica.ti011.for. the records 11e sought ·...... · .

.· · ~d 011 November 3, 11e did so ..

NCSS is ~ agency subj eot to federaJ regulations limiting disclosure of trean;nent.

information. See 42 C.F.R. § 2.11(b )(4) (defm.fug a fodera11y -assisted aJ;ohoJ or drug ab~se . '

1 Under 42 C.F.R. ·§ 2.64, the putative victim must be identified by mean~ of a pseudonym 'for pu.zposes of the motioD the Cotit is now .ilecidiilg. · ·

------I . I I i program). U11less a patie11_!' waives Iris privilege, 2 a court may issue an order requiri1w. di;closure, I p,ursuru1t to 42.~.F.R. § 2.64(d),. ·

· only iflhe court.determines that goqcJ c;ause e~dsts. To make thit: detenninati01J the courl I must :find that: . · · .. · · ·· · · · I ·(1) Other wqys of dbtaini11g·the· information are·not a~ana_ple or would not be effectjve; I md . . . I (2) Tl1e public'interest and need for disclosure outweigh tlw potential injur:y'to the ·. -,patient,. the p]lysician-patient re~ationsbip.a:nd tlie· tr~atment. semfoes .. I

See a1soJn reB.S.;)63 Vt. 445,449 (1995\

The· Co~rt has examined the.NCS$ records ii.Jed under seal. The Court i1as determined

that only re~ords concerning tbe following information must be d~sclosed by NCSS.to the

parties:

.1. Doe's diagnosis ofmental illness; .

. 2. Medication~ prescribed for Doe's condition, mcludi.rig tb~nam_es of~he medi.cations

· and the pr~scri.bed dosage.a~ of the date of the faoide11t and° for 3 O. days before;

3 :. Any Tf?GO~ds c~ncerriing Doe's' compliance ·OT non-compliance with prescriptions . . , . . ' ·Octob~r 2006 24, 2006; · ·:from. l, t1rr6trgh Deic'emb·er. . 4. .Admissions made by Doe Jegardirig fagestion _of non-prescribed regu.lE3:ted sup stances

3 · fr.om Decem~er /o through Dec;mb.er: ?,4, 2006; ·.

5.. .Any-reci'o;rd -~f .a seizure disorder o:r: qther' condition w~ch would p.ave led·Doe to fall ~ _.: . . . or to be unsteadJ' w]ien standin~.. ·

. ·: 1n addition> Doe's treating psyclriatrist lD,ay _be dep·osed :conc6ming only tiie issues ~numernted . ·. ' ' ' (-:" . . ·. . . . ' . above: : /

2 Even ifii'were deemed thatDo·e'bad wa1ved lrispriv.ilege by testifying at-depositiop, a patient can effectively revoke bis waiver at any ti.-ne. 42 C.F.R. §2.31 (a)(8). This be pas done through counsel. · 3 The Court has made more or Jess arbitra1)1 determiDations about relevant dat~s-for iteJ!ls 2, 3 and 4. If a party bas expert OP.inion tbat these dates are inappropriate, the fa sue should ~e brought to the Court's atientio:o forthwith, supported by the e,:pert' s afiidavit. ·

·- ... ,, ...... ____~--_:___~ _ __:___:_1

------. ' I . ) I . ./ .... •

Tlw CD'url is_Jimiting dise,Josure in conformmwe ,with. 42 C.F.R ~; 2.64(e). 'Tl;~ fr.rst. sub­ i pa:rdimits disclosure "lo tl~ose parts Gf'tlie·pa.tient:s record w11icJ1 are essential to fulfill ·foe

o~jective of the order." Defendant. has asserled th_ai 'the r~cords set. forth "a1J ext.e11sjve J1istory al' I

·vfolent, ·aggressive and assaultive behavior, fotense ~d unool]trcillable boi1ts ot~ger, a:nd I

bizarre and impulsi~e behavior." Defenda;nt's Motion for an Order, filei:J'No,,ember $, 2098 .

...... '• Assuming, argue;do) that this -~har~cterization is accurate, the, Court is fun.iting disclost;~e-

because such evidence would not. be admissible- at trial. Disclosure might be available under State Jaw. See State v. Simoneau, 200_3 :VT 83, '176-Vt. 15. However, in this instance federal I statutes and regulations control. 4 Jn vie~ ofthe:conc~m-of the regulations for p"atient privacy,

only tho$e matters which are relevant .and .adrrifssible ·should be released. , • • • I •

Defendant.would no ·doubt seek admission of ofb.er. conduct ofDoe to demo~trate 'that

Doe was the aggressor- in the :inci_dent for which' Defendant has been charged. The Vennont

Rules of Evidence do not permit e:vidence of~pecifi.c incidents.to prove.a character trait. Rule

4D4(a)(2)·pro:vides:

. . (a) ·Character ·evidence ·generally. Evidencie 0f a ,person's cliaracter 0z: -a trait of character is not adrrdssible for the purpose of proving action in conformity therewith on a ·part)cular occasion'. except: · · . . • * * . · · · . · (2) CAizractir ofa victim. · Eiiidence of.a pertinent. trait of cha;a.ct~~- of thi victim of tb.~ . . crime offereq by _'an accused, 'or by the prosecution to· rebut the same, or' e:irid.e.n.ce ·of a ·. _ · 6.haracte.t trait of peacefulness of.the victim- offered. by the 1xrot,eoution b.2. a homicide case to rebut evidence that ilie ,,fotiin ··was· the :fi:rst aggressor; . -. . - - ' . - .. - . -'· - . ' '.' ' - ·-.. ---- .... - -. ~ ·- -- However, 0]1aracter .evidence 'is limited ~:Y Rul_e 4-'05: ·

... Rnle 405. Methods pf Proying_.,Character. ' . . . (a) ,Reputa:tio.zi. In al] .cases in wliicb ·evide.J?.ce o:f c~arac~e:r or a trait of character- of a per~on .i~ admissible, proof ma:y be _:rpade by 'testimq11y as fo reputation. 5 · On ·cross­ examination, inquiry i~ allowable foto r~Ieva.nt speciii,c instanc.es of conduct.

4 ]n addition, i.nfonnation regarding "yfo]eni," aggressive a:od assaultive behavior, intense and uncontrollable bouts of ~:oger, and bizarre and impulsive behavior" may be gJeaned from otber sources: · · :, lo various til.mgs, Defendant has remarked that character traits :cruJ.)' be ~stablished b)' evidenc.e of opinion a:od . reputation. Vennont Rule 405(~) permits evidence ofreputation only. State JI. Jewell, 150 Vt. 28J (1988), I ····--·--·-'·-·· ------~------~ I I i ------~------I ... •'• .. I I

{b) ·Specific i11stnrwes. of' conduct. 111 cases iIJ wlric11 character 01· a trait of cl1aracter.of ,1 ·person is ·an essential r:;Jement of.a cJrn:rge, claim, or defense, _proof may also be made. of specific.instances of h.is coi1_duc{ · · I

.. Cbar~~t~;. or Ertrait of ch?,r~c.te/j.s not ail essential .element of assauJi or of.self-defense. See U.S. I ... ·v. Xeisei;, 57'F.3d"847 (9th'CiI. ·'1995) (holding ass~ult' victim '.s chm'a:cterw~s·1Jot:·e;~entiE:il .. · I . ~1~!!1!3!1~ _d~f~P..~_E!Pt.'.?. e~~i~. 9[ ~~~f-:~~£~~~~-:?r. ~~feD:.~.~ ..oj EJ?.O~_t?t?.~c-~1:1.~e p~o?! of.: f~~lu_r~ °.tproof · .I ! of victim's violent character by'itself did.not satisfy an elerrient.ofthe charge, _claim, or'defense), .. I Char:acter. evidence may be-irtilized t9 cfomonstrate·that a putative victim was the E!;g~essor. See . . . . State v. J?.oy, 151 Vt. 17-, .B 1 (1989)" (overruled on other grounds), But such evidence is limited

under Vermo#t la;; to.·e~ide~ce ofreputat!~lJ only} Jd. In short, the.Court.willnorpermii' tb.e

D~fencla:nt to introduce evidence of speci:B.c·previo~s.fustances ofDoe's conduct to pr~ve that •••••• •·# . . Doe w.as·fue aggressor on therrightin question.

T.he. Court is pennitting disclosure of the matters s~t' forth abov·e b·ecause"it is reasonably·

cl'ear .. that th.e intormation or, tit least, accurate.reIJ.dition of.the information, is not available by . . . , ...... ·, ·means,·of.other:,sources ..f)~~gn8~is··is, ,oi&co.urse, a ·matter,0f eKp~it:0pirrion .S:0:d, t~stimo~y. .. .An· .. account by Doe regarding diagnosis would 116t be competent. Defen4ant has represented that· : . .• / \ .Doe ~ould not remember the~ames ofthe.prescriptiori ~edications whe1J ·asked at deposition, · · ...... Def's ~ot~on! Nov. J; 2~08 at' 4. A; well, Defenda:11t 1?,~s· a?Sert~d that Do.e abu~ed thEipr~scribed ..

~edicati/J~~ foi-aperfoa-of tim~ piior to the· aJ.J~ged offens·e. 1 d. -~ T_h.e _Cgurj: believes tJ:iat Doe . ;, . . - ··-· -- - ·- - ·- - _. probably cannot give an accurate bistor'y of compliance witlJ the ·medic.atioi1 regj.men. · . '• . ,_ . . ·......

. .As t9 ab~se. . of'nonrprescribed. . t~gulated substances~· it is. the· experience and obsen,ati.on .

:ofth~ Court th~t m~n~' p.eopie wh~· abuse drugs C?!rIDOt relate aJJ acc~rate history ~fthe same. "\ . . Ingestion ofnon-prescription r_egulat(:ld drugs may affect the efficacy ofpres~rihed me.dications.

6 NCSS record~ do not contain evidence of Doe's reputation. lnforlllation·Jeadirzg to .evidence of:reputation can be obtafoed form other sources. .· I i-- I ; I N~.SS records of possible illegal drug abuse are probabJy-i11e ·best record ofDoe' B histor3; that ' I exists. r . . i Lt1.st]y .it bas been suggested tlmtDbe has.some. ki11_d of?dzure c1isorqer. Siiic.e it is 1 I ./ I ali~ged thafDoe.~eceived internal I!BHC7'injuries aft.er'beiz7g.str~clc by Defendant, the.possibility I

of a seizure ~ay hav~ an impact 01J the issue of causation, Evidence of a ·s~izure di~order OJ" like 1 ...... ·. "• me~icaJ condition must be the subject of expert,.testirrio11y..

The Court also determines that the public interest an? need for disclosure outweigb _the. I . . potentiarinjury to Dqe, the physician.:.patient relationship and the treatment services .. Defendant

must "be afford;d. a meaningful opportuni.ty to present a complete defonsf?." Calif;r;zi'd v. I

J}:ombetta, 467 U.S. 479,485 (1984); State v.' Ovitt, 2005 VT°74;f _11, 178 Vt. 605.(recognizing : . . defendant's right to P:esent a defense). It is the judgment. of the· Court th~t matters relating to ...... D~e: s physical and mental conditio7:1 OD the night. of the .incident ~ay be relevant t~ both the.

· issue~.of causation ·and self-defense, and that disclo's,ure is necessary to protect Defenda:q.t; s ·

oon.stitiitional rightf!. ·Th·e Order,is.being,narro~ly.drawn.to ·attempt t0 limit :injur:yto·D.oe'-s . • ' •• • • •• • • • • :: • • • .. ,;___· ·'. • .~ f • • • .. • • • • • • • ~ • • • • • • • • • • • •

privacy,_ the-physicia:n-patient privilege and ~css' Asid~ ·frorn_·Doe 'B repC:Jrts to treatment . ,, . providers.at NCSS .about compliance with the medication r13.gin1en and use.ofprescribed ,drugs, 'it

'• • I ' • ' o I ' • • ' -

·should iiot be nece~sary for Doe's psycbiatri;t .to· ;elate· a:ny ~onfi.de:qtial' communic~ti~ns. (~t 1~· . poss.ible.that 118:L!atio:ri of S0n1El°OOnfi~~ntiaJ COl:nrnUruQa.tj9.'Q l~~)'_b_e_necesS~1J' £01: a plJ31sician to . dis~~ss th~·basfofot di~gnosis an~/~r f(?/medicafon ·dosa~e:· but the n~.~~i~:~;t~s:~:~~~ ~e . ' ...... minimal.) .

Lastly, the Or.4er is .being dr~wn to. lbnit d~-ssemination and _the 11umbe/ ofpeople ~ho wili°have acce~s to the Jqcss records. .Any items not introduced int; evidence at trial must be returned to th·e Court ·at the conclusion of the trial or of the appeal, if one is taken. . .. ·~ ,,,'

ORDER

Defend~i?s Motio11 for an Order, frled Nov.ember 3, 2008 is grantee? as fol.lows:

NCSS wi11.i]isqloserecords ofthe fallowing item; regardiJ7g '.'R.D. D.oe" to Defendant's .atlon1ey . ., ...... ' . . . a.nd·to·the State's attor.n.~y withiiJ 1o. days.of the, service of this Order .OJJ !lie attorney for 1N',CSS. . . ,· . .

1...... Doe;s.diagnosis ofmenta1.i11n,ess;... . ,· .. . 2. Medications·prescribed for Doe's c011ditfon, "includrrjg the·nmnes of the medications and the pre.scribed dcis£!.ge as .of the date.of the iiwident.and for 30 days·before; 3.. ATiy records co:ncer.riing Doe's compliaJJce or non-complia:uce wJ.tb prescriptions .from .October 1, 2006 through December 24, 2006; . · ·· · 4. Admi"ssiorJS·mad,'e by Doe wgarding°"iTJ.gestion r;if non:..prescribechegulated. -substances · ·rrom 'Decemb.er 10 throµ.gh 'Decerriber,24, 2006; · . · 5. · .Any record of a s~1:iure disorder· or otlwr condition which would have led Doe to fall or to be U11Steady whe.n· standing. · · ·

The Dd~ndi.nt .ma}' also d.~pose Doe's treating psychiatrist about (o.ese :five items.

Disclosu.re ofNCSS records and the deposition ofDoe's treati:ng-psycbi.atrist is 'limited to f . tbe attorney repies·enting the Defendant, the attorn~y ;representing the ·~tate a:rid to members of . . . their'respective offices who are involved wit]-7 or who· are consulted ~n tbis case. Photocopies of ·

tbe records sha11 nofbe ma:a.e·~y the attomeys·'or'their staffs, excepf ~e··attomeys may Ei:lso share

the infonnation witb ·expert witnesses whom .flwy retain o~ Seelc to oonsu~t. Ho;ever;. ~y such ' • I ', • -. · experts must ~e ~irected not to make further copies of.~ocuments and to return them.to tl1e

attorneys when' theii tasl~s are completed.· Defendfllt'S ~tto1:11ey may permit Defendimt .to rea,d ·

· the d;;u~en,t;, :b.ut'sha1J iiot~ai~ec~pies fotbim~ Atthe.ooncl~sion-ofth~-tri~l,·or ?fth_~.a;p~?li, . . . . · should one be take11,,an'copies of the records and depositio1J of the treatingpsycluati.i.st shall be ...... retum~d to the Court: N911e of the.persons who ~re autlJOrized to review tbeqe rncord; sh.all · ·

. . . . dis.buss the contents with any persons who are n_ot authorized to review tJ1~in.

Tb~ Court.11>ii1J maintain the. :records previousl)' submitt~d under sea.1.as well as·tl1e records returned at the conclusion of the ca~e. I ._J I I STATE OF VERMONT SUPERIOR COURT

STATE OF VERMONT CRIMINAL DIVISION v.

INNOCENT MAN II DOCKETNO.

REQUEST TO DEPOSE CHILD'S THERAPIST

NOW COMES, I.M. II, by and through counsel, and hereby requests this Honorable Court issue an Order that THERAPIST be deposed, provide counseling records and answer questions concerning Y.P.V. For cause Defendant would show as follows: I.M. II is charged with a count of Aggravated Sexual Assault, the penalty for which is not

less than 10 years with a maximum of life. He is also charged with 3 counts ofL & L with a

child for which the penalty is not less than 2 years with a maximum of 15 years.

Defense investigation has revealed that the putative victim was disciplined on one or

more occasions for sexual activity. DCF disclosures establish that Y.P.V. was in counseling

when a number of incidents occurred and that two of the incidents were reported to DCF by

THERAPIST pursuant to her duty to report child sexual abuse. Not only would these incidents

be evidence to explain the child's precocious sexual knowledge, but they would also demonstrate

~ the incentive to provide a s_tory _gf_rnis~Qngu_~t ~y ~n_()ther !O deflect from the discipline when she

was caught with adult magazines. Additionally, it is certain that a counselor, counseling a child

with sexual conduct issues inquired into potential victimization of Y.P.V. by adults and did so in

a way that the child would have felt comfortable to report. Given that there were no compulsory

reports, it can safely be said that Y.P.V. denied such victimization to COUNSELOR. There is no privilege concerning the subject matter included in the compulsory reports.

VRE 503 (d)(6). Further disclosure should be ordered on the authority of State v. Simoneau, 176

Vt. 15 (2003) and State v. Rehkop, 180 Vt. 228 (2006). See also, State v Laflin, Dck. No. 1402-

12-06Frcr (Hon. Michael Kupersmith, 1/9/09).

For jurors and professionals to properly analyze complainants of sexual assault by young

children against adults, the child's previous sources of precocious sexual knowledge, the

social/family circumstances of the child and particularly family animosity toward the alleged

perpetrator, and in domestic situations the agenda of the non-offending parent are critically

important. The DCF disclosures indicate that COUNSELOR has unique knowledge of these

factors. Her accounts of Y.P.V.'s past sexual experience differ greatly from those of the mother

and are likely more reliable. It is now apparent that there is evidence that the report of Y.P.V.

accusing J.C. of sexual misconduct was a false report. It is also apparent that there is evidence

that the report of Y.P.V. concerning T.D. was a false denial of sexual misconduct.

COUNSELOR also acknowledged one or more other incident of sexual conduct involving

Y.P.V. and this was part of the compulsory report.

It is well established that the attitudes and actions of the non-offending spouse can lead to

false reports of sexual abuse by young children. In assessing the accuracy of the report, the fact

finder "must understand the cognitive, emotional ahd social factors that surround the

. allegations". Bene cl.elf and Sch~tky, <;f!ljf(;AL EXPERIENCE: Problems in Validating

Allegations ofSexual Abuse, Acad. Child Adol. Psychiat., 1987, 26, 6:916-921, at

921.(Attached). COUNSELOR'S reports reflect that she had made assessments and

recommendations concerning the mother. Inquiry should be permitted into this area as well.

2 r1 ~.

Concerning relevancy, there is relevancy and there is constitutionally mandated relevant

evidence established by the constitutions. Davis v. Alaska, 415 U.S. 308 (1974); Olden v.

Kentucky, 488 U.S. 227 (1988); Chambers v. Mississippi, 410 U.S. 284, 295 (1973). See also,

State v. Fuller, 168 Vt. 396,403 (1998) (discussing, inter alia, Davis and Olden).

Constitutionally relevant evidence must be admitted when offered by the defense even when

otherwise excluded by a rule. Thus, for example, the defense has a right to present evidence of

the fact that the complainant has a live in boyfriend to explain why the complainant was falsely

accusing black men ofrape when they contended that all sexual contact was with consent. Olden

v. Kentucky, supra. Evidence which rationally tends to create a reasonable doubt must be

admitted, even if for some reason the State's rules of evidence would exclude this exculpatory

evidence. In Vermont, where the State Constitution guarantees the rigllt to present evidence, the

court should not rely solely on federal requirements. The court must enforce the constitution and

admit all evidence in a circumstantial evidence case which tends to rebut the State's theory or is

capable of raising a reasonable doubt.

WHEREFORE, for the above-stated reasons, Defendant moves this Honorable Court to issue an Order for disclosure of counseling records, after in camera review as necessary and order that

COUNSELOR be deposed and answer questions.

DATED at St. Albans Vermont this_.th day of ____, 2015.

Respectfully submitted,

Defense Counsel cc. State's Attorney

3 ~ ... .,. , I ·,. n I ..···· ./

• •·\' ;: ,1, .;· . \ ...... ·.· .. :·STATE -.0.FVER:MO;NT .: I . . .. ·, :suPERi·o.R·couR·t ··: cRrtv11NAL·otv1s16N · ·· .· .... FRANkCrN !JNIJ: DOCKET NP. ~!IJEO .·. . . . .

. Sta·te v.

Findings. an.d .q.rd~r.~Motio~ to Depo.~e Ch/Id'.~ Therapist ' ·. .,·, : ' ·.· '.:·: .~·.~" ~~.· .. ·:>:;.:::~ -~>:... ,~~1;:;;;:·;,~.~ .;~·,!~.. ~:11•• :~,;~·::,;~, \•' :; ~;: •• .. :~<~·~;;,,~ ~.·:··

PhD dated December 71 20.12 _in s_upp.ort of the n:iotion. The·chi/d's .therapist was provided notice of thi,s heariog, the state has _filed a memorandum ih opposition · to the ·motion arid the attorney for the child has object~d -tq the.defendant's request. .. · ·

·. ·.. :.. ":-J"liitd.efeihd.'aht;:'.'citirigJ7.RE :q;03d (q) -~·ncf(~), ....argyes·t/:J.~t,tHere ·is rio· privilege .. ,'...... · concerning the.swbjept r.natter in compulsory report~. The ~cou·~ believe·s that .the ... · defendant's interpretation is inconsistent wi~h the intent of the rule ·and .12 VSA ..: · . · section 1612(b ). The i.ntent.of th~se provisio.ns is to retain the protections of the privUeges· and to provide for disc/osur~ of information to Jaw-enforcement and : child protection agencies when crimes are committed ag·aJnst·rninors. The court . believes that the .disclosur;e by the counselor to DCF and /aw-enforcement does not waive·the privilege' as to ail information provided by the putative victim to the counselor .

. In Stqt,~ ~ Rehkop,_ 1a,q ,Vt.228 (2006) the Verino~t Suprf:!me Court held that · where a defendant made a par.ticula.rized show·ing that the .counselor's privilege~J- - =·- -­ rec;ords likeiy containeg material evidence necessary to his defense the privilege .. ·may not protect all counseling record's. The cou_rt indicated ·however, ·tha.t a defendant is not entitleo to ·unfoffered'access to such records, 'there being no · rea~on to unnecessarily sac.r.ifice th.e· confidential nature qf communications with counselors. · . · ·

After areview of the entire court's file, inclu.ding the ex.hibits filed by the parties. ~ud_ng previous pretrial hearings in this case, the·portion~ of pCF files ordered

...... -·- ...... ' •,• •HH•O,Oo - .... "'••oo o••o •"

1 STATE OF VERMONT LAMOILLE COUNTY, SS

STATE OF VERMONT DISTRICT COURT

V.

MOTION FOR ADDITIONAL DISCOVERY

Now comes the Defendant, by and through Attorney-

and hereby moves this Honorable Court to Order additional discovery be

conducted in this matter. Specifically:

A. Good cause exists under V.R.Cr.P. 15(e)(l) for re-deposing

- and ___ and and

B. Mr.- 1ights to due process under Aliicle Ten of the Vennont

Constitution and the Fourteenth Amendment to the United States

Constitution require that. undergo a

psychological/psychosexual/competenc)'. evaluation.

The following is asse1iecl in s1ipp01i of this Motion:

FACTUAL BACKGROUND

1. On October 1, 2004, nineteen and six year old. were both residing at the resided with his parents. Mr. • resided with 11s wife, and their mtant daughter.

2. Durino the earl • asked apartment. After Mr. Mr. - Deposition ot

3. Sho~fter the two affived at Mr. - apaiiment~s moth~ and lv.fr. - anived at Mr. - apartment to pick up llllllfbecause lllllllllslather, • needed a ride home from work. When they aITiv_ecl, the music from inside the

1 apai'hnent was allegedly loud, and the door was locked. entered the house by climbing onto the porch and opening a door. Deposition of at 8-11.

4. J\tlr. - walked downstairs toward Mr. beckoom and upon entering allegedlY: observed Mr.-and- naked. :Mr. was alleg~ing down on the bed, and- was covered with a blanket near Mr. feet. Mr. - alleges that when he opened the door Mr. - had an erection, that Mr. his hands were on his o\vn ~, and that a sock was wrapped around the base of l'vfr. penis. Affidavit of M,r. -at2-3.

5. M!::..1111111 allegedly jmnped from bed and stated he was not doiI1~hing. Mr. - toldlllll(toget ckessed because smother was waiting outside. 111111 dressed, wen~airs and left with his mother, while remained inside with Mr. - Mr. - :s that he left Ivfr. - apartment after Mr. - admitted to mas~1g in front of- Id.

6. Mr. - denied any such admission to the police and indicated he merely told Mr. - that even if he was masturbating he could do so in his own room. 1 Supplemental Naffative of Officer- at 2. .

7. Later that the evening, six year old. allegedly told his nin~ old sister,. that he touched'-~e." At the time tlns was allege.stated- was in the family car with his sister. -s parents,~ . were outside the car and cannot confinn this statement. See Afficlav~ at 1.

8. There is no indication in the discovery that. was ever interviewed by anyone concerning her allegation that- stated he touched Mr.- pee-pee. ,

9. alleges that when he entered the car Jessica told him that- said he touched' ~" Mr.. a. sked- if it was true, but- would not answer. Deposition of--at 14.

11. When the anived home, two iieole were waiting for them: Mr. - cousin, and ·. mother,11 Mr.. repo1ied what he a~ly observed earlier in Mr. bedroom. This prompted Mr. and Mrs .• and Ms. - to take. into a room and close the door.

12. J\tfr.• provided no details about what question.s were asked in the bedroom or

1 · . Mr. - has at least two convictions that qualify as substantive impeachment evidence under V.R.E. 609(a)(l)&(2): Grand L'lrceny and Petit Larceny. See attached docket sheets.

2 how they were asked. He did indicate Mrs. - was asking the questions. D,eposition of -·at 15. · ·

13. l'vfrs .• sunuuarizedwhat happened in the room: "[W]e were asking questions. I don't exactly remember what they were, just~ng to ask if he touched him., .ifhe did anyt~1ing ~and then we got the information and. goes, 'Call the cops now."' Deposition of-· at 15.

. 14. ~olice investigation failed to uncover what info1mation and questions were conveyed to .. during the car ride home or inside the apaitment. The content and fonn of statements and questions clming these conversations remain unknown. Depositions conducted by prior defense counsel and failed to address in any significant detail what was said to - and by- inside the car and the apa1tment.

15. Mr.- was subsequent! intenogated by the police. He allegedly admitted that he was in the bedroom naked with but fmther asserted that- came into the bedroom naked and ?ske~r. Mr. - said, "No" and began pushing - away. Affidavit of-at 2.

16. Mr.- was mTestecl and charged with Lewd and Lascivious Conduct before any forensic interview of. The forensiq interview did not occur m1til October 5, 2004, four clays after the allegations were rep01ted. It was during this inte1view that- alleged anal penetration by Mr. -

17. The Infonnation was subsequently amended to Aggravated Sexual Assault. There is no infonnation within the available discovery as to what conversations. had with family members or any other individuals about these allegations during the four days between the night of t11e aITest and tl1e forensic inte1view. Depositions by prior defE!nse counsel failed to assess whether. had conversations with anyone about the allegations in the days following the anest but prior to the forensic inte1view.

18. "The forensic interview of. by SRS is a procedurally seriously flawed example of investigatory interviewing of an alleged child victim of sexual abuse. Many of the inte1viewing enors rise to the level of procedural violations which have been associated through research and case studies as well as judicial decisions with witness contamination." Repo1t of Ph.D. at 2. A transcript of the forensic interview is attached and inc01porated by reference as though fully set forth herein.

. . 19. During the forensic interview . was i~entified "as ~et of the mquny and as a bad personwho has done something to the pnvate parts of- The inte1viewers " rompt[ ed] and coach[ed] the child to make accusatory statements against They also employed the "prolific use of leading, multiple choice and coercive questions," and engaged in the a1t of "confmnatory bias demonstrated by 011ly pmsuing accusato1y material and themes and ignoring, discounting and dismissing potentially exculpatory infomiation and inconsistencies in the child's na1Tation about core subjects." Id. at 2-3. ,

20. The forensic inte1viewers also "failed to conduct au obligatory c~tency evaluation of the child." The inte1viewers were placed on direct notice that- lacked

3 etency to a very significant degree. For example, the interviewers completely ignored s answer to the question of whether the Detective's shirt had pink polka dots. There iiwere no such polka dots, but. claimed they ~ere present. Id. This is considered a "rare factual e1rnr." Id. at 5. · ·

21. There was essentially a total fail me of the interviewers "to conduct a general inquiry of the child about family composition and relationships, his social network and exposures including his playmates, and the extent and sources of the child's sexual knowledge." Id. at 3.

22. The interviewers also "fail[ eel] to assess and report the obvious finding that .. is a highly suggestible and easily led child who frequently mimicked the exact language of the interviewer's improper questions to make accusations against Id. at 3.

23. Fmther examples of-s suspect competency even appear within the very limited deposition conducted by prior defense counsel, which consists of only 26 transcript pages w01th of questions and answers. For example:. did not lmow his right fron1 his left hand; - was asked to tell defense counsel to stop counting when a minute iissed but • sign':iect' for defense cmmsel t~ when only about three seconds lapsed; believed that a kiss constituted sex;- stated that his dad tells him jokes about private pa1is and then one question later denied this occurs; when shown a red book during the depositions he claimed that it contained "di1iy" movies; and when asked why he did not tell his dad about the allegations. stated he thought he would be spanked even though he also testified that his father never spanked him. Deposition of. at 6,18,19,25-26,28,32-33.

25 .•1111 maintained that. has a "severe imagination." He likes to play games where he would pretend to be smoking or doing ch11gs and he would talk about killing babies or cutting the hands off babies. Ms. II had pa1ticular concem over s use of language. He often uses words such as "fuck" or "shit." Ms. 1111 stated that would often ask to use her bathroom and would take an odd amount of time. She eventt~ld hin1 he would need to use the bathroom at his own home because she heard from Ms. - that • liked to through personal belongings. ·

26. Ms.II stated that. seemed very afraid to go home ifhe was hurt or ill because he would get in trouble. She developed a finn sense that. did not have a good relationship with his parents.

27 .••stated that she is afraid of. because he is weird. She has observed • staring oddly into her apartment after dmk while standiI1~mounced in her doorway. If spoken to, he would ttm1 and walk away. She indicated that- is weird and she is afraid of him. She now locks the door to her apartment.

4 28. Ms.• recalled one incident where a young girl was singing and- stopped his bike, jumped off and walked towards the little girl with clenched fists and a mean expression. She asked- what he was doing and he loudly stated, "she has to shut up!" Ms .• told him to g~1e and leave the little girl alone.

29. Ms .• believes that- has mental health problems. She has witnessed him outside screaming at his bike, "Shut up, leave me alone," and he would hit the bike. She bas witnessed him talking to the mailbox and making reference to a blow job. She maintains be talks to himself a lot and also talks to inanimate objects.

30. ·-has also observed- afraid to go home, recalling two specific incidents: one involved falling off his bike, and the other was a cut lip. . .

31. Ms. - also believes- has a lot of anger and looks angry all the time. He talks to himself a lot. She also confinned that his talking to himself involved things of a sexual natme. She has also experienced- taking too long while using her bathroom and going through belongings.

32. Ms. - is aware that-s father and her uncle,-- have a bizane relationship. Sex seems extremely imp01iant to them and they are always making sexual remarks and jokes. When they talk about girls they do not merely reference anatomical parts but also reference specific sexual acts. They have told jokes and talked along these lines in front of- and others. She has also observed. sitting outside a window listening to these discussions. :tvlr. - and Mr.. share porno movies and adult literature often. It achially makes her sick how much they talk ab01.1t sex.

33 .. --knows that- was a troubled child before these allegations. She believes he was mentally challenged. · ·

34. --revealed that- is a child who would go to different units within the complex and go through other people's belongings, and she caught him looking through items in her bathroom one day after he requested access. He is "odd." ·

35. Ms. said that- was "pretty screwed up" before the allegations made against Mr. He would sit outside playing in the diii while carrying on a conversation with someone who was not present,

taking on the roles of two different people ... even changing his voice. The conversation would be weird, sexual talk, not something a n01mal kid his age would do. He would say things like, 'Oh baby you like it, you know you like it. Come to daddy. That fucking bitch. I'm going to kill her. Fucking bitch. Fucking shit.' He would seem to cany on a conversation with an imaginaiy person ai1d change the inflection in his voice to reflect two different people.

36. Ms.• even went so far as to say she feels. may have been a victim before the current allegations were made.

5 3 7. It is clear that- has an uncle, --with whom he has had close contact. -·has resided with- in the past but the precise length and timing of the occupancies are unknown.

38. -·was charged with sexual assault on a minor in 2002 but was convicted of an amended Lewd and Lascivious Conduct. He pled guilty to touching the genital area of an eleven year old girl. He was residing with the girl's family at the time and the allegations involved touching and penetrating her vagina repeatedly over the course of an approximate one hour car ride.

39. -·was placed on probation. He violated probation after about eighteen months because he was living in an mrnpproved residence and failed to participate in sex offender counseling. He admitted these violations and, probation was continued. He subsequently avoided his probation officer, lived in an liianoved residence and was deferred from treatment because he did not attend. Mr. also failed to comply with the Sex Offender Registry, although this was not an alleged v10lation. Probation was ultimately revoked and he is in the Southern State Conectional Facility.

40. --probation pfficer stated: "It seems that he has little'i:egard for his comm1mity or the restrictions put upon him by the comt ... This writer feels that this offender has jeopardized the safety of minor children in the towns where he lives."

41. Dr. has reviewed all discovery provided by the State, all depositions, the taped interview ot Ms. 01is of her witness interviews referenced above and the information regarding He offers the following conclusions based on all available discovery:

1. The ~vaila~le evidence indicates that ... is a highly suggestible child who has been compro~sexually and who possessed precocious sexual knowledge before the SRS forensic interview and who showed precocious sexual knowledge during the interview.

2. Tue child may have been sexually exposed and over- .. stimulated and also sexual~re, parallel with and since his contact with- .

3. During the forensic interview the child displayed concerning testimonial inconsistencies in regard to core topic and also made a rare factual enor at the outset of the inte1view ·

4. The rep01is of several adult neighbors indicate that. is mentally unstable, has m1even reality contact, has had unusual sexual exposures, and has displayed precocious sexual behaviors which are ... not probed in the other investigatory documents. This indicates that the available investigatory record is incomplete, that the child has probably had other sexual exposures and experiences including violent exposmes and inistreatment which may have contributed to his testimony·

6 in this case. ·

5. All of the investigato1y documents are procedurally inadequate and flawed to a significant degree.

42. Dr. - recommends further disc~be conducted to "complete the investi ato1 record." This includes re-deposing- his mother, his father, his uncle and It would also include a complete psychological and psychosexual evaluation to assess s mental status, his cognitive abilities, and the sources for his sexual knowledge and experience.

43. There are other concerning inconsistencies that appear in the discove1y. For exampl~ and_.. clearly understated whether pornography was present in the home. lllllllllfmainta~~ possessed one porn movie but no adult magazines. - stated that his father had more than one movie because he refeITed to his father's "Dirty movie cases" and made reference to "them'' - "two [in the closet] and one downstairs." maintained that there was ™mography in the house whatsoever. Compare Deposition at 24-25;-III Deposition at 22; and- Deposition at 27- 28.

44. Upon infonnation and belie(-recently infonued-- Mr. - spouse, that he believed he could have been mistaken about what he observed in the bedroom on October 1, 2004.

45. ~infonuation and belief, - has witnessed- tiying to "hump" Mr. - in the past. Mr. told the police that he was getting dressed when - came in the room naked and was trying to hump him, and he pushed him away at the time Mr. - entered the room. .

1VIEMORANDUM OF LAW

It is unfortunate that over eighteen months after this case was filed this Court is in the

position of needing to decide the issues presented. However, fmiher investigation of this

. matter has produced significant evidence that seriously calls into question the credibility of

-s allegations, the propriety of the _methods that produced them, and the credibility of

-s parents and-who is arguably the State's first or second most important

witness. Fmiher investigation has also revealed a real possibility that- may have been

. sexually abused by someone else, which, if trne, could provide an alternative explanation for the allegations- made of anal penetration in this case.

7 1

Mr. - requires another deposition of-2 his parents and

V.R.Cr.P. 15(e)(l) requires good cause and a showing that the information sought is

otherwise unavailable before a witness can be re-deposed without agreement. 3 A court should

limit the scope of a second deposition to "specific matters which the proponent of the

deposition has shown a need to inquire about." Reporter's Notes to V.R.Cr.P. 15(e), at 106

(2003).

Good cause exists for re-deposing all of the witnesses in this case because prior

defense counsel utterly failed to cause a competent investigation of this case. Although a

change in counsel "would generally not provide a basis for re-deposing a witness," id.

(emphasis supplied), this case is unique. Prior counsel parted with this case through no fault

or request of Mr.• and demonstrated incompetent preparation and investigation_ of this

case.

No prior investigation was conducted of people familiar with but unrelated to.

As a result, none of the information revealed by ___·-·

·-and-- was incorporated into any of the depositions. There was no

investigation of-s character and mental stability prior to the allegations despite what we

now know to be significant evidence that. has a severe imagination and may suffer from

a severe mental illness that distorts his perception ofreality.

The information from the above witnesses about-s mental health may only

represent the tip of the iceberg. Defense Counsel is unaware ifthere may be prior treatment

2 Mr.11111 would not require a second de osition of. if this court orders that- undergo a psychological/psychosexual examination by Dr. or one that Dr. - can conduct alongside another suitable professional who has no prior relationship with

3 Defense Counsel has not outlined the information presented herein to the State prior to this pleading. If the State assents to redepose all the witnesses at issue, and- a sensitive witness, assents as provided in V.R.Cr.P. 15(f)(2), then Mr.Ill stipulates he has not shown that the information requested is available by any other means and will instead conduct the depositions by agreement. 8 records ai!d, if so, where they would be so that subpoenas could isslie allowing an in camera

review under State v. Percy, 149 Vt. 623 (1988)..

There was no investigation of the level or frequency of contact-· had with

• or whether he ever resided in-s residenc_e prior to the allegations in this matter. 4

If a child whose parents allow him to have unsupervised contact with a person they lruow to

be an lllltreated sex offender is subje~t to removal from the parents' custody by DCF (and it is

DCF policy that such a child would be subject to removal), then good cause exists to have a

second deposition of the. family to attempt as precise a detemiination as possible into the

level of contact. had with-- The fact that a child can be removed from a

parent's custody if such circumstances existed demonstrates the grave concern that om State

has for a child's safety when he or she has been exposed to an untreated sex offender without

supervision, and it 11.ighlights the very real possibility that. could be a victim of­

• if they had unsupervised contact.

The deposition of- in a case that canies a maxinmm penalty_ of life in jail,

contains only 26 standard transcript pages of actual questions and answers, some of which

also contain inimaterial co1Il111ents and repeatecVrephrased questions. The deposition of 1

-·and-· were essentially the same length, 29 and 25 pages of standard

transcript pages, respectively. The length of the depositions alone in a case like this should

.wanai1t a second deposition of. ai1d his parents. Prior defense counsel essentially

4 Prior defense Com1sel did ask-· whether his brother, ·was convicted of a sexual offense and whether he had bee1~10use before. Deposition o at 27.• fr. stated that had been in the house but gratuitously added that he had never een a one with ut Mr. demonstrated himself to be an tuu·eliable infonnant on controversial subjects sue as •apornography. Defense Cotmsel is in the process of an-anging for a depositii.1111o - which will hopefully occm· prior to a hearing 011 this Motion. The fact that a deposition of C'ot been conducted should not undermine any argument that a second deposition of the- fallll y 1s warranted because his testimony alone would not be acceptable to defense counsel due to cre~ty issues - he has already demonstrated problematic acceptance of responsibility in his lewd and lascivious conduct case clue to his treatment failure.

9 learned nothing about how. was reared, his behaviors in the home and around other_s, and

his mental health.

When the conclusions of Dr. - (a qualified and competent forensic psychologist

who has testified in other cases in this and other states) as to the incompetence of the forensic

interview, -s mental health and his highly suggestible nature are factored into the

equation, Mr. - argument for depositions anew garners substantial force.

Finally, Mr. - has admitted to--that he may have misinterpreted

what he saw in the bedroom. If he admits he may have misinterpreted what he saw in the

bedroom, then he may also have misinterpreted what Mr. - allegedly said about

masturbating in his bedroom - Mr. - originally said Mr. - admitted to masturbation

in the bedroom, whereas Mr. - did not admit to the police that he was masturbating, just

that he could do it ifhe wanted. Mr. - a relative of the- would be questioned

about. to the same degree as Mr. and Mrs. -

Nothing was learned about the personal background of the. family that could lead to more extensive investigation - where they have lived in the pa~t, past friends and neighbors, prior allegations by- prior sexual abuse of-just to cite a few areas that are rudimentary.

In sum, there is not only good cause to conduct depositions of the listed people anew, there is great cause. The degree of neglect during the first round and the scope of the information that has since been learned warrants new discovery depositions. In Mr. - own statements to the police he disputed Mr. - characterization of the bedroom incident and proffered a reasonable alternative explanation for why they were naked in the same room.

Mr.-·version is bolstered by his spouse's confirmation of prior incidents where. has tried to hump Mr. -

10 It is utterly impractical to attempt any limit.ations on areas of questioning during i I second depositions, although it may make sense not to allow specific questions already asked

during the first depositions. It is impractical because one of the areas afissue is-s

mental health, which opens the door to questioning regarding all areas of family history and

child rearing, which cannot practically be reduced to a simple list.

Defense Counsel is unaware of any another credible sources for the information that is

needed.

There is no question that in some cases due process may require a court to order an

independent mental health examination of a complainant or witness. Cf. Pennsylvania v.

Ritchie, 480 U.S. 39 (1987) (in some cases due process may require that the defense have access to otherwise privileged information). A summary of the Vermont case law in this area appears in State v. Barbera, 16 Vt.L.Wk. 57, n.4 (2/29/05). Barbera, however, appears to be the only case that directly decided whether a trial court should have granted an examination under the due process clause. The cases cited in footnote four of Barbera deal with either a request for a reciprocal examination because the State presented its own expert testimony about a complainant's mental health, 5 or the claimed psychiatric issues "were not particularly relevant," State v. Tonzola, 159 Vt. 491, 502-503 (1993), or the defendant did not present a

,, due process argument but instead claimed a violation of the confrontation clause under Article

Ten and the Sixth Amendment. s.tate v. Gabaree, 149 Vt. 229, 231-32 (1988).

The facts in Barbera do not lend ~hemselves to any substantial comparison in this case because the asserted basis for the evaluation in that case - to allow the defendant's expert to better assess how the complainant's already confirmed mental illness affected his "ability to

See State v. Weeks, 160 Vt. 393,403 (1993) (reversed on other grounds; issue not squarely decided; and facts not comparable to the instant case) and State v. Ross, 152 Vt. 462,466 (1989) (no need for defense evaluation of complainant because defendant argued the child was traumatized but it was due to abuse by another relative who had already been convicted of sexually abusing the child). 11 accurately perceive, recall, and recount events" - "could be made for any assault victim with a

history of mental illness." 16 Vt.L.Wk. 57, 114. Here, however, we do not know ifthere was

a preexisting mental illness at the time the allegations were made and we do not know any

current diagnosis.

In this case, the facts raise specific examples rather than vague speculation that could

directly impugn-s credibility, calls into question his ability to perceive reality, and . ..

demonstrates that. has an unhealthy imagination. The facts here also raise concerns that

• may have been the victim of sexual abuse by-· or someone else prior to the

allegations in this case, and could be falsely and unknowingly attributing that abuse to Mr.

- Finally, the facts herein suggest that. is either not truthful or not competent, for

how else can he say on the same transcript page that his father spanks him and does not spank

him, or that his father tells dirty jokes in front of him and does not tell dirty jokes in front of

him.

This case is more like the Kansas case of State v. Bourassa, which held that there was

a compelling need for a psychiatric examination of the young girl who was allegedly sexually abused. (Full opinion is attached.) This was the same standard applied in Barbera. 16

Vt.L.Wk. 57, 116. The facts are comparable to this case insofar as defense counsel proffered specific examples of behavior that created uncertainty about the co~plainant's veracity: there may have been sexual abuse by a different person, there was pre-trial testimonial inconsistency, and odd behavior was reported such as mutilation of a kitten. All of the same and more exists here, and this Court should order a psychological/psychosexual/competency evaluation of.

WHEREFORE, Mr. - requests a hearing and an order that Grants the relief cited on page one of this Motion or, alternatively, other comparable relief this court deems just.

12

------Dated at Hartford, Vermont this_ day of July, 2006.

By: Esq. Attorney for Defendant

Certificate of Service

I certify that on this day of . , 2006, I mailed a copy of this pleading first-class, postage prepaid to Deputy State's Attorney Lamoille County State's Attorney Office, PO Box 38, Hyde Park, VT 05655-0038.

Esq.

13 STATE OF VERMONT SUPERIOR COURT

STATE OF VERMONT CRIMINAL DIVISION v.

DOCKETNO.

MOTION PURSUANT TO RULE V.R.C.P. 15(e)(5)

NOW COMES , by and through his attorney, and hereby requests this Honorable Court issue an Order, pursuant to VRCrP 15(e)(5), for the deposition of (initials)F. (dob: ), a minor child and the putative victim in this matter. For cause Defendant would show as follows: is charged with one count of Sexual Assault, the penalty for which is up to Twenty years. The State has been unwilling to agree to the deposition of (initials), hence this motion.

See, VRCrP 15(e)(5)(A).

VR.CrP 15(e)(5)(B) provides for deposition of a putative victim under the age of 16, if:

1) the court finds that the [deposition] testimony of the child is necessary to assist the trial, 2) the evidence sought is not reasonably available by any other means, and 3) the probative value of the testimony outweighs the potential detriment to the child of being deposed. In determining whether to approve a deposition the court shall consider the availability of recorded statements of the victim and the complexity of the issues involved. VRCrP 15(b)(5)(B).

In the instant case, the deposition testimony of the minor putative victim, (initials), 1s necessary to assist the Court at trial. The sole evidence of the corpus delicti will be the child's own testimony at trial.

The child's competence to be a witness at trial may reasonably be questioned. See VRE 601. Pursuant to VRE 601, a person is disqualified to be a witness if the court determines that (1) the proposed witness is incapable of expressing himself concerning the matter as to be understood by ju.dge and jury either directly or through interpretation by one who can understand him, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth. In his interview with the police officer and DCF social worker, which took place on and was videotaped. The child did not demonstrate a clear understanding of the difference between the truth and things were not true. For example, The sole evidence against Defendant is the statements made by the putative victim. There is no eyewitness or physical evidence to corroborate the child's statements. As such the competence and credibility of the putative victim is critical to Mr. _' s defense. Defense counsel must be permitted to depose the putative victim to explore issues of competence as a witness; to inquire into matters relating to the child's alleged statements to his father, the police detective and social worker, and to other potential witnesses; · his knowledge of and relationship with the accused; and as to any issues or evidence which would lead to discovery of exculpatory evidence such as suggestibility, both before and after the police interview; identification; knowledge and source of knowledge; and motive for making the accusation that forms the basis of this charge. Such evidence is not available by other means as it involves the state of mind and personal knowledge of the putative victim, including other possible sources of such knowledge. Though the putative victim provided an interview to the police and social worker which was recorded, and that recorded interview has been reviewed by petitioner through counsel, the interview was primarily designed to elicit testimony which would support a sex assault charge against petitioner. The extent to which the police sought to test the veracity of such accusations was extremely limited. Only through a deposition can counsel for petitioner fully examine the context of the accusation, and address any potential issues regarding the pro_posed witness's compet~mce. The probative value of the deposition testimony far outweighs any detriment to the putative victim. The putative victim displayed no evidence that he was distraught or emotionally

2 traumatized by the questioning of the police in his recorded statement. Further, the deposition will be conducted subject to a Protective O,rd~r issued by this Court under VRCrP 15(e)(5)(C), to guard against "emotional harm, unnecessary annoyance, embarrassment, oppression, invasion of privacy, or undue burden of expense or waste of time". The deposition will be conducted in a protected atmosphere in the office of the State's Attorney or space designated by them for this purpose. The defendant, of course, will not be present and the putative victim would be accompanied by a State's attorney, a victim's advocate and an attorney appointed by the Court to represent him, pursuant to VRCrP 15 (e)(S)(C)(ii). The only representative of the defendant will be his counsel. The deposi~ion will be recorde~ arid a transcript prepared for review. The scope of the deposition can be circumscribed to the matters outlined in this motion. The presence of the State's attorney, the victim's advocate and the attorney for the putative victim would provide substantial protection for the child from any questioning that would be reasonably deemed abuse, harassing or otherwise harmful to the complainant. Moreover, over the course of his 31 years as a criminal defense attorney,' the undersigned has had occasion to depose many putative victims who are children, some as young or younger than the putative victim here. Counsel prides himself on having never traumatized, harassed or otherwise harmed a child at deposition. Contrasting with the minimal and highly controlled risks to the deponent, the risks to petitioner, if denied the opportunity to depose putative victim, are immense. If no deposition of . . the child is permitted, petitioner will be forced to rely solely on the putative victim's recorded interview and his testimony at trial, effectively blind to what the child migp.t say or what exculpatory information might be discovered to assist petitioner in his defense. Moreover, without a deposition, the defense will be deprived of an opportunity to explore the witness's competency or lack thereof, and if there is an issue of competency, to present it effectively to the _Court. The issues in this case are complex and deserve to be fully explored at deposition and otherwise through discovery. WHEREFORE, for the above-stated reasons, Defendant moves this Honorable Court to:

3 A. issue an Order, pursuant to VRCrP 15 (e)(5)(C)(i) allowing Defendant to depose the putative victim; B. appoint an attorney for the putative victim as required pursuant to VRCrP 15 ( e )( 5)(C)(ii); C. set out the conditions for ~uch deposition, as outlined in.this motion, in the form of a . . protective order, as provided by Rule 15(b)(5)(C)(i).

DATED at St. Albans Vermont this 10th day of February, 2011.

Respectfully submitted,

Defense Counsel cc. State's Attorney

4 CLINICAL CONSULTANTS·OF CONNECTICUT IN NEW BRITAIN 16 Russell Street Tel: (860) 229-4299 New Britain, CT 06052 · Fax: (860) 827-9329

I AFFIDAVIT I Re: State of Vermont V. · \<.. .I Motion Pursuant to RuJe V,R.C.P. !4(e)(5) I From:. David·Mantell, Ph.D. I

D·ate: November 16, 2010 ·I

I ·am a Forensic Clinical Psychologist ( Resume attached) licensed in the State of . .Connecticut and Vermont (part-time). My area of specialization is child abuse and neglect investigation. This specialization includes best practices in development~! child. forensic interviewing. · · ·

- . . ' On November 5, 2010, Attorney Steve Dunham of the St. Albans Office Of The Public Defender asked me to review the child forensic interview in the above-captioned case and to provide him with my professional opinion about the adequacy of the child · forensic interviewing method used. Attorney Dunham advised that "I expe~ reliability of the interviewing will be at iss~e in determini~g whether or no...... , I? . deposition will be allowed." Today after my oral presentation of findings to him, Attorney Dunham asked me to prepare this Affidavit as a summary of my findings.

My findings are that:

Al. The child forensic interview of 12.10.09 by Detective Trooper BK and D<;;F SW JB' departs significantly from best practices· of the field. · The method used is biased, incomplete, and unreliable. .

a. DF's competency to testify; ability to use agreed upon rules for questions ·and answers, and 'developmental abilities ( counting,· tell time, report his birthday, · distinguish his memory'from the.memory of others, .distinguish reality-from.fantasy), were not probed or'tested. For example, DF variously claims that the defendant is 9, 15, and 100 years old and he also variously indicates how often an event o.ccurred by · showing his fingers, his fingers and feet,· and sayi~g a number.

...... b. BK and JB used flaw.ed. technique to question DF. ·~heir primary probes were .. leading, suggestive, foi:-ced choice, and some~imes coercive, and mostly less t.han. optimal and accepta.ble for the purpose of eliciting maximally relfable and detailed narrative free of external influence. BK and JB selectively positively rein~orced accusatory I Forensic Support Services in the· Behavior'Sc{ences for Birth to Five, Elementary; Ad0Ie$cent and Adult Population I I ...... ----~-----'------'! CLINICAL CONSULTANTS -OF CONNECTICUT INNEWBRlTAIN 16 Russell Street Tel: (860) 229-4299 New Britain, CT 06052 Fax: (860) 827-9329 I I statements and negatively reinforced non-accusatory and exculpatory statements from I DF. They conducted a team interview sometimes ganging up on DF'., Suggestive props .r were used with suggestive language to elicit incriminating statements. Body Iarrguage .· ·] and tone of voice were alit:·iJ:sed\t~".fo)ective reinforcements to elimin~te contradictory and exculpatory eiements in the narrative of DF. Sometimes JB in particular narrated . for DF so that her words rather than his form the basi.s for accusations. BK and JB .. repeated questions to alter the testimony of DF. BK and JB explicitly challenged DF's retractions and non-incriminating statements often changing his testimony. 'Open­ ended questions' are documented in the forensic research literature as prodµcing the most reliable and detailed narrative in child forensic interviews. This technique was . not used by BK and JB. .

2. DF did not make a clear and unequivocal commitment to tell the truth and to only · . report things that had happened to him for which-he himself had personal memory. · Later in the interview' DF said either he or his parents fabricated the sexual assault report. Tbe'interviewers themselves developed.concerns about the honesty and accuracy of DF's statements and told him so. 'I:'he interviewers went so far as to confront DF with the cla'im that his report is not what his parents said (a technique of intimidation). I . ~{j'-1};.~,_;-~ ,·fii· 3. The narrative of DF is inconsistent and contradictory on the core elements. ~j' the., sexuai assault complaint. ·

4·. Interviewers BK and. JB tested no alternative hypotheses regarding the child sexual assault complaint. They ma:de no inquiry ·of DK as to how the complaint emerged, to. whom the initial disclosure was made, who initiated the disclosure, whether the disciosure was spontaneous or p~ompted, and whaflanguage was· used by the.. participants in the first and in an unknown number·of subsequent disciosure conversations. They even failed to show more than a slight passingJnterest in the spontaneous disclosure of DF that he had heard and seen his parents "humpint' and had confronted his parents about this and that despite him complaining to them about' · their humping his parents did it ( the humping) again and again waking DF up from h~s sle~p.

"Humping" is the central sexual allegation of this case. DF's spontaneous. disclosure in . the NUSI interview of repeated exposure at home to the ~'humping" of his parents could have formed _the basis of the complaint in this case. By failing'to explore how his complaint against KN was formed and first voiced anci the. context for that event, the interviewers overl~oked _an aJternative source of sexual knowledge and the clarification of DF's motive'to make this complaint against KN: G_iven contradictory shifts in. the 2 Forensic Support Services in the Behavior Sciences for Birth to Five, Elementary; Adolescent and Adult' Population CLINICAL CONSULTANTS OF CONNECTICUT IN NEW BRITAIN 16 Russell Street Tel: (860) 229-4299 New Britain, CT 06052 Fax: (860) 827-9329

testimony of DF about whether or not'a sexual assault by KN occurred and about whether he would and did tell the·truth, his complaint about the humping of his parents assumes a ·centra:l importance, He did not waver in· his complaint about his pare~ts. · · ·. humping. ·.Jt is essential to determine how and V\'.here DF obtained his information about humping. It is essential to determine how DF learned the word humping. It is · · ·essential to clarify whether DF transferred ·his knowledge of humping from his experience. with his parents to KN .be~ause he was angry with KN for a different reason.

. . . B. The findings summarized abov.e serve as the basis for the fqllowing conclusions:

1. Since DF is the only witness in this case, deposition of him is necessary for the determination of his testimonial capacity, his ability to distinguish between .fact and fantasy, the sources of his precocious sexual knowledge, his motives for compl.aining about humping by his parents and by KN, arid the truth of the ·matter. .

2. The defense has no ·other avenue to access his evidence and test his capacities.

3. There is no manifest evidence in the video-taped interview of DF that he is . i traumatized or even distressed by the claims he made. His demeanor was gen.erally . II positive and cheerful. Exceptions occurred only when his inconsistent and exc-qlpatory I testimony was challenged by BK.and JB. Then he was temporarily tense but he recovered his positive demeanor quickly. From the standpoint of the science of child forensic interviewing practice standards, this case calls fol'. a proper child forensic·· .interview. The deposition of DF should ~xplore tlie areas overlooked by BK and.JB and would likely produce valuable information about the reliability of the complaint..

Dated at New·Britain, C~nnecticu.t this /~ day o'rNovember, 20_10. . '

iJMJ/JawiJ, ft,]), . .· .c h . David Mantell, Ph.D: · · . . Subscribed Bnd sworn to before me this (7 .day of November, 2010. · . ~ a?t.:.- . Notary ubhc · M~A CHOGtln.it.1M, Netrnt!f PL~J::.t,, _My ~r;'il~~:m !Expl~ Alif:)':lf:i S;J, 2013

3 Fo'rensic SQ.pport Services in the Behavior Sciences for Birth to Five, Elementary, ~?olescent and Adult Popuiation

------·- --~. STATE OF NEW HAMPSHIRE SUPERIOR COURT

GRAFTON, SS.

STATE OF NEW HAMPSHIRE

v.

MOTION FOR DEPOSITION/PSYCHOLOGICAL EXAMINATION OFII

NOW COMES the Defendant, by and through his attorney, -

, and hereby moves for a deposition and psychological examination of. the complainant. A deposition is required under R.S.A. 517:13(II)(b) for good cause and to ensure a· fair trial under Part I, Article 15 of the New Hampshire Constitution. A psychiatric examination is required to ensure a fair trial and further Mr. - right to produce proofs favorable to his defense under the Fourteenth Amendment to the Federal Constitution and Part I, Article 15 of the New Hampshire Constitution.

The following is asserted in support of this Motion:

FACTUAL BACKGROUND

1. Mr. - is accused of three class A felonies, one class B felo~y, and nine class

A misdemeanors.

2.• is the complaining witness. At the time of the allegations,. and Mr.

- were living together on his mother's property in Grafton, New Hampshire.

3. On March 2i1\ 2004, approximately 6:00 p.m.,. arrived at the Concord Hospital.

She alleged Mr. - physically assaulted her throughout the night/early morning hours and again when she brought him to work, shortly before arriving at the hospital. It is unclear

1 whether she ever went to sleep from the night of March 26 through the pre-dawn hours of March

27.

4. There was alleged bruising to her face, neck, arms, and legs. She also had two cuts or scratches, one on each shiri, and there were two pinpricks that allegedly resulted from being struck with blow darts.

5. On August 16, 2004, a hearing was held on Mr.-Motion for

Depositions. The following evidence was accepted by proffer from the defense without objection from the State:

a. That. has intentionally cut herself in the past, including

carving the word "Die" into at least one arm; that she attended

the Center, a psychiatric institution that accepts

voluntary and involuntary psychiatric admissions for long or

short-term care, as an in-patient; and that. has attempted

suicide in the past; that she would spend inordinate hours at odd

times of the day, sometimes entire days, in bed;

b. That. has stated, first, she would kill herself if she could not

be with Mr. - and second, that she does not regularly

take prescribed psychiatric medications;

c. That after the allegations were made in this case. told­

• she lied about many of the ~llegations she made in this case,

including the alleged knife and dart wounds;

d. That. was asked to leave Mr. - residence;

2 e. That-living only about fifty feet from:M:r.

- residence, did not hear any commotion during the

alleged time of the assaults;

f. That--Mrs. - partner, visited :Mr.

- dming the morning hours after the alleged assault,

and that he heard pounding on the walls and ftu1her heard Mr.

- telling. to stop; that when asked he was told by

Mr. - that. was banging her head against the wall

because he broke up witilll.;

g. That Mi:s. - went to speak with. who, while crying

hysterically, told :Mrs. - that she had no where to go

and wanted to kill herself; and

h. That neither 1vb:s. - nor Mr. - obse1ved any

injmy about.s person that morning or at any point prior to

her leaving the property that day.

6. The Court denied the Motion for Depositions on the record but indicated to defense counsel that the Court would entertain a Motion fo1: In Camera review of the psychiatric records, and left open the possibility that defense counsel could renew his Motion for Depositions at a later date.

7. Mr. - filed a Motion for In Camera Review on or about September 8, 2004. ·

A hearing was scheduled for September 30, 2004, and then rescheduled sua sponte for October

21, 2004.

8. A hearing was held October 21, 2004 and testimony was received essentially recounting what appears supra, at ,i,isa - h, with additional testimony that. states she lied to

3 her mental health professionals about taking her prescribed medications, when in fact she was not taking her prescribed medications.

9. On October 25, 2004, the Court ordered in camera review of.s mental health records after receiving a copy of a letter written byll The letter indicated II was not taking her medications and was lying ab011t this to her mental health providers.

10. On November 22, 2004, the date of the last Final Pre-trial hearing, the State filed a

Motion for in camera review of.s juvenile reco1'ds.

11. On November 24, 2004, the Court ordered the Concord District Comt to provide

.sjuvenile records for in camera review.

12. The Court ultimatelyreleased po1tions of.s mental health and juvenile records to Defense Counsel under protective conditions. These records were received on November 30,

2004 and December 10, 2004, respectively.

13. The released records demonstrate the following:

a. That Ill has a histo1y of episodic anxiety and panic attacks, and

was intentionally cutting herself prior her first contact with the ·

mental health system in March of 2003;

b. That she was involuntarily hospitalized in March of 2003 for one

week incident to a suicide a,ttempt, and was diagnosed with a major

depressive disorder - "severe," and there is a paternal family

history of depression, in some instances with psychotic symptoms.

c. That a diagnosis of p~rsonalty disorder (Axis II of the DSM IV

Diagnoses) was "defe1Ted" by.s treating psychiatrist.

d. That aBer the hospital admission, counseling notes indicate that

Ill suffers "marked" impulsivit-:, that she again intentionally cut

4 \ herself subsequent to the hospital admission, and was suspended

from school for punching another student;

e. That. was advised to employ the use of rubber bands and ice

"instead of cutting," and all razors were to be "taken away;"

f. That the last mental health note Defense Counsel has access to is

from June of 2003, which indicates. was "depressed, tearful

and hopeless:' three months after her discharge form the hospital,'

that she had been home "very little," and that her treatment

progress "worsened;" and

g. Juvenile records provided show a prior conviction for a felony

burglary, in that she entered a business at a time it was not opened

to the public, with the intent to commit the crime of theft therein.

14. Although certain records have been provided, Defense Counsel is now left in the

position of not knowing whether there was further mental health treatment after Jup.e of 2003,

which leaves the complainant's psychiatric status for the approximate one year leading up to the

current allegations completely uncertain and incapable of precise diagnosis.

15. Attached and incorporated by reference is a self-mutilation article obtained from a popular on-line psychiatric research database. The article indicates that practitioners have

"observed self-harming behavior among those individuals diagnosed with bi-polar disorder, obsessive-compulsive disorder, eating disorders, multiple personality disorder, borderline personality disorder,. schizophrenia, and most recently with adolescents and young adults." See

Attachment # 1, at 1.

16. The article further indicates that "[a] common example of self-mutilating behavior is cutting the skin with a knife or razor until pain is felt or blood has been drawn." Id. This type of

5 self-harm is "seen in individuals diagnosed with personality disorders (i.e., borderline personality

disorder)." Id., at 2. "The person who self-harms often has difficulty experiencing feelings of

anxiety, anger or sadness. Consequently, cutting or disfiguring the skin serves as a coping

mechanism. The injury is intended to assist the individual in dissociating from immediate

tension." Id. (citation omitted).

17. The article essentially corroborates a prior the affidavit of--Ph.D.,

w~ich was submitted as evidence by Mr. - without objection at the Motion for In

Camera Review hearing, the contents of which are hereby incorporated by reference. Defense

Counsel has consulted with Dr. - who has reviewed the psychiatric records and requested

the opportunity to conduct a psychological examination of. to determine whether she suffers

a personality disorder or other mental illnesses. Dr, - indicated that a psychological

evaluation is the recommended method for determining whether. suffered from any such

disorders in the time period leading up to the date of the allegations, given the lack of further

records.

18. Also attached is an excerpt Dr. - provided from DSM IV, "Criteria for

Borderline Personality Disorder," the contents of which are incorporated by reference. Among

other things, borderline personality disorder is characterized by fear of abandonment, attention

seeking, manipulative behavior, rapidly shifting emotions, paranoid ideas and a general goal to obtain the attention of caregivers. See Attachment #2, at 5. Individuals with this disorder are prone to ."sudden and dramatic shifts" in their views of others. The have a "pattern of unstable and intense relationships," and "may switch quickly from idealizing other people to devaluing them."

19. Individuals who suffer this disorder "make frantic efforts to ayoid real or imagined abandonment. The perception of impending separation or rejection ... can lead to profound

6 changes in self-image, affect, cognition and behavior ... These abandonment fears are related to

an intolerance of being alone and a need to have other people with them. Their frantic efforts to

avoid abandonment may include impulsive actions such as self-mutilating or suicidal behaviors."

Id,_, at 2.

20. People who suffer border-line personality disorder may also suffer· from anti-social personality disorder, ai1 illness that is characterized by manipulative behavior in an effort to

. obtain some "material gratification," and may even suffer from all of the personality disorders.

Id,_, at 5.'

21. Attached ai1d incorporated by reference is a letter from··s mother to. The letter is undated and talks aboutll "not being healthy for months." :Mrs. - also discusses .sunhappiness at home, their lives having "fallen apart," and her belief that she may be the cause of.s unhappiness. See Attachment #3, at 1-2. The mother speaks of her fear that II will not be there for her mother in the futiJre because she could not provide a home forlll that was not "embanassing." Id. The letter also talks about Mrs. over the intensity of.s relatio11sI1ip with Mr. - and.s yelling and c1ying on the phone when the couple bad not been "going out that long." II was given two choices in the letter: live at home with Mrs. - or go to Oklahoma with her father. Id., at 6.

22. The discovery indicates thatlll was 1iving with Mr.-for several months leading up to the cmTent allegations. Attached and inco1porated by reference are letters from

II to Mr. - that show the,. depth, intensity and persistency of her feelings about the relationship. See Attachment #4.

·23. Further relevant infom1ation that was received through discove1y indicates that II alleges that Mr. - injected her with Mo1phine intravenously without her consent.

7 However, upon information and belief,. has ingested morphine voluntarily. A toxicology

screen at the Concord Hospital reveal~d THC as well as opiates were present in her blood.

24. The State Police did videotape an interview they conducted of. However, no specificity was obtained on exactly how the alleged knife cuts were sustained (e.g., physical proximity of Mr. - and. direction of the wound, multiple attempts or single attempt, etc.). There was no discussion of her psychiatric status.

25. Several days after the first trip to the Concord Hospital,. alleged that she was sexually assaulted by Mr. - However, the medical record from the first trip to the hospital unequivocally states: "There was no sexual assault at all." There is no explanation for this inconsistency on the videotape.

MEMORANDUM.OF LAW

I. ~'sRight to Depose.

A deposition of. is necessary. Defendants have a statutory right to conduct discovery depositions when it is more likely than not they are necessary to ensure a "ensure a fair trial," or

"avoid surprise," or when other "good cause" is present. R.S.A. 517: 13(II)(b). Defendants also have a constitutional due process right to adeposition under Part I, Article 15 of the New

Hampshire Constitution when necessary to ensure a fair trial. See State v. Chick, 141 N.H. 503

(1996) (citing State v. Heath, 129 N.H. 102, 109 (1986)), and State v. Howe, 145 N.H. 41, 43

(2000).

Trial courts are to evaluate a claim of necessity for depositions "based on 'the complexity of the issues involved, other opportunities ... available to discover the information sought ... and any other special circumstances."' State v. Hilton, 144 N.H. 470, 473 (1999) (quoting R.S.A.

517: 13(II)(b)).

8 The issues involved in this case are complex. The testimony from the two witnesses ~ho

were present on the date of the alleged incident indicates that the complainant was suicidal and emotionally unstable, having no place to go after Mr. - broke off the relationship and asked her to leave. The evidence further indicates she was banging her head against a wall.

The complainant has a history of self-injury, psychiatric instability and disease. A diagnosis of personality .disorder was deferred, indicating one may be present. The complainant's mother's letter indicates at a minimum that family ties were tenuous.

A deposition might assist in determining the presence or absence of criteria that could support a personality disorder diagnosis, something that would be relevant evidence for the jury in assessing the complainant's state of mind on the date of the allegations and her credibility; however, a formal psychological evaluation is the more reliable means for a proper assessment.

A deposition will avoid surprise by providing the defense an opportunity to know what.s explanation is for her utterly inconsistent reports of sexual assault. At present, the defense has been provided no explanation.

Defense Counsel notes that several of the criteria for Borderline Personality Disorder are already satisfied (the presence of five criteria must be verified to support the diagnosis): impulsivity in at two self-damaging areas (e.g., .s substance abuse and her criminal behavior); suicidal and self-mutilating behavior; and recurrent physical fights (the mental health records reveal the complainant was suspended for punching another girl and that she was stabbed on another occasion); and a pattern of unstable and intense personal relationships - that with Mr.

- and her own mother, see Attachment #3, 1:1.nd apparently the two individuals she fought with whom are referenced in the psychiatric records.

Accordingly, the complexity of the psychiatric issues involved in this matter merits a finding in favor of depositions.

9 A deposition will further aid in determining whether there are any other mental health

records that have not been discovered. The trial court has already determined what privileged

records are relevant and which are not, and the relevant records have been disclosed. Defense

Counsel,has exhausted his ability to discover information that would assist his expert in making

or ruling out a personality based psychiatric disorder, or other metal illness. Defense Counsel is

left in the position of having no information about.s psychiatric stability during the year

following the last mental health and leading up to the date of the allegations. Ifthere are other records that cover this time period, the need for a psychological evaluation may be mitigated.

All of the foregoing combine to show good cause for ordering a deposition in this matter.

II. ~ Right to a Court Ordered Psychiatric Evaluation of.

Similar considerations militate in favor of granting a psychiatric examination. Such an examination could, give1:1·the facts asserted herein, reasonably be expected to produce impeachment evidence and/or proofs favorable to his theory of defense. See generally

Pennsylvania v. Ritchie, 480 U.S .. 39 (1987); State v. Laurie, 139 N.H. 325 (1995). When such an examination is requested, the burden is on a defendant to "produce 'substantial and ' convincing evidence ... that impugns the complaining witness' psychological stability and testimonial credibility ... "' State v. Stearns, 130 N.H. 475,490 (1988) (quoting State v.

Guaraldi, 124 N.H. 93, 100 (1983)).

Mr. - has introduced substantial evidence impugning the complainant's psychological stability. Indeed, this Court already determined that sufficient concern existed to justify in camera review of the complainant's mental health records. This was based on testimony regarding her psychiatric instability on the date the allegations were made (threats of suicide and banging her own head against the wall), the lack of observed injury prior to her

10 departure from the residence on the date of the allegations, and false reports to counselors

regarding medications.

The records discovered incident to the Court's in camera review order reveal a history of

psychiatric instability, including self-injury. Self-injury is a verifiable symptom of psychiatric

illness and personality disorder(s), both of which can impact a person's motivations and

credibility. Additionally, as outlined above, there is evidence that at least three of five criteria

needed to satisfy a diagnosis of Borderline Personality Disorder under the DSM IV appear to be

present, and her own mental health professionals could not rule out the presence of a personality

disorder, opting instead to defer diagnosis.

The psychiatric examination requested could show that the complainant suffers a

personality disorder that is characterized by symptoms that directly bear on the issue of whether

• self-inflicted wounds either as a means of angry retaliation for the abandonment by Mr.

- (he broke off the relationship and asked her to leave) or as a means of coping with

the emotional anguish from such abandonment, or for attention from other people because she

could not bear the thought of being alone.• s letters certainly supports the view that her loss

. of Mr. - would have been emotionally crushing, at the very least.

Given the state of the evidence thus far it would be hard to imagine a scenario where a

court could be provided with anymore "'substantial and convincing evidence ... that impugns the

complaining witness' psychological stability and testimonial credibility·... "' such that an

examination would be ordered. Stearns, supra. Requiring more evidence would place the burden

so high that it could never be carried, and would ultimately render the rule meaningless.

WHEREFORE, Mr. - respectfully requests that this Court:

1. Hold a hearing on this matter;

2. Order that. undergo a deposition;

11 3. Order that II undergo a psychological examination; and

4. Grant any other relief deemed fair and just.

Date

,P.C.

Certificate of Service

I certify that 011 this ___ day of December, 2004, I mailed a copy of this pleading to:

-'sOffice 3 785 Dartmouth College Highway Box 7, N. Haverhill, NH 03774

.Esq.

12