Some good news for residents of California even with the Supreme Court scheduled to argue the law's constitutionality.
|State law opened door to sue on alleged long-ago abuse |
Defense lawyers cry foul, but prosecutors point to safeguards
Bob Egelko, Chronicle Staff Writer
|Monday, February 24, 2003|
It's a defense lawyer's nightmare: a client charged with a repellent crime based on decades-old events that may be vivid memories for only one person, the alleged victim of child molestation.
The state law that makes such prosecutions possible -- including recent charges against an Oakland basketball coach and a San Francisco police chaplain -- can work to make trials one-sided, according to one veteran defense lawyer. But longtime prosecutors say the law has built-in safeguards.
The state's deadline for filing molestation charges is 10 years after the incident.
But there is an exception: under a 1994 law, the first of its kind in the nation, charges can be filed within a year of a police report, no matter how long ago the events occurred.
The case must involve substantial sexual contact, and prosecutors must have independent corroboration.
The U.S. Supreme Court is scheduled to hear arguments in a Contra Costa County case next month on the constitutionality of the California law.
A ruling is due by the end of June on whether it violates the ban on ex post facto laws, which define a crime or increase punishment after the fact.
In the meantime, the law has been used to prosecute clergymen and others on the basis of new allegations of long-ago crimes.
Last Wednesday, Mike Phelps, the winningest high school basketball coach in California history, was charged by Alameda County prosecutors with molest ing a boy more than 36 years ago. Phelps, 57, who has been placed on leave at Bishop O'Dowd High School in Oakland, denied the charge.
Monsignor John Heaney, 75, longtime senior chaplain for the San Francisco Police Department, was charged last month with molesting a boy over a two-year period, starting in 1961. He has also pleaded not guilty.
A Roman Catholic priest from Santa Rosa, Donald Wren Kimball, was convicted last April of molesting a 13-year-old girl in 1981 and sentenced to seven years in prison. He was defrocked in November.
Lawyers on both sides often encounter difficulty in molestation cases because of the youth of the alleged victim and the usual absence of witnesses. But one defense lawyer said cases prosecuted under the 1994 law can be especially burdensome.
"If you were asked what you were doing on Oct. 22, 1983, unless you were one of those nut cases who kept a detailed record on a daily basis, you would have no clue even where to begin," said Hayward attorney Philip Schnayerson, immediate past president of California Attorneys for Criminal Justice, a defense group.
Often, even for the innocent, "it's impossible to prove that it didn't occur," Schnayerson said. "They are very difficult for the defense. The charges usually involve such revulsion on the part of juries."
He noted that innocent people have been convicted of molestation, citing the cases of day-care workers in several states who were imprisoned in the 1980s and freed many years later after witnesses recanted.
All a defense lawyer can do, in many cases, is to offer evidence of the defendant's good reputation and lack of a criminal record, and hope that the jury finds reasons to doubt the accusations, Schnayerson said.
"Even if a person is acquitted of these charges, it still ruins their life, " he said.
But the chief of sexual assault prosecutions in Santa Clara County said long-ago molestation cases are not that different from others.
Even decades later, "you'd be surprised how well a sexual assault victim can remember what occurred," said Deputy District Attorney Victoria Brown. "I'm not saying they can tell you details of every single act, but they can tell you details of a lot of acts, especially the more heinous ones.
"Clearly, the victim is still suffering and has now found the courage to come forward."
Brown said defendants' memories, too, are often better than one might expect. A defendant's ability to remember a particular date or establish an alibi is usually not an important issue, she said, because most of her office's cases involve those who had regular access to the victim, like a family member or baby-sitter.
Raymond Boucher, a Costa Mesa (Orange County) lawyer representing people who file civil suits against alleged molesters, belittled the notion that defendants are at a disadvantage in disputes over events many years ago.
"By and large, you're talking about predators who know exactly what they're doing," he said. "These are people who have clear recollections of what happened. . . . The probability of false accusations decreases significantly as time goes on."
Both Brown and William Hodgman, a veteran of the Los Angeles County district attorney's office, said defendants are protected by the 1994 law's requirement of independent corroboration before charges are filed.
"It's a built-in check," said Hodgman, chief of his office's sex crimes division, which now is investigating more than 100 allegations of sexual abuse by clergymen. He said corroboration typically consists of statements or other evidence from the defendant -- writings, photos, or admissions to investigators -- or accounts by other alleged victims.
But Schnayerson, a defense lawyer for 35 years, said the corroboration requirement, while "good in theory," is subject to varying interpretations by judges and can't be counted on as a safeguard. He also said the Supreme Court was likely to uphold the California law.
Brown, the Santa Clara County prosecutor, contended the law was fair.
"It's very hard for children to come forward," she said. Especially in old cases, "there's no motive to lie. People should be held responsible for their acts, even if it is several years later."
E-mail Bob Egelko at [email protected].
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