Thirty years after Dylan Farrow first made allegations of being molested by Woody Allen, HBO has aired a documentary detailing the circumstances of both her allegation as well as the legal repercussions that follow when a child of tender age alleges sexual assault. As someone who has worked in district attorney’s offices in two different states with over 20 years of practice, I have become used to the armchair-opinions based on select facts that occur when cases like this are aired to the public in general. The jury of mass-TV viewership debates true crime drama based on the knowledge handed to them from Hollywood production staff. I have not reviewed any police reports, grand jury testimony, or forensic interviews and therefore cannot comment on the specific facts of that case.
In honor of Child Abuse Prevention Month and as someone who has specialized in sex crimes prosecution, I do want to comment briefly on general themes I have seen when vulnerable children are put in to the center of our criminal justice system.
Most of my work has focused on child sexual assault and I regularly appear in court to handle the kinds of cases where children are sexually assaulted by someone with whom they have a relationship of trust. Please understand, for the most part, children have to testify in court. This is a painful and challenging reality of child abuse trials. I have personally handled cases where 6-year-olds have taken the witness stand and testified against a loved one, answering intrusive questions by me as well as being subjected to a vigorous cross examination by the defense attorney. They sit alone on a witness stand facing a judge and jury, all strangers to them, and discuss intimate aspects of what has happened to their body. Most adults would find these private detailed descriptions violative and humiliating. More emotionally complicated than detailing the perverse details of sexual assault, is the fact that the child has to face the person who abused them, and testify against someone for whom they likely had, and possibly still have, feelings of love and trust. Children also know that their allegation may hurt other family members like siblings and grandparents.
There is often no upside to these painful disclosures and often, most victims of non-stranger sexual assault do not disclose what happened to them because of the embarrassment and the complicated familial dynamics. Despite what is shown in crime dramas, many child sexual assault trials do not have DNA or forensic evidence. DNA doesn’t last on human body parts in perpetuity. In fact, urination, showering, clothes-changing and just regular skin shedding all contribute to the absence of DNA’s presence in child sexual assault cases. The absence of scientific data does not relieve prosecutors of their high burden of proof beyond a reasonable doubt to a unanimous jury.
Juries struggle with these cases. It is hard, maybe even unfathomable to think of someone who is in a guardianship role to touch children in a sexual way — even more so when the subject is famous. Though we have seen some shifting in juries’ verdicts as evidenced by recent adult victim sexual assault prosecutions of Harvey Weinstein and Bill Cosby, it is important to note that these verdicts came decades after authorities first investigated these cases. In child sexual assault cases, not only are the children scrutinized but so are their mothers. What SVU prosecutor has not heard opposing counsel refer to a child victim’s mother as “histrionic” or quote Congreve’s 1697 poem in a closing argument with the infamous “hell hath no fury like a woman scorned“ line?
Mothers are judged every day for their behavior in every aspect of their lives. Let’s not judge mothers who believe their children when their kids disclose abuse and do what they believe is right in order to protect them. There is no manual for mothers going through this special kind of hell.
Prosecutors must take all of these dynamics into consideration when they decide to file charges in court. One of the main considerations we face in charging decisions is what is best for the child at that time, as well as whether we can prove to a unanimous jury, the facts of a particular case beyond a reasonable doubt. A decision not to prosecute often means that we don’t have enough evidence to meet this high standard of proof. Let us not assume children are being attention-seeking because they make a disclosure.
Let us not judge mothers for believing their daughters. It is important to understand that children are capable of telling the truth and they do tell the truth, but the criminal justice system is not necessarily a child-friendly place.
Leora Joseph is the current general counsel and chief administrative officer at the Auraria Higher Education Center. She is the former managing chief deputy district attorney for the 18th Judicial District Attorney’s Office. Prior to that she served as chief of the child protection unit in the Boston (Suffolk County) District Attorney’s Office. She has lectured frequently on the topics of sexual assault, domestic violence, child abuse and human trafficking.