For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.
There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.
But undoubtedly, the bane of the individual defendant’s existence is the forensic interview. The interview where, after a child or teen makes sexual assault allegations, a “forensic” social worker3 interviews the child for “medical purposes”4 while cops, parents and DCF watch from behind a one-way mirror. The interview is recorded and a preference for conducting an interview in this fashion is stated so as to prevent traumatizing the complainant.
The problem is that the interview is not an investigation at all. It’s simply an encouragement to the child/teen to recite their allegations. There’s no questioning of the allegations, no testing them to make sure they’re true. They’re lapped up, word for word, by ever outraged true-believer social workers.
And since this is done for a “medical purpose” and not for the purposes of a criminal investigation – then why the cop? – the statement by the complainant is admissible in court as a medical record.
So the jury gets to hear these allegations, twice, for no reason other than fuck you you dirty pervert.
Let me tell you this and I’m sure every criminal defense attorney will back me up: I have never seen a “forensic interview” in which the interviewer challenges the complainant on any single factual allegation. He put his penis inside a tennis ball and then rubbed peanut butter on it and he dressed like a Pokemon while pretending the whole thing was a sonic screwdriver and commanded that you open your mouth? How did that make you feel? Did it hurt?
So imagine this train: a teen makes an allegation of sexual assault5 and alleges that you touched her in the middle of the night, once a month for 2 years and no one was around and no one saw it and she didn’t scream or do anything to draw attention to it. Further, that this happened 6 years ago, so she doesn’t really remember the details. She’s shepherded to a “forensic interviewer”, who will make her repeat the allegations and prompt her for further details6. The whole thing is recorded and shipped off to the police department in the custody of the police officer who stands there observing this “interview”.
A trial occurs, because you deny this ever happening. She testifies that this happened in the dark of the night, with no witnesses and it was awful. She cries. The jury cries. They present the video to back up her allegations, to show that this isn’t a “recent fabrication”, even though it’s 6 years later. Then they present an expert to say that her waiting for 6 years is consistent with being sexually assaulted, that her being left-handed is also so consistent as is her failing/getting good grades and drinking/not drinking, having a mole/not having a mole.
You testify. The prosecutor yells during closing argument that you’re condoning child molestation and that you’re a liar and your story of “no this never happened” is “smoke and mirrors”7 and then the jury promptly convicts you because child molester.
After attempting some moderation at the “experts can testify about anything being consistent with child sexual abuse” – and failing – the Connecticut Supreme Court yesterday turned its attention to another troublesome area: the forensic interview. After first permitting the unabashed use of such interviews since perhaps 2001, the court has finally realized that maybe this has gone too far.
In its original rulings, the Court had attempted to specify that the forensic interviews are admissible only if they are primarily conducted for medical purposes. If not, they are testimonial statements made for the purpose of a prosecution and thus barred from court pursuant to the Sixth Amendment to the United States Constitution.
It doesn’t take an expert to realize that every interview will be admissible as long as you tack on some medical component to it. And that’s what happened. Every complainant was referred to the child sexual abuse clinic first, their “statement” taken and then shipped off to an attached doctor for an examination, even if there was no actual need. Problem solved and every interview ever conducted has been admissible by default ever since.
The reality, of course, is that it’s bullshit. Not every interview has a legitimate medical purpose. I’d venture to say that almost none of them have it.
So yesterday, in State v. Maguire [PDF], in a rare bout of sanity, the court said this:
we take this opportunity to clarify that, under the standard adopted in Arroyo, a victim’s statements during a forensic interview maybe deemed non-testimonial only if the essential purpose of the interview is to provide medical assistance to the victim.
Well. Hang on. What does this mean? The change, as far as I can see, is that the court is acknowledging that too many forensic interviews are being admitted and not it’s not the primary purpose, but the essential purpose.
A half-step? Yes. A small step? Possibly. But a step nonetheless.