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Friday, May 17, 2013

Ind. Courts - "Indiana court rulings make it harder to prosecute child abusers, advocates say"

That is the headline to this long article by Matthhew Tully of the Indianapolis Star, which I believe will appear in Sunday's paper. Some quotes:

Laurie Gray is a former teacher and deputy prosecutor who continues to be an advocate of vulnerable and abused children, an expert in the painful, delicate job of interviewing children who have been sexually abused.

These days, the Fort Wayne lawyer is devastated by the latest in a series of Indiana court rulings she and others believe are making it harder to pursue molestation cases involving young children. The rulings have sided with convicted child molesters and set restrictions on the evidence and testimony that can be presented during trials, which by their very nature are difficult to prosecute.

The rulings, two of them by the Indiana Supreme Court, “mean that we’re going to prosecute fewer cases,” said Gray, who spent much of her decade in the Allen County Prosecutor’s Office focused on sex crimes. “We are going to have cases, especially cases where the perpetrator is someone close to the child, that we simply won’t be able to take to court. It’ll be great for statistics — we’ll have fewer child molestation convictions and everyone can say we’re a safer place. But it won’t be true.” * * *

Gray’s fears escalated after the Supreme Court issued a ruling earlier this month in the case of a man convicted in 2011 of molesting his daughter and a friend of hers in 2009, when both girls were 6 years old. The high court overturned the conviction in the case involving the man’s daughter after determining that the testimony of a nurse who interviewed her at a sex-abuse center in Fort Wayne should not have been admitted. Why? Because, the court said, it was not clear that the girl knew she should be truthful when talking to medical professionals. Without that guarantee, an exception to hearsay testimony often given to medical professionals should not have been granted, the court ruled. * * *

Gray believes the jury should have been trusted to consider the conflicts between the girl’s testimony on the stand and her detailed interviews with experts and medical professionals two years earlier. Unlike the other young victim, Gray said, this child “did not have the support of her family to face her father in a crowded courtroom and tell a room full of strangers exactly what he did.”

The father is in prison for molesting the second girl and the court said he could be retried for the case involving his daughter. But without the nurse’s testimony it’s hard to see how the case can be made. And the precedent is the issue, Gray and others believe, saying the court has put potentially damaging roadblocks in the way of testimony from medical professionals.

Making matters worse, two other rulings from 2009 and 2010 further limit the evidence that can come into the court.

In the first, Tyler v. State, the Supreme Court found that prosecutors cannot use a recorded statement from a victimized child in addition to their in-court testimony. This puts immense pressure on the live testimony of the child, on the stand and under duress, Gray and others said. In the second case, Cox v. State, an appellate court tightened this limitation as it ruled in favor of a man found guilty on 15 counts of molestation. * * *

Some are defending the court’s rulings. Joel Schumm, a respected professor at the Indiana University Robert H. McKinney School of Law, said the rulings could make prosecutions more difficult, but he believes they have brought into better balance the scales of justice.

The state attorney general’s office called the most recent ruling “a mixed bag for prosecutors” that “does make it somewhat more onerous to get a child’s statements to doctors and nurses admitted in court.” But in a carefully worded statement the office said the court’s ruling offered a roadmap to prosecutors seeking to secure such testimony. In the end, the statement said, “it’s not yet clear how this case will effect child abuse prosecutions.”

ILB: The cases mentioned in the story are:

Posted by Marcia Oddi on May 17, 2013 11:40 AM
Posted to Indiana Courts