Did five-year old Nancy lie when she told a psychiatrist in graphic detail about her young cousins' sexual activity with her? Robert Scheffer, the boyfriend of the child's babysitter, now stood accused of digitally penetrating the child at a later time in a manner similar to that of her cousins. His trial lawyer asked the judge's permission to question the child about her previous reports of similar acts by her cousins to determine if the little girl had made up the accusations.
The judge refused to allow the child to be questioned since there was no basis to think that the prior accusations were false. At trial, the prosecution's evidence consisted primarily of the child's account, related through her mother and a nurse. Mr. Scheffer was convicted of rape and indecent assault of a child.
Ironically, a voir dire would have required reliance upon the veracity of the child's report.
On appeal, Mr. Scheffer argued that his trial lawyer rendered ineffective assistance of counsel by not insisting on his right to a voir dire of the child on a different ground. The goal of the questioning, he contended, should have been to determine whether the earlier incidents were similar to the act of which he was accused. For if the described behaviors were similar, the experience with her cousins would have been relevant to explain the child's proficiency and knowledge of sexual acts and terminology (Commonwealth v. Ruffen, 507 N.E.2d 584 (1987)).
Holding: The conviction was overturned. The trial lawyer rendered ineffective assistance of counsel when he failed to direct the trial judge's attention to the relevance of the child's prior accounts of sexual activity with her cousins. Under Ruffen, the jury was entitled to determine whether a child so young was able to describe the sexual acts as a result of her experience with her cousins, or because of Mr. Scheffer. Otherwise, said the Court, "a juror might well find the defendant guilty simply because it was not plausible that a child would possess knowledge of such sexual manipulation unless she had acquired it from the acts with which the defendant was charged." The defense attorney, said the Appeals Court, had "barked up the wrong tree." Mr. Scheffer was entitled to a new trial.
| Robert Kinscherff, M.D. Children's Law Center |
Dr. Kinscherff comments: This case neatly distinguished between two evidentiary means by which testimony regarding a child complainant's sexual history might be introduced. The first basis requires the establishment of some basis for believing the reports of earlier sexual victimization were untrue. In Scheffer, the trial court excluded evidence of prior digital penetration because there was no showing the child's reports were false. Trial counsel should have argued for voir dire of the child on grounds the earlier experiences of reported digital penetration by other persons were "substantially similar" to the alleged acts by the defendant. This would have helped the jury understand why the child might have precocious sexual knowledge.
Defense counsel often adopt the strategy of portraying preschool child victims as telling a lie, incapable of reliably recalling or reporting events, or at least very confused regarding the alleged sexual acts or identity of the perpetrator. The defense counsel in Scheffer may have had this in mind when arguing for voir dire on grounds that the child had made prior false allegations of sexual assault.
Another common defense strategy is an attempt to prove that the preschool victim's accounts of sexual activity with a defendant or others is unreliable even when the child is not telling an outright lie. Expert testimony may be introduced by the defense regarding the capacities of preschool children to accurately recall events or distinguish between separate events. Factors may be reviewed such as the age of the child at the time of the alleged incident, effects of multiple exposures to similar events, or effects of multiple interviews on the suggestibility of the child. Ironically, in Scheffer, accomplishing a voir dire of the preschool complainant on grounds she had previously experienced "substantially similar" sexual acts would have required reliance upon the veracity of the child's reports.
The child's ability to accurately characterize sexual acts and identify perpetrators must be assumed or accepted in order to establish that she had experienced prior "substantially similar" sexual acts. The appellate court held that failure to insist upon voir dire of the child on the Ruffen substantially similar" basis constituted ineffective assistance of counsel. However, defense counsel are in a bind. Voir dire of the child may help the jury understand why this five-year old girl has precocious sexual knowledge that may not originate with the alleged acts of Robert Scheffer. But, while this might lead the jury to avoid placing undue weight on her precocious sexual knowledge, it may also convince the jury that the child is capable of reliably distinguishing between sexual acts and perpetrators of those acts—including any acts by this defendant.
