By: Paul Stuckle, Attorney at Law

A CRIMINAL LAW PERSPECTIVE

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The relationship with your spouse, Jenny, has been deteriorating for some time. The unfortunate prospect of divorce is now looming. You have a five year old daughter, Brittany and a four year old son, Josh who mean everything to you. The thought of everyday life without them is too much to bear. Things could not be any worse, or so you thought.

Then out of the blue, it happens. Just when you figured you had enough stress in your life, without your knowledge, without you even being present, a spark flickers which in turn lights a match. By the end of the day this small flame will turn into a raging fire threatening to destroy your entire life and reputation. Forever.

Who knows how the spark first lights? Usually quite innocently. Take the following for an example:

During recess at kindergarten, Brittany's classmate friend Sarah tells Brittany that "her Mommy got her a new soap toy of 'Jessica' from Rugrats". Sarah says that her Mommy and her play with Jessica in the bath. Brittany tells Sarah that "her Daddy plays with her in the bath." That's all Brittany said. The two friends continue to play. Two days later, Sarah tells the teacher that Brittany's Daddy plays with Brittany in the bath. The teacher tells Sarah that is nice. Sarah says that Brittany's daddy touches her "boo-boo."

THE SPARK NOW FLICKERS

The teacher eats lunch with the school counselor. The teacher mentions that Sarah told her Brittany's father touches her private parts while she is taking a bath. The counselor leaves the lunch room to call Child Protective Services.

THE MATCH IS NOW LIT

When mother arrives to pick up Brittany from school, the director informs her that a CPS investigator is in his office. Jenny immediately becomes hysterical and demands to know what is going on. Jenny is taken to the office. The CPS investigator asks Jenny how long you have been molesting the children and whether she was aware of it. Jenny is in shock and denies the allegation. She knows the relationship is in disrepair, but also knows that you would never do what this CPS person is claiming. The CPS investigator is quite reassuring to Jenny. "We know that you are not involved," the investigator says, "the complaint has only been made against your husband." The investigator informs Jenny that by law and standard procedure she must take Brittany to the Child Advocacy Center for a videotaped interview. Jenny, crying hysterically, acquiesces.

THE FLAME IS NOW BURNING

Jenny drives Brittany over to the Child Advocacy Center. Jenny is trying to act calm. But Brittany can tell that her mommy is upset. "What is it Mommy?" "Where are we going?"

Jenny tells her that some nice people just want to talk to her, and that Brittany can play with dolls and slide down the slide. Then Jenny asks Brittany if anyone has touched her recently. Brittany is confused. She gets touched all the time. Mommy hugs her. Daddy hugs her. Her friends hug her. She wrestles with her baby brother, Josh. "Yes," she replies. Jenny's heart sinks into her lap. Jenny is now shaking with fear and anger. "Has your Daddy touched you?" she asks. Brittany is now also scared. Brittany recognizes that this is not Mommy's usual voice. Mommy is upset. Mommy is mad. Brittany must have done something wrong. "Has your daddy touched you?" Jenny asks again, her voice rising. Brittany begins crying. "No" she says. "Brittany, are you sure?" "No," Brittany replies. "Baby, has Daddy touched you in the bathtub?" Brittany does not know what to say. Daddy touches her in the tub. He helps wash her hair and gives her toys and tells her to soap up real good. "No," Brittany says and looks to see if Mommy is still crying. Mommy is still crying. "Yes" Brittany says. "Daddy touched me."

THE FIRE IS HOT

Within an hour a Child Protective Services Interviewer has made a video tape with Brittany. In the tape Brittany at first says nothing when asked about being touched in bad places by anyone. After fifteen minutes, Brittany wants to leave the room and go back to play with the dolls, the slide, and the jungle gym. When asked if her Daddy has ever touched her boo-boo in the bathtub, Brittany says yes.

When asked how does he touch her boo-boo, Brittany responds that she doesn't know. When asked if this has happened a few times or a lot of times, Brittany says "A lot, I guess."

Then Brittany says that Daddy touches her "tee-tee" too. The CPS worker asks "How does Daddy touch your tee-tee?" Brittany says "With his hand and his fingers." "Does daddy ever stick his fingers in your tee-tee?" Brittany laughs. "Sometimes." When asked if Daddy is dressed when he touches her "tee-tee," Brittany says "Sometimes. And sometimes I see his pee-pee."

THE FIRE IS RAGING

The CPS interviewer tells Brittany that she is a very brave little girl and how proud of Brittany she is. Then she asks if Brittany wants to go down the slide again. "Yes," says Brittany.

As Brittany is led to the playroom at the Advocacy Center, the interviewer meets with the prosecutor who has been watching through a two-way mirror. "Sounds like aggravated Sexual Assault," the prosecutor says, and an ongoing case of it as well." "Yes," agrees the interviewer, and I bet the father has been molesting the boy as well."

GAME--SET--MATCH

Impossible, you ask? An exaggeration? I wish. Unfortunately, scenarios such as the above occur all too frequently. The variables for false allegations change depending upon circumstances, for example:

1. False allegations have been made by mothers who desire to gain the upper hand in a custody battle.
2. Teen age step children have alleged abuse to get the disciplinarian father out of the house.
3. School age children will fabricate abuse after observing "Good Touch, Bad Touch" type films at school.
4. Children know more about sex than our society is willing to recognize. They are bombarded with sexual overtones through the movies, magazines and advertisements.
5. Some children make false allegations for attention.
6. Some children make false allegations after hearing about real sexual abuses that have occurred to friends or classmates.

Whatever the initial reason for the allegation, as our hypothetical scenario indicates, what begins as a snowball heading downhill quickly manifests itself into an avalanche. And the innocent father is the one who gets run over.

What should a father do once an allegation has been made?

TYPICAL WRONG REACTION

"I'm innocent. This is crazy. If I talk to them and explain it will go away." This is the initial feeling of the wrongfully accused. They have done nothing wrong and therefore there should be no adverse consequences. Those in authority will quickly recognize their innocence, the mistake, the overreaction, and it will all go away.

For the self proclaimed child savers though, no mistakes are ever made. "Of course the accused will deny it. Who among us would admit to being a child molester? Children do not lie. Adults lie. Molesters lie. You are lying." This is the mind-set of those who will prosecute you. Child Protective Services caseworkers and prosecutors believe the case is over once the child makes an outcry of abuse and that outcry is subsequently substantiated during the videotaped interview. No other evidence is necessary for them to submit the case to a grand jury. No physical evidence of abuse. No medical evidence of abuse. Nothing.

Now they may try to get such evidence. However, in their minds a failure to obtain it does not undermine their conviction that abuse has occurred. Hymen still intact? Well the hymen does not have to be broken in order for abuse to occur, or for digital penetration. Lack of semen? Well, of course, this offense occurred over the course of years and the child did not make an outcry immediately after the incident. Lack of substantiating witnesses? No matter, molesters work behind closed doors, in private, when no one else is around to witness. Lack of criminal record for the accused? The accused is a child molester, he is interested in secretly abusing children, not in committing adult crimes. Has the accused pass a polygraph test? Those are not admissible because a savvy adult can manipulate such tests.

Rule No. 1: Nothing an accused can say or do will convince a childsaver (CPS, Child Advocacy Prosecutor, Police Investigator) that the abuse did not occur. NOTHING!

Rule No. 2: Talking to CPS or the Police Detective, or anyone without an attorney present is the single worst thing a wrongfully accused person can do.

Rule No. 3: In most cases an experienced attorney will not allow you to talk to CPS or the police or give a statement. The attorney knows whatever you say will be used against you.

The violation of the above three rules by those falsely accused is commonplace. An innocent person believes sanity will intervene at some point, and decides to cooperate fully with the police and Child Protective Services. The accused gives written statements and videotaped statements to CPS and the police. In addition, the accused talk on the phone to detectives and caseworkers. They talk in the investigators offices without knowing whether they are being recorded. They often talk themselves into a corner that is extremely difficult to ever get out of.

In addition to the three golden rules, there are many things the falsely accused individual can do to help themselves and their lawyer. Dean Tong, a nationally known consultant and survivor of a false allegation offers the following tips:

TIPS FOR FIGHTING FALSE ALLEGATIONS*

• Recognize you're in for the fight of your life.
• Retain expert legal counsel.
• Find the necessary resources to defend yourself properly.
• Become familiar with the said (sexual abuse incident to divorce) and parental alienation syndromes.
• Ensure your attorney has experience with voir dire of experts.
• Ensure your attorney has experience litigating daubert-frye (admissibility of opinion and evidence hearings).
• Secure, at least, supervised visits with your child, at the soonest time possible.
• Hold social workers accountable by taking copious notes of interviews.
• If possible, electronically record cps interviews.
• Do not incriminate yourself.....If you talk to the enemy it will be used against you in court.
• Do not plea bargain, plead nolo contendere, no contest, accept an alford plea, or consent to dependency in juvenile-family court.
• Do not waive your constitutional rights.
• Realize that an unfounded finding by cps could still mean guilt in the eyes of the court.
• Document everything throughout the divorce / custody suit.
• If something seems wrong have an eyewitness present at all visits with your child to corroborate your testimony.
• Remain in the house, unless ordered to move out by the court or advised to do so by a professional you trust.
• Treat the accusation very seriously.
• Have an independent psychologist suggested by your attorney appointed to evaluate the entire family.
• Attempt to regain custody or visitation immediately, with the understanding such custody or visitation will include constant adult supervision by a third party.
• Shift the court?S focus from the alleged conduct of the accused (you) to the psychological functioning of the accuser (spouse).
• Maintain contact with the alleged victim.
• Steadfastly maintain your innocence.
• Keep detailed records about everything.
• Maintain files of all documents and review them for inconsistencies.
• Keep a daily journal of events.
• Track past, present, and future events on the calendar and in the diary, noting where you were, whom you were with and what you did, whether you had your children or not.
• Obtain evidence that is admissible in court...Affidavits from friends, children, and character references.
• Have a reliable witness at all meetings, interviews, and phone conversations.
• After all meetings, interviews, and phone calls, write to the person with whom you spoke, listing the main points discussed and asking that if you have misinterpreted anything they respond by return mail to your letter. Mail the original certified, return receipt requested, and keep a copy.
• Obtain and keep transcripts of all proceedings.
• Be careful what you say, it will be used against you.
• Attempt to insure the child is not being coached.
• Recognize the social worker is trying to build a case against you, no matter how they try to impress you as being helpful.
• Get involved; help yourself and your attorney.
• Take a lie detector test, paid for in cash.
• Be prepared and willing to go to court.
• Have a family doctor with whom you can substantiate any injuries.
• If possible, have the child independently examined. Do not consent to the child being examined by a doctor associated with social services.
• Do not accept a public defender to represent you.
• Do not expect common sense in the activities of child protection workers, prosecutors, or the courts. Their motivations and objectives are often misguided.
• Do not admit to anything you have not done.
• Do not offend the child protection workers. They will be looking for anything that can be used to cast you in a negative light.
• Do not interrogate your child at all about the mothers? Intentions/actions or the child?S acute transformation of behavior, if any.
• Do not act guilty.
• Do not make any concessions.
• Do not waive any rights, especially to a hearing.
• Do not attempt to influence the children by telling them horror stories about their mother.
• Do not give up!

Stephen D. Finstein, LMSW-ACP, LMFT, Mental Health Advisor and Director, National Fathers' Resource Center also adds the following:

1. If you can't afford an attorney, or the necessary experts, get a second or third job in order to do so. You may need to hire both a civil attorney (e.g. if you are in a divorce or custody battle) and a criminal attorney (e.g. if you are charged with sexual assault of a child or domestic violence).
2. Work closely with a fathers' right organization. They are usually familiar with false allegations, and they can often help you find experts who are familiar with false allegations of child abuse, domestic violence, spousal rape.
3. Network with others who have successfully fought false allegations. You can find them through a fathers' rights organization. Read books about false allegations.
4. If you did nothing wrong, never admit that you did. Sometimes CPS or a prosecutor may suggest that if you simply admit abusing your child and agree to go into treatment, your family can be re-unified and the whole problem will "go away." This can be tempting, but if you admit abuse it will be difficult if not impossible to change that admission later on.
5. If CPS requires you to be in individual or family counseling, it's best to find your own counselor/therapist rather than use their "contract" counselors. Often the "contract" counselors are afraid to contradict the CPS investigator's findings for fear of losing their contract. They get paid for counseling abusers, not for finding that you are not an abuser. If you have no choice and are required to see one of their therapists, it's also a good idea to hire your own as well.
6. When CPS determines that you abused your child, they usually present you with a written finding. They should also inform you about your right to appeal their finding administratively. Do not miss the deadlines for filing for an administrative appeal!! A significant number of CPS findings are overturned on administrative appeal. A fathers' rights organization or counselor referred by them can often help you with your appeal, in addition to your attorney.
7. If you are falsely accused of domestic violence, either a misdemeanor or felony, it may be tempting to plead "no contest" and accept deferred adjudication, pay a fine, and attend "batterer's intervention" counseling. This is a trap. If you do this, it will seriously weaken you if you later find yourself in a custody battle in civil/family court.

*Summarized and reprinted with permission from, Elusive Innocence - Survival Guide For The Falsely Accused, Dean Tong, Huntington House Publishers, 2002.

It is hoped that this information will be of help to anyone who is ever facing the tremendous horror of a false accusation. With a good lawyer, and a strong fight, these accusations can be overcome. It is an uphill battle, with many bruises and bleeding along the way. But there is no other way than to fight like hell.

Paul practices throughout the State of Texas. He can be contacted at the following:numbers: 972-423-4405; by the e-mail at the top of this page; or visit his website at PaulStuckle.com.