NEW STUDY COULD AID DEFENSE IN CHILD MOLESTATION CASES
by Dean Tong, MSc.
May 6, 2007
You’ve been accused of perhaps the most heinous crime on Earth; that of molesting your 3 or 4 year-old daughter. Never mind that your wife has motive, method and opportunity to “get” you. Never mind that you’re involved in the midst of a contentious divorce, parenting time battle and child custody war. And never mind that you haven’t had as much as a parking ticket the last 10 years and your local pastor will act as a character witness for you in court.
This is not the Duke University rape scandal and contains samples submitted for DNA testing, fingernail clippings, and CSI Miami-related forensics. No, this is your little kid who has allegedly told a child protective services investigator and/or therapist that “daddy touched me in a secret or bad place.” So, here’s the $64 Thousand Dollar Question: How will your attorney with 30 years of experience impeach the alleged words, via outcry, from the mouth of a babe? In other words, how can you be proactive and try to prove a negative, if in fact that can be done?
In a study (The Penile Plethysmograph, Abel Assessment for Sexual Interest and MSI-II: Are They Speaking the Same Language) just published by Francis & Taylor Group in The American Journal of Family Therapy, 35:3, 187-202, 2007, this writer, who works professionally as a forensic trial consultant in contested abuse and custody cases nationally, sent 53 natural fathers all accused of molesting their young children within bitter custody battles, for psychosexual testing purposes. Fifty one of the fifty three participants passed with flying colors tests such as the Abel Screen (www.abelscreen.com), MSI-II, and even the controversial Penile Plethysmograph (PPG). And my data and results achieved both statistical and clinical significance, finding that 96% of the men assessed for sexual deviancy purposes did not possess sexual interest or arousal patterns or cognitive distortions consistent with genuine child molesters.
These tests cannot detect actual culpability and know for certain whether or not a man perpetrated a sexual act with a child, albeit, paraphilia like exhibitionism or voyeurism, or something far more sinister such as penetration or sexual battery. These tests do measure one’s propensity or penchant to glean whether or not you are more sexually interested in children, or consensual acts with adult females. The history of sexual arousal, sexual interest, cognitive distortions (justifiable denial), impulse control and antisocial personality is all documented, empirically speaking, within the published study.
In cases like these, of he said, she said, and what a young child allegedly child, it is absolutely vital the defense mount an aggressive plan of action with the resolve necessary to espouse ways in which its client, the accused, can show he’s not the monster he’s been painted to be, and here’s why not. Submitting the accused for psychosexual tests that are both reliable and valid and administered by an “expert” in the field of sexual deviancy is an important tool that should not be overlooked by defense attorneys.
These test results can be helpful in cases where attorneys must represent their accused clients in juvenile, criminal, family, and administrative (appealing child abuse registry blacklisting) courts. Proffering clean test results of clients into evidence on the record can be controversial and at times arduous, and defense lawyers should realize that receiving motions in limine from adverse counsel is commonplace.
Most American state courts require any scientific test, such as the Abel Screen, pass the Daubert or Frye (Mohan in Canada) case law litmus test before the same can be ruled legally admissible. My study includes all of the scientific reliability and validity data with respect to the tests analyzed, necessary to pass legal muster at any contested Daubert or Frye or Mohan pre-trial hearing. It would behoove attorneys and pro se litigants to familiarize themselves with these tests and this study and incorporate the same in their tactical repertoire. Anyone interested in a complimentary copy of my study can e-mail me backchannel and I’d be happy to provide you with one.