He Said…She Said…What the Legislature Said


    He said…she said…

    It’s back to school time and you should know what that means. It means children showing up to school in cut-offs and short sleeves. It means skin being exposed and marks or bruises easily seen. Curious and unexplainable marks or bruises noticed by school officials. It means 9 year-old Katy, who just left her dads home a week ago after a thoroughly enjoyable six-week summer visit, confiding to Mrs. Smith, her English teacher, that her stepfather has been touching her in places that make her feel uncomfortable.

Teachers are mandated reporters. Pursuant to state and federal law, they are obligated to report any reasonable suspicion of child abuse to child protection officials. Failure to do so can result in their criminal arrest and/or revocation of their teaching license.

    According to Wikipedia, the definition of res gestae is "in American procedural law, it refers to an exception to the hearsay rule for statements made spontaneously or as part of an act." Welcome to the world of abuse and he said, she said, and what a child said. In other words, child victim hearsay is one exception to the hearsay rule where in alleged physical and sexual abuse cases those out-of-court statements from children are legally admissible into evidence on the record.

Clearly, children’s out-of-court statements must be made spontaneously or contemporaneously and possess an indicia of reliability and an inherent degree of trustworthiness. In order to be considered spontaneous, reliable and trustworthy, this means same statements should not be in response to suggestive, leading, closed-ended and directed questions by another person. In order to be considered spontaneous, reliable and trustworthy, this means same statements should not be triggered by any book, movie, web site, therapy, prop, or aid that could taint or contaminate the disclosures.


    What the legislature said 

    It is interesting to note that California’s No Fault Divorce Law, which became law nationally in due course, aka the Family Law Act of 1969 (that officially became law in January 1970), eliminated the showing-of-fault-based requirements to obtain a divorce both for spouses seeking a divorce by mutual consent, and in cases where only one of the parties to the marriage wanted a divorce. In other words, no proof or evidence was required to obtain the petitioner’s desire to obtain equity-at-law – i.e. the dissolution of marriage.

    In 1974, Congress passed the Child Abuse Protection and Treatment Act or CAPTA (aka Mondale Act). CAPTA, which became law at the same time I Am Woman Hear Me Roar took heed, established anonymous reporting of child abuse and neglect, nationally, and the National Center on Child Abuse and Neglect Data System or NCCANDS. The federal law screamed child abuse was rampant and the government had to put a stop to it.

This well-meaning, well-intentioned, but misguided legislation actually poured gasoline on the fire. It created awareness of a problem. And we all know that genuine child abuse happens and is a problem. But the very solution became more of a problem as hearsay cases became more the rule than the exception (95% of alleged child sex cases contain no medical findings or evidence). Unfounded cases of child abuse outnumbered substantiated cases of child abuse by 3:1. In fact, Dr. David Finkelhor conducted a scientific study for the publication Child Maltreatment from 1992 – 2006 and found the incidence of child sexual abuse declined by 53% but yet the number of reports remained consistent at about 3 million/annum (see attached). What does that say about the number of unfounded reports of child sexual abuse, nationally?

 To compound matters, former President Clinton signed into law in 1994 as part of the National Crime Act, the Violence Against Women Act (VAWA). VAWA was the creation of our current V-P, Joe Biden. Twenty-five years after No Fault Divorce and twenty years post-CAPTA, America passes domestic violence legislation to protect women-at-risk and again this is a necessary measure. But the legislative statutory words read a woman need only make a statement of fear of threatened harm (with no actual proof or evidence) to authorities and/or via affidavit as part of an order for protection from abuse, and she would receive relief from the court. No Fault Divorce – Hearsay; CAPTA – Hearsay, and VAWA – Hearsay.


    Planned Parenthood and Probing Questions

    Now, almost twenty years after VAWA first passed into law (and like CAPTA, has been re-authorized every time), where are we? On August 1, 2012, as part of the Patient Protection and Affordable Care Act, Congress now requires doctors routinely screen female patients for abuse by their intimate partners to reduce domestic violence and promote the overall well-being of its victims. According to Debbie Bamberger, a nurse practitioner who works for Planned Parenthood in California, "mostly we’d been asking questions about physical violence, is there anybody kicking you, punching you, harming you? But there may be other less visible signs of abuse that may not be picked up during a normal physical. Planned Parenthood has gotten much better at eliciting information through more probing questions: Is a woman’s partner forcing her to have sex, tampering with her contraception or refusing to wear condoms?"


    The point of this article is not to detract from the need to protect our most vulnerable persons in society – children and women. The point of this article is not to paint children or women as liars or victims of paranoid delusions. The point of this article is to raise awareness and eyebrows at the ease at which American decision makers allow, and rely upon hearsay evidence.


Dean Tong, forensic trial consultant, and expert is author of the critically acclaimed book: Elusive Innocence: Survival Guide for the Falsely Accused. Retained by parents and attorneys in contested divorces, child custody and abuse cases from 49 states and Canada, Tong has most recently appeared on CBS 48 Hours, CNN, Court-TV, MSNBC, and Dr. Phil.

Web site: www.abuse-excuse.com