Conflicting rights in sex-abuse cases. Rulings reinforce suspect's right to fair trial, not child's right to privacy

Constitutional complications continue to snarl sexual-abuse trials involving children. ``It's a clash of fundamental rights'' between a defendant's right to a fair trial and a child witness's right to privacy, says Gary Melton, nationally renowned expert on children's testimony.

Recent decisions in child-abuse cases have tended to reinforce ``as supreme'' a defendant's right to a fair and impartial trial, says Dr. Melton, director of the University of Nebraska's law-psychology program.

``Privacy interests of child witnesses don't rise to the constitutional [level],'' Melton says, but a defendant's right to a fair and impartial trial is guaranteed by the Constitution.

The Nebraska legal psychologist is one of more than 300 judicial, legal, medical, and children's-services specialists attending the first nationwide conference on sexual abuse of youngsters, being held here this week. A spate of cases around the United States -- including a highly-publicized one in Manhattan Beach, Calif. -- are temporarily in limbo due to courtroom-related controversies over special treatment for young, or infant, witnesses.

Current disputes revolve around videotaped testimony, children's competency to testify, the use of expert witnesses, the admissibility of hearsay evidence, and press access to cases involving sexual abuse.

In Minneapolis, District Court Judge Linsay G. Arthur predicts the constitutional dilemma will continue to plague sexual-abuse cases. In addition, spiraling costs of malpractice suits against psychiatrists and prosecuting lawyers will influence the outcome of future cases.

John M. Yeman, judge of the Sixth Judicial Circuit in Missouri, says ``prevention [of child abuse] is our business. And we can accomplish it.''

Judge Yeman is president of the National Council of Juvenile and Family Court Judges (NCJFCJ), a group actively seeking legal solutions to sexual abuse.

He joins Dr. Melton in cautioning prosecutors, judges, and those involved in children's services to find remedies that bring justice for children but don't trample on defendants' rights.

Seventeen states currently allow pretrial videotaped depositions of a child's testimony. Five states permit closed-circuit television where a defendant is hidden from view of a child witness during court proceedings.

Many states, however, are still divided over the basic constitutional issue of whether the accused has a right to see the accuser face to face in open court.

Iowa, New Jersey, and Missouri, for example, make some provision for shielding a child from direct confrontation with an adult defendant. Kentucky, on the other hand, requires open courtroom appearances by both.

Expert witnesses, including those who present psychiatric testimony, have generally been restricted to evaluations of characteristics of sexually-abused children and abusers. But most states disallow testimony predicting the probable guilt or innocence of a defendant.

Perhaps the most controversial question surrounding sexual-abuse cases is whether young children accurately describe abuse situations. Melton says evaluations range from the assumption that ``a child never lies about this sort of thing'' to the belief that very young children, particularly preschoolers, tend to fantasize. It is also often assumed that children are very vulnerable to adult suggestions about sexual abuse.

Melton's research indicates that children don't deliberately lie to any greater extent than adults. He says they may, however, be influenced to say what they think will please their elders.

Pamela E. Langelier, director of the University of Vermont's child forensic service, warns that children's testimony should be viewed with caution.

But Dr. Langelier -- who interviews hundreds of children each year in connection with sexual-abuse and custody cases -- says a distinction should be drawn between a young child's lying and ``not telling the whole truth.''

She points out that some youngsters misinterpret adult actions or are deluded by their elders so that they confuse fact and fantasy.

``Also, children are likely to take back [recant testimony] if they think somebody they love will be hurt,'' Langelier points out. This often happens in cases involving incest, she explains.

Robert W. ten Bensel, director of the University of Minnesota's program in maternal and child health, says society has a right to be outraged by sexual abuse. But he believes the real solution lies in greater emphasis on a commitment to protecting the young.

``Children have special needs for nurturing, and the family is the best place to do this,'' Dr. ten Bensel explains. ``Sexual abuse is totally disrespectful to the child. It must be seen as a value issue, a moral issue, a religious issue,'' he adds.

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