Rush to protect abused children may trample rights of accused. Isolating young victims may obstruct due process

A sad-eyed girl sidled up to Frank Mahady and forcefully proclaimed: ``This shouldn't be happening to me. I'm only 13 years old!'' The setting was district court judge Frank Mahady's Vermont courtroom. The youngster was a victim-witness in the trial of her stepfather, who was alleged to have sexually assaulted her over a period of several years. When the girl finally reported this abuse to her mother, she was called a liar -- and told to leave home.

Judge Mahady related this experience to 80 juvenile- and family-court jurists last week. The jurists, representing all 50 states, had gathered at the National Judicial College here to discuss how to handle delicate cases involving children.

The scenario the Vermont judge presented was not new to most of them. Prosecutions of suspected sexual abuse of young children have, according to some crime estimates, tripled across the United States in the last two years.

This trend has sparked controversy over special court procedures used in cases involving young people. A specific concern is the impact on the rights of accused adults in the face of videotaped testimony or informal (in-chamber) proceedings used to protect the privacy and emotional well-being of child victims.

This debate comes at the same time as the emergence of so-called victims' ``bills of rights'' in most states. These bills give special attention to victims -- including financial reimbursement for physical and emotional harm and the privilege of participating in pretrial hearings, plea bargaining, and sentencing.

Some judges at the gathering in Reno indicated that while these protections are needed, especially for child victims, there is inadequate attention being paid to the rights of the accused.

Lindsay A. Arthur, chief judge of the district court in Minneapolis, cites an aborted child sexual-abuse prosecution in his state where evidence was deemed shabby, witnesses unreliable, and a district attorney's procedures questionable. Accused townspeople have since sued the county for damages and the prosecutor has been under investigation.

Similar charges are now being made by defendants in a highly publicized case in southern California where workers at a preschool are accused of the sexual abuse.

Judge Arthur -- who heads a panel of jurists attempting to establish guidelines for judges in these types of cases -- says there is no hard evidence that sexual abuse is on the increase in the US. But he indicates that reporting of such crimes to authorities and media attention have grown significantly.

F. A. Gossett III, who presides over a county courtroom in Blair, Neb., is concerned about community reaction to allegations of sexual abuse of children and the frequent assumption of guilt even before a judge and a jury have a chance to weigh the evidence.

``Once the charge is made, it's all over,'' says Judge Gossett.

John C. Chatsley, chief of the public protection bureau of the attorney general's office in Massachusetts, is eager to shore up victims' rights. But he warns that ``some measures raise serious due-process questions,'' such as a defendant's right to cross-examine accusers, full access to the prosecution's case, and the right to directly rebut accusations.

Mr. Chatsley, a former judge, predicts that a spate of state legislation pending across the US will significantly expand victims' rights -- among other things broadening confidentiality statutes in child-related cases and providing more social services and fiscal assistance to both juvenile and adult victims.

Most of the judges at the gathering agreed that this is appropriate. ``Constructive reforms are needed,'' says Judge Mahady. ``But they must be accomplished with caution and within the context of a free society.''

The Vermont judge points out that all defendants -- regardless of the repugnance of the crime of which they are accused -- have a constitutional right to a fair trial, a public trial, and the right to face their accusers in court.

He urges his fellow jurists not to stretch the law by making special arrangements in children's cases as many do in the light of increased concern about sexual abuse.

``Judges beware,'' Judge Mahady says. ``When they come for the child molesters without fundamental regard for due process, protest we must!''

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