Child-abuse case a rigorous test of fairness. Court must be sensitive to children's needs yet protect defendants

Not only seven defendants but the United States legal system may be judged when a child sex-abuse case goes before a jury in coming months. After the longest and most expensive pretrial hearing in California history -- 18 months and $4 million -- Los Angeles Municipal Court judge Aviva K. Bobb has ruled that former teachers and administrators of the McMartin Pre-School must face a jury on charges of sexually abusing 14 children who had been enrolled in the nursery facility. Judge Bobb said there was ``probable cause'' that the defendants had abused some or all of the youngsters. Arraignment is scheduled for Jan. 23 in Los Angeles.

Throughout the preliminary hearings, all of the defendants have proclaimed their innocence. Some of the counts, which have ranged from rape to sodomy, have been dropped for lack of sufficient evidence, but over 130 still remain. The prosecution's case rests largely on the direct testimony of the children.

In an unusual pretrial tactical move, defense attorneys presented their own witnesses in an attempt to shatter the credibility of the children's testimony and the methods of counselors and others who have interviewed the alleged victims.

The decision to go to trial in this case comes in the wake of widespread national publicity about sexual abuse of children and extensive debate over what to do about it.

The National Council of Juvenile and Family Court Judges held first-ever conferences on the subject during 1985 in Burlington, Vt., and Kansas City, Mo.

Jurists have raised questions of how the courtroom process can best handle such delicate cases -- which often involve taking testimony from preschool youngsters.

Judges, juvenile workers, and legal experts have surfaced several dilemmas:

Judicial authorities generally hold that children, particularly very young ones, should receive special treatment in the courtroom -- including the opportunity to testify in surroundings that will not intimidate them. But they also stress that care for the young must be balanced against defendants' rights to a fair trial and the opportunity to face accusers.

Experts are divided over whether the testimony of a young child should be accepted by the court without corroboration. Some child psychiatrists and counselors insist that young people are inclined to tell the truth. Others say children are very impressionable and are easily influenced by what they feel their parents and other trusted adults want them to say and do.

The use of videotapes for the taking of a child's testimony is allowed in many states. However, the practice is controversial in terms of defense access and how juries should be instructed to weigh such testimony.

A nonlegal issue that has surfaced in the McMartin case is the tremendous financial cost to defendants. All of them are former teachers or day-care administrators in middle-income circumstances. Most of the seven defendants have spent their life savings and been forced to sell their homes and other possessions in order to mount a defense.

Defendants point out that similar charges in other places have been found to be spurious. For example, charges in another highly publicized case in Scott County, Minn., were dropped last year when a pair of teen-age girls admitted that they had fabricated accusations of sexual abuse against 20 adults.

Prosecutors stress, however, that situations of child abuse are underreported and underprosecuted in the US. They say that incidents of sexual molestation tend to be even more suppressed by youngsters.

The number of alleged cases of child abuse coming to the attention of authorities has risen in recent years to an estimated 250,000 incidents. But some judges believe a portion of this increase represents false reports or misinterpretations of events resulting from broader publicity about the subject.

Federal legislation has focused mainly on curbing the distribution of child pornography, which has been related to many abuse cases. In the past two years, most states have concentrated their efforts on stricter laws that require reporting of suspected child abuse.

Suggested punishments for those convicted of sexual abuse range from increased reliance on rehabilitation, particularly when the crime is perpetrated within a family, to longer prison terms, castration, and even imposition of the death penalty.

Defendants in the McMartin case, if convicted, face maximum penalties of up to eight years in prison on each abuse charge.

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