The child-abuser's admission of guilt

THE social worker's report was certainly not going to help the defendant, the judge thought. Even assuming (and allowing for) a tendency by the agency to accept easily and uncritically any accusatory statement by a child, the evidence here seemed overwhelming. At this stage, the judge was merely examining the agency's file, ordinarily confidential, to determine if in fairness the accused ought to have access to it.

A few weeks later, the judge met prosecutor, defense counsel, and the defendant in a ``litigation control conference.'' The trial date had already been set; the conference sought simply to learn if any problems needed ironing out before trial: disputes over evidence, or the lineup of witnesses, or scheduling difficulties.

Such a conference serves an additional purpose: exploring the possibility of an admission of guilt, thus ending the matter before trial.

A plea change occurs in about 85 percent of all prosecutions, regardless of the offense charged. Frequently the defendant defers the decision to take the plunge until just before trial. Perhaps he hopes to nudge the prosecutor toward recommending a lighter sentence. Maybe he is merely trying to stave off the inevitable. Possibly, he simply cannot bring himself to admit that he has acted as the government's witnesses say he has.

The inability to face reality is particularly obvious when the offense alleged is sexual abuse of a child. (These cases currently amount to between 10 and 20 percent of the judge's criminal docket.) For a complex mix of reasons, a man who, by any objective view of the evidence, has indeed committed the crime will often persist in denying his participation.

Now the essence of a guilty plea is the defendant's admission, in open court, that the accusations against him are true. To ensure that this admission is willing, free, and voluntary, the product of a rational decision reached only after consulting counsel and with full knowlege of the possible consequences, the judge must interrogate the defendant at length. A proper ``plea colloquy'' can take 20 minutes.

Unless he is exceptionally tough-minded, even a frequent communicant at the table of justices finds the experience deeply unsettling. The forced openness of the confession, and the certainty of punishment (coupled, frequently, with the uncertainty of its severity), combine to produce extraordinary psychological pressures.

This is not to urge sympathy for the plea-changing defendant. After all, he has, by definition, committed the crime. The point, rather, is that if owning up is such a difficult feat for the ``ordinary'' offender, how much more mind-locking for the child abuser who (as research is beginning more and more to reveal) almost certainly has a history of inappropriate behavior with children, a necessarily ingrained habit of concealing it.

So what? you say. It was even rougher on his victim.

True. But if the defendant does not plead, the abuse may continue.

First, the child will have to come into court to testify and to submit to cross-examination, with all the attendant psychological trauma. Second, even though the child may be telling the truth, the jury may find sufficent reasonable doubt to prevent conviction. It is worth pondering the effect on an honest child of formalized institutional adult disbelief.

A judge, therefore, must encourage the, in fact, guilty defendant to accept reality and to admit the truth. Yet he must also scrupulously avoid pressuring any defendant (guilty or innocent) into giving up his right to trial.

To meet these conflicting goals, a judge will sometimes allow a defendant to say, in effect, ``Although I am not guilty, the evidence is so strong that I will admit guilt, hoping that, under the circumstances, you will punish me less severely than you would after a trial.''

This offers something to everyone. The defendant can continue to ignore the agonizing truth; the child need not undergo the testimonial ordeal; and society observes deterrent punishment. All at no greater cost than a little judicial uncertainty and moral discomfort.

Preparing to explore with the lawyers and the defendant the prospects of ending the case without trial, the judge could not quite deny that the trade-off was fair.

Hiller B. Zobel sits on the Massacusetts Superior Court.

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