Child abuse case reveals hurdles to convictions
By PATRICK McARDLE Herald Staff | January 12,2007
BENNINGTON — A plea deal this week that allows Andrew C. James to avoid jail after admitting to sexually assaulting a 4-year-old boy is calling attention to what prosecutors and others say is a common problem they face when trying to put child sex offenders behind bars.
Obtaining a conviction without the child's testimony is extremely difficult, especially in the wake of a 2004 U.S. Supreme Court decision that makes it hard to offer testimony unless the witness is available during an open court session.
And prosecutors who place a child on the stand risk traumatizing the victim a second time by making him or her relive the attack, they say.
"It's not only traumatizing, you don't know what the outcome will be," said Dianne Jabar, legal issues coordinator for the Vermont Network Against Domestic and Sexual Violence in Montpelier. "It's very risky. You could put the child and the family through additional trauma and the (defendant) could still get acquitted."
Others say those challenges don't make it impossible for a prosecutor to obtain a conviction.
"It's hard to do, but it's doable," said Allison Turkel, senior attorney and chief of training for the National Center for Prosecution of Child Abuse in Alexandria, Va. "It's not easy to bring a case like this to trial. It takes a lot of investigation. It takes a lot of work. It takes a lot of chutzpah. The prosecutor needs a lot of training, a lot of heart."
On Monday, James, 37, of Manchester, pleaded guilty in Bennington District Court to a felony charge of aggravated sexual assault on a victim under the age of 10. Judge David Howard sentenced James to 30 months to five years in prison, with all of the jail time suspended.
Under a plea agreement with the state, James agreed to complete sex offender treatment to the satisfaction of his probation officer; to be listed on the Vermont Sex Offender Registry; and to pay a $22 surcharge. If he fails to complete treatment, which typically takes two years, he can be forced to serve his full jail term.
Bennington County Deputy State's Attorney Andrew Costello, who prosecuted the case, said he agreed to the deal to spare the now-5-year-old victim from having to testify. His boss, State's Attorney William Wright, said his office had gotten a "desirable result" from the James' case.
"We knew it was going to be a difficult case to move forward," Wright said. "What we got out of it is something we think is appropriate."
A victims' advocate took a different view.
Joan Sakalas, director of Project Against Violent Encounters in Bennington County, called the sentence "bizarre" and said she and the people she works with were "fairly outraged" that James' might not serve any jail time. She and her colleagues also are concerned about the message his sentence will send to sexual predators.
"It's bizarre," she said. "It suggests nothing was learned from the Cashman decision." In January 2006, Burlington County District Court Judge Edward Cashman attracted national attention when he sentenced Mark Hulett to at least 60 days in prison for sexually assaulting a 7-year-old girl.
Sakalas said her group has worked with therapists who are skilled in dealing with children traumatized by abuse. She questioned whether the state's attorney's office had explored using such a therapist, or considered allowing the boy to testify by closed-circuit television, before it offered a plea deal to James.
Wright said he had always been willing to prosecute those who prey on children, even though the rules of evidence make it difficult.
"Historically, this office hasn't been afraid to pursue cases like this," he said.
Turkel, whose center works with prosecutors handling child abuse cases, said very young victims present special problems for prosecutors, especially since the high court's decision in Washington v. Crawford, which severely limits the admissibility of "hearsay" evidence, making it difficult to accept a victim's testimony without the victim in court.
That court case had nothing to do with domestic violence or child abuse, Turkel said. Nonetheless, those are the kinds of cases where the decision has had the strongest effect. Because it was a Supreme Court decision, there is no legislative remedy.
The center encourages prosecutors to create a "child-centered" court proceeding where children aren't intimidated by questions they can't understand, or by furniture that's too large for them.
In the end, however, even a well-prepared child is a child. Jabar, whose Montpelier-based network is a coalition of information sources, said child sexual abuse cases are among the most "horrendous" to come through the criminal justice system because of the difficulty getting reliable testimony from children.
Before coming to the network, Jabar was an advocate working primarily with mothers in abuse cases in Chittenden County. In her seven years in that job, she couldn't recall any case where prosecutors put a very young child on the witness stand.
Wright, the Bennington County State's Attorney, said his experience was similar and that was why his office reached a plea agreement.
Vermont law allows some hearsay exceptions for very young victims and even recorded or close-circuit testimony, but only under very limited conditions.
Because of a paperwork error, the order requiring James to abide by sex offender conditions was not communicated to the Department of Probation and Parole on Monday, when James was sentenced. Wright said the mistake was corrected Thursday. Under the sex offender conditions, James is forbidden to have unapproved contact with anyone under the age of 18, or with his victim.
For Sakalas, James' sentence sends a discouraging message to those who have been abused and are considering coming forward. They may view his sentence as light, and be concerned that their case could have a similar outcome after taking years to complete.
"This is a warning," Sakalas said. "It's something people should get excited about."
Contact Patrick McArdle at Patrick.firstname.lastname@example.org