The 10-year-old girl sat frozen on the witness stand.

The prosecutor had just asked her to describe her sexual assault by the man seated at the defense table nearby.

Most of the people in the Auburn courtroom were strangers to the girl.

She was asked to talk about her private body parts.

The girl couldn’t speak.

When she was allowed at last to step down from the witness stand, the girl bolted from the courtroom.

She fled to a darkened room where she hid under a chair, nearly catatonic, pressing her hands over her ears, her eyes shut, as she rocked back and forth.

“It took multiple support people to calm her down enough to leave that room,” Androscoggin County Deputy District Attorney Katherine Bozeman testified before the Maine Legislature’s Judiciary Committee in March.

The girl “never was able to testify about what happened to her,” Bozeman said,  “although her siblings, who were also victims, did (testify) and the defendant was convicted of sexually abusing two of them.”

Bozeman, who prosecutes sexual assault cases in Androscoggin County, was testifying in support of a bill that would allow prosecutors to use videotaped interviews of child victims of sexually-based crimes at trial instead of having to call children to the witness stand to describe those crimes in open court.

The law, which carves out an exception to hearsay statements under the Maine Rules of Evidence does, however, require that the alleged victim be available for cross-examination at trial.

While prosecutors, victim advocates and doctors lined up in support of the bill, trial attorneys, criminal defense lawyers, a civil liberties group and a judicial branch representative voiced their opposition.

Proponents claim the law should be able to withstand constitutional scrutiny, but several criminal defense attorneys vowed to challenge it on the basis of the “confrontation clause” of the 6th Amendment that entitles defendants to be confronted by their accusers in criminal prosecutions.

The bill was voted out of committee in May in a divided report. It was passed by the Maine Senate and, two days later, the Maine House.

Gov. Janet Mills signed the bill on June 16. The law is due to take effect in September.

In a recent interview with the Sun Journal, Bozeman said that “as a sex crimes prosecutor, what I very frequently see is children essentially having an inability to (testify in open court) even though I believe that sexual abuse happened to them. They just can’t talk about that when put into that completely non-child-friendly atmosphere.”

Bozeman said the forensic interviewers at Maine’s seven nationally accredited Children’s Advocacy Centers do the best job of putting children at ease enough to engender trust that leads to full and honest descriptions of events.

“What I have always seen is that those interactions with the kiddos at the CAC are really where the best, most accurate and detailed evidence of disclosures come from,” Bozeman said.

LESS TRAUMATIC FOR CHILDREN

She said the change in law should go a long way toward lessening the possible negative effects that speaking repeatedly about sexual abuse trauma can have on children.

“I think it will be hugely beneficial to the well-being of children that have been victimized,” she said. “I can personally say from experience that I have had so many instances where, either in preparing a child for direct examination or in the course of a trial or immediately before or after their testimony, I see full-out mental breakdowns and it is clear that we’re not doing right by these children in the way that we are currently handling these cases.”

The new law isn’t likely to change the number of cases of reported child sexual abuse that land on her desk, Bozeman said, but she hopes it could boost the number of cases she can prosecute.

“Hopefully, this will allow us to bring more cases to trial because we won’t have those same hurdles to get over, specifically, families deciding that they’re unwilling to put their child through that or setting up for the trial knowing that it’s going to take a significant toll on the child’s mental health to do so.”

Bozeman said there have been times when her office has brought charges believing the child victim would be able to testify in court. But, as that trial date grows closer, “we’ve had children be suicidal or have complete mental breakdowns to the point that, as things are becoming more real in the sense of having to testify, parents or children just can’t do it anymore,” she said.

While she can’t offer an exact percentage of cases where that’s happened, Bozeman said it is “not an uncommon thing.”

Lucia Chomeau Hunt, directing attorney of Family Law and Victim Rights at Pine Tree Legal Assistance, Inc., a nonprofit group that provides legal services to low-income people, told the legislative committee that her office handles child sexual abuse claims weekly and supports the new law.

Melissa Martin, spokeswoman for Maine Coalition Against Sexual Assault told the Sun Journal that the passage of the law puts Maine more in line with other states in allowing for videotaped interviews in these cases to be allowed at trial.

“I would just say that, prior to passing this bill, (Maine was) one of a very small minority of states that didn’t have a clear path to allow statements that children made about child sexual assault into evidence without them having to come into the courtroom,” Martin said.

The range of accommodation varies from state to state, Martin said.

On the more liberal end of the spectrum, some states allow at trial statements about sexual assault made by a child to a mother or a teacher. At the other end, some state’s might allow a child victim to appear as a witness at trial live by videoconference from a different location, Martin said.

“And then there’s sort of everything in between,” she said.

Donna Strickler, executive director of the Sexual Assault Crisis and Support Center in Winthrop, said in an interview that, as a child sexual abuse survivor and someone who has worked with children who have been sexually assaulted and had to testify at trial, she can imagine the effect this law could have on future child sexual abuse survivors.

“I know, not just anecdotally, but I know that the difference that this can make for a child and family to have had this forensic interview happen, which is done in a very trauma-informed way … by an expert and being able to utilize that tape and that information in that interview, helps the child for sure because if it limits the amount of time that the child needs to be engaged in this process, there is no doubt from a trauma perspective, that that’s a positive thing.”

STRIKING THE RIGHT BALANCE

Strickler said the forensic interview performed at a Children’s Advocacy Center is “a very fact based, neutral, unbiased process.”

“Requiring a child to testify in court about past sexual abuse in front of a room of strangers, as well as his or her abuser can be painful, frightening and difficult,” Maine Prosecutors Association Executive Director Shira Burns testified before the committee.

“Research shows that testifying in court is traumatizing for children and that this trauma can diminish the quality and reliability of a child’s testimony,” she said.

Burns said prosecutors of sexual assaults against children face the dilemma of balancing a defendant’s 6th Amendment right with the “negative effects” that testifying at trial has on child victims.

“The language (in the bill) was actually derived from looking at statutes in many other states that protect their children throughout the judicial system and allow prior child statements into evidence,” she testified.

“This bill doesn’t go as far as many other states that have broader statutes of admissibility of children’s statements, but this is a great next step from what we already have in statute that allows for accommodations in court for child testimony and other statutes that directly state certain evidence is admissible in court.”

The new law achieves the right balance of protecting victims with defendants’ rights, Burns said.

“It allows for the admissibility of recorded forensic interviews, which are conducted by competently-trained professionals who employ techniques developed through years of research as part of a larger investigative process that greatly aids in the discovery of crucial facts, but requires the availability of the witness to be cross-examined,” she said. “Many courts throughout our country have weighed in on this process and all agree, if the witness is available for cross-examination, the process is constitutional.”

Burns cited a decision by the Maine Supreme Judicial Court which held that when the accuser is available for cross-examination at trial, a defendant’s 6th Amendment confrontation right isn’t compromised.

Although videotaped forensic interviews will be allowed at trial, those interviews will still be subject to all of the other rules of evidence, Burns said, including other hearsay prohibitions.

Dr. Sidney Sewall, spokeswoman for the Maine Chapter of the American Academy of Pediatrics, testified that the new law “contains such safeguards of defendants’ due process rights. Similar bills have passed constitutional tests in multiple other states.”

In 2021, 57% of the children interviewed at Maine’s Children’s Advocacy Centers were under the age of 12 years old, according to Molly Louison, a forensic interviewer at the Children’s Advocacy Center of Cumberland County.

Of those, 23% were under 6 years old. “The youngest child I have seen prepared to testify was 7 years old,” Louison said.

Staci Converse, a managing attorney at Disability Rights Maine, has testified on behalf of people with disabilities.

The law defines a” protected person” as someone who at the time of a recording of a forensic interview has not attained 18 years of age or is an adult who is eligible for protective services.

“This bill is of paramount importance for survivors of abuse, neglect, exploitation and sexual assault who have disabilities,” Converse said.

“Existing studies emphasize the fact that disability is linked to a higher likelihood of experiencing violence, in particular, sexual violence. For too long, these survivors have been forced to endure the trauma of reliving their experience in courtrooms and administrative proceedings. This bill is an essential step towards preventing such retraumatization,” Converse said.

Lewiston police Detective Joseph Philippon, who investigates child physical and sexual abuse crimes in Lewiston, said in an interview that before passage of this law the judicial system was “intentionally or unintentionally … putting a hand over the victims’ mouths telling them to be quiet.”

He said there was little accountability for those crimes due to the heavy burden placed on the child witnesses.

“We know that there’s a decent likelihood of reoffending” by those who commit sexual assault crimes, he said.

“If we can’t have intervention on this case, then unfortunately that leaves us waiting for the next case. So, I believe that, with this bill’s passage, the victims that previously were scared or went unheard will now be heard. And I believe that perpetrators of sexual violence, in particular against young children, will be held to account as opposed to us having to wait for the next time for them to offend, hoping that the stars align for us when it comes to a victim’s testimony and their comfort level in testifying openly, in public court,” Philippon said.

“Our ability to prosecute and hold people accountable will increase because of this” law, said Philippon, who estimated he handles up to 40 cases a year and is one of three detectives who investigate these types of cases at the department.

DANGEROUS PRECEDENT

Susan Faunce, president of the Maine Trial Lawyers Association, said passing a law in Augusta is the wrong way to go about amending rules of evidence that must be followed at trial.

“The hearsay rules in our Maine Rules of Evidence are detailed, complex, and have been developed and adopted over many years — decades even — through a long established procedure,” Faunce said.

“This process involves careful consideration by the Advisory Committee on the Rules of Evidence, a special committee convened by the chief justice of the Maine Supreme Judicial Court. The committee is comprised of prosecutors, defense lawyers, and judges,” Faunce said.

“By permitting the Legislature to be involved in crafting rules of evidence, the Legislature would be abandoning an established practice which could lead to legal complications in the future,” she said.

Julie Finn, a legislative analyst who represents the Maine courts, echoed Faunce’s concerns.

“While the judicial branch does not disagree that there can be a statutorily created exception to the hearsay rule, we do have concerns with making certain evidence automatically admissible by statute, without consideration by a judge,” she said.

“Deciding what is and is not admissible into evidence is clearly a function of the presiding judge. We respectfully suggest that requiring by statute that certain evidence is admissible violates the doctrine of separation of powers.”

Walter McKee, who serves as an officer of the Maine Association of Criminal Defense Lawyers, went further with his objections.

“It relieves the state of any obligation of presenting direct testimony from the actual alleged victim, which is unheard of,” he said. “They can simply play a recording of the alleged victim and that’s all they have to do to meet their burden of proof.”

McKee, who has defended clients charged with sex crimes involving children dozens of times in his three decades as criminal defense attorney, said the passage of the law doesn’t end the debate.

“I anticipate there will be constitutional challenges. There is a provision that requires the alleged victim to be (available to be) cross-examined. And so the state may take the view that that solves the constitutional problem. I don’t believe it does. And I will challenge it when it’s first used,” he said.

“I’ve spoken with other criminal defense lawyers who will do the same.”

McKee said the Legislature “is not supposed to be making rules for the court. The court makes those rules.”

He said the new law was never brought to the judicial committee for consideration. In fact, he said it was “not even suggested or mentioned. They bypassed that committee entirely. So now they have opened the door to changes in the evidence rules by any side in the Legislature.”

He called that a dangerous precedent.

“”You make them in a rules committee that is deliberative, involves judges, defense lawyers, and prosecutors who use these rules every day,” he said.

McKee said only a minority of states allow the kind of hearsay exception passed by state lawmakers.

“Maine has now joined the minority,” he said.

Hunter J. Tzovarras, a Bangor criminal defense attorney, also raised concerns about politicizing judicial rule-making.

“The process, as it stands now, is not a political process at all,” he testified.

“I have concerns about whether having the Legislature involved in evidentiary rulemaking is an appropriate function, especially when there are changes from time to time which, if the process was to be Legislature driven, could mean that there would be changes in our basic rules of evidence depending on the party in power.

Meagan Sway, policy director for the American Civil Liberties Union of Maine, testified that “a rule like this would undermine a foundational principle of fair criminal trials: that the burden of proving the crime and calling witnesses rests with the state, not on the defense. This bill would make the defense, not the state, responsible for calling the pre-recorded witness for cross-examination.”

She went on to say: “This would ensure that witnesses would essentially be allowed to testify twice in the same trial (once through a pre-recorded video, and again in court). The confrontation clause is a crucial protection that has been a feature of legal systems since Roman times.”

Laura Yustak, who spoke for the Criminal Law Advisory Commission, which was created by the Legislature and whose members are appointed by Maine’s attorney general, didn’t take a position on the bill.

But she raised several issues about possible ambiguities in the language of the statute.

Specifically, anyone under the age of 18 would automatically be a “protected person,” without consideration of individualized factors, Yustak said.

“This is a broad category without regard to witness competency, traditionally a matter within the purview of the judge, and unrelated to age of the witness as an element of any crime, including sexual assault crimes against children.”

Regarding adult “protected persons,” Yustak said, “It is not clear how the determination would be made as to whether a person is “eligible” for services (for example, if a person is not already receiving services) and therefore protected.”

Lewiston criminal defense attorney George Hess called the law a “knife in the back” of a defendant.

“I think it’s totally unfair,” he said.

“I mean, it’s unfortunate that a child has to be put in that position, but they’re the primary witness,” he said. “Defendants are up against a lot of hurdles as it is.”

Hess called the forensic interviewers “partisan” and said what will be allowed at trial as direct evidence is “not a neutral interview. It’s a CAC professional who’s obviously sympathetic toward the child. So, it’s a biased interview.”

Hess, who said he’s defended many sex offences involving children as young as 6 years old, said his strategy is to carefully prepare the questions he wants to ask to “keep the child steered toward where I wanted the child to go and to do it in a quiet, friendly manner. And that’s generally been pretty effective.”

Hess said he doesn’t believe substituting a videotaped interview for direct testimony will necessarily be advantageous to the prosecution because that interview may not elicit from the child all of the information a prosecutor might hope to introduce as evidence at trial.

“The jury’s looking at a video. They’re not looking at the child being gently led by the prosecutor’s questions,” he said.

Hess said if he were to defend a case where a videotaped interview is presented as direct testimony, he would raise an objection to its introduction at trial to preserve it on the record under state and federal constitutional grounds.

He said picking the right case and marshalling the services of the best appellate attorney would be important.

Copy the Story Link