During cross-examination of the son at trial the defense obtained a compelling example of the power of his imagination.
The accusation: That Max, a college student, molested 10-year-old Billy while sharing a bed during Max’s visits to Billy’s family.
The charge: Child Molestation in the First Degree.
The possible sentence: From nine years to life in prison.
The defense David Marshall presented: When Billy learned that someone figured Max would not share a bed with him unless it was to molest him, his keen sexual anxieties and exceptional imagination constructed a belief that this had happened.
The trial result: The jury acquitted Max in less than an hour.
What helped win the case: In cross-examining Billy at trial, David obtained a compelling example of the power of Billy’s imagination.
Billy testified to a confrontation in which he had thought his father was holding “a shotgun—but it turned out to be just a telephone. He was calling the sheriff.” Billy went on indignantly, “A father coming at his family with a gun… .That’s just wrong!”
In closing argument, David pointed out that Billy’s imagination and fear had turned a telephone into a shotgun. And even though at trial he knew it had really been a telephone, he was still angry at his father for menacing the family with a shotgun!
Usually when a child incorrectly alleges that he has been molested, someone close to him—or the child himself—has something to gain from the accusation. A recent case I tried in Chehalis, Washington, though, shows that this is not always so. In that case a boy and his mother had every reason to want the allegation to be false. Yet they convinced themselves it was true.
Tammy and Sylvia (pseudonyms, like the names that follow) had been best friends for years—”closer than sisters,” Tammy said. Sylia didn’t live in Chehalis, but she and her children visited Tammy and her family there often.
Billy, Tammy’s son, was an anxious child who could not get much attention from his father. From about age four, though, Billy did get Sylvia’s son Max, who was ten years older, to play with him whenever Sylvia brought Max along on a visit. Max became Billy’s “hero,” Tammy said. Billy referred to Max as his uncle.
Billy did not seek Max’s company only while awake. He would get up at night and climb onto the sofa or into the bed where Max was sleeping. Max slept soundly even with Billy alongside, so he allowed Billy to share a bed with him routinely when he visited. Sometimes Max would start the night without Billy in his bed, but even then he would usually awaken in the morning to find that Billy had joined him.
Billy’s parents divorced when he was nine. A year later, his father, Brad, got a girlfriend, Lilly. In September 2005, when Billy was ten, Lilly began spending nights at Brad’s—including Billy’s visitation nights. One night as Billy lay in bed, he heard thumping sounds and heavy breathing emanate from his father’s bedroom. From movies he had seen, Billy knew what this meant, and it scared him, he told his mother.
In January 2006, Tammy put Billy in therapy because of distress he felt concerning his father—including his distress that Brad and Lilly would have sex during his visitation.
By this time, Max was 20 and a college football player.
Max still tolerated Billy’s company in bed whenever he visited Tammy and her children. Lilly, Brad’s girlfriend, learned of this sleeping arrangement from Billy’s sister.
In April or May 2006, Tammy and Lilly had an argument on the phone. Lilly responded to one of Tammy’s barbs by saying, “Well, at least I don’t let a twenty-year-old sleep with my son!” Billy overheard the argument. He found out from his mother that Lilly thought Max would not consent to sleep with him unless it was to molest him.
Max next visited Tammy and her children in June 2006. In the days just before Max’s arrival, Billy asked Tammy what “molest” meant. She asked him what he thought it meant. He said that it was when someone touches a child’s private parts for a bad reason. She said that was right and asked him why he had asked what it meant. “Just wondering,” he replied.
On Max’s first night at Tammy’s home, Billy chose to start the night in a sleeping bag on the floor next to his bed. Max slept in the bed. In the morning, Max found Billy, still inside the sleeping bag, on the bed with him. Max spent the day socializing with Tammy and playing with Billy and his sister.
That evening, Billy told his mother that Max had lifted him and the sleeping bag onto the bed the night before and had reached into his underpants and grabbed his penis. Tammy couldn’t believe it and didn’t want to believe it. Max was her best friend’s son. He was also Billy’s hero. In fact, she had recently named him her children’s godfather, in place of their original godfather. She had even asked Max to talk to Billy about puberty and other sensitive subjects on which she felt Brad would likely not provide paternal guidance.
Tammy immediately told Max what Billy said he had done. Tears welled up in Max’s eyes as he denied the accusation. Tammy had him speak to Billy about it. Max told Billy child molestation was a serious thing. He said, “I wouldn’t do that to you. If anybody did it to you, I’d kick his ass!” Billy then told his mother that Max actually had not put his hand in Billy’s underpants or touched his privates.
Max spent most of the next couple of days at Tammy’s home, but he and Billy slept in separate rooms.
Several days after Max left, Tammy recounted these events to Sylvia, Max’s mother. Sylvia told her that in high school Max had been accused of touching a child’s privates while giving him a swim lesson. She also told her that Max’s step-father, a former police officer, believed that suspects who cry when denying child sex abuse are likely guilty.
Tammy relayed Sylvia’s statements to Billy. She also told him that Max himself had been molested as a child (in fact, he had not) and that he had never received therapy for it. Billy then reverted to his original statement that Max had grabbed his penis. He added that Max had done it during two earlier overnight stays, too.
Max was charged with three counts of Child Molestation in the First Degree.
As Max’s lawyer, I interviewed Billy 14 months later, in August 2007. Billy told me that at first he had wondered whether he had just dreamt “or hallucinated” that Max had molested him. The morning after the night in the sleeping bag, though, he had seen “red prints”—just like fingerprints—on his penis and testicles. This proved to him that Max really had “scrunched” his penis the night before. And if he had done it then, Billy decided, he must also have done it the two earlier times Billy recalled having wondered whether Max had molested him overnight.
Billy acknowledged in the interview that he had never before told anyone about the red fingerprints.
In my opening statement at Billy’s trial, I pointed to Lilly’s argument with Tammy as the key event in the case. Her suggestion that Max must have a sexual motive for sharing a bed with Billy had fallen like a seed into the fertile soil of Billy’s sexual anxieties. For months he had been haunted by the sounds of Lilly and his father’s passion. His imagination could not let go the dread thought that Max would prey upon him as he slept. When Max next stayed overnight, the thought had grown real enough that he reported it to his mother.
The testimony of the child complainant often determines the outcome in child sex abuse trials. So it was here. On direct examination Billy asserted his molestation as a fact, not a dream, hallucination, or suspicion. On cross-examination, though, he acknowledged that he had wondered whether Max had molested him until the red fingerprints proved it.
In my investigation, I had learned that Billy had witnessed some sort of late-night confrontation between his parents that had culminated with his mother driving her car onto his father’s lawn to vandalize it. I had heard several versions of this event but none from Billy. I sensed this was the right witness and the right time for me to break two rules of prudent cross-examination: 1) don’t ask the question if you don’t know the answer the witness will give, and 2) ask only leading questions. I simply asked Billy to tell us all what had happened that night.
Of all the versions I heard, the one Billy gave then best supported my opening statement. He testified his mother had become angry at his father late that night and had driven with both her children to Brad’s house. She had stormed into the house and then into Brad’s bedroom, yelling at Brad. Billy had followed her into the house and had hidden in a corner. Lilly was in bed, naked, so Billy concluded she and his father had been having sex. After both Billy and Brad repeatedly told Tammy to leave, she got back in her car to do so.
Billy said that he then saw his father come onto the porch. He thought his father was holding “a shotgun—but it turned out to be just a telephone. He was calling the sheriff.” Billy went on indignantly, “A father coming at his family with a gun … That’s just wrong!”
In closing argument, I pointed out that Billy had not wanted his father to come at his mother with a shotgun. But he had had a fear that his father would hurt or even kill his mother—this was shown in the records of his therapy in early 2006. And his imagination turned his fear of assault into reality. A telephone became a shotgun. And even though at trial he knew it had really been a telephone, he was still angry at his father for menacing the family with a shotgun!
In the anxious imagination of such a child, I argued, a suggestion of child molestation could grow to reality, too. On cross-examination Billy had agreed with me that he had not wanted to think about Lilly’s idea that Max would molest him— and that he could not keep from doing so. There were many signs that this seed was growing into Billy’s reality: his asking his mother what “molest” meant just before Max’s arrival, his starting the night apart from Max, his report to his mother that Max was molesting him—a belief still tentative enough that he readily recanted when Max denied it.
Billy had not wanted Max, his hero, to molest him. But he convinced himself that Max had. Tammy did not want to think that her best friend’s son—and Billy’s new godfather—had molested Billy. But she eventually became convinced he had. No one close to Billy had anything to gain from his accusation—but that did not make it true.
The jury acquitted Max in less than an hour.
I am grateful for help I received in Max’s defense from investigator Stephen Robinson, trial consultant Tom Colwell, and lawyers Wade Samuelson, Mary Ruth Mann, and Jim Kytle.