Recently the Court of Appeals reversed a Washington man’s convictions, finding that a prosecutor committed misconduct by arguing facts not in evidence about the phenomenon known as “sexual grooming.” In our cases at The Marshall Defense Firm, we often encounter claims our clients “groomed” a young person.
But what does that mean, and how is it proven in court?
What Is Considered Grooming in Washington State?
“Grooming,” according to those who use the term, is a perpetrator’s actions toward a sexual target that are designed:
- to form a relationship or a bond with that person;
- to lower boundaries between the perpetrator and the target; or
- to normalize the behavior the perpetrator is planning.
The goal of grooming is to make it easier to commit the intended crime and less likely the victim will report it. For example, a man may touch a girl’s shoulder frequently before moving the touches to her private parts. Or he might repeatedly wear little or no clothing in her presence, to prepare her for an invitation that she shed most of her clothing, too.
The Problem with Grooming Evidence
“Grooming” evidence can easily be little but bad act or character evidence, or profile evidence, generally forbidden in trials. And juries can place undue weight on this evidence when presented by someone claiming to be an “expert.”
Many of the things that one person might call grooming another might quite reasonably call nurturing or mentoring. One cannot know which characterization is correct without knowing the motivations behind the actions. If an uncle hugs his niece, is he showing her proper affection or preparing her for sexual assault? If a teacher listens and responds to the troubles of a student who comes to him for advice, is he mentoring her and offering compassion, or prepping her to satisfy his sexual desires?
Problems arise when an expert testifies that the defendant’s behavior qualifies as grooming, and that child molesters groom. The implication is that since the defendant groomed, he was a child molester in action.
How Is Grooming Proven?
Despite these problems, courts generally allowed grooming evidence, provided:
- The court finds the evidence relevant to the facts of the case; and
- An expert testifies about the grooming.
In State v. Braham, 67 Wash. App. 930 (1992), the appeals court reversed a man’s conviction of first-degree Child Molestation because expert testimony on the grooming process had little probative value and was unfairly prejudicial.
The alleged victim was a three-year-old who lived with her aunt and the defendant, her uncle. During trial, the prosecutor claimed that the defendant was close to his niece—in fact, that he was a father figure to her, that he treated her like a daughter.
The prosecutor also called psychologist Lucy Berliner, who testified as an expert about grooming. She testified that grooming is a process of victimization where the person who intends to abuse the child gradually gets the child to feel more comfortable and may gradually sexualize the relationship or form a bond with the child. She also testified that children who are needy or in need of attention or support and often targeted.
The prosecutor repeatedly argued that the defendant’s closeness to the child, his acting as a father figure was evidence of his guilt. Basically, the argument was that child molesters are groomers, and groomers try to get close to their victims. Therefore, if the defendant tried to get close to the child, he was a groomer and therefore a child molester.
As the recent Phelps case shows, to present grooming evidence, the State must call an expert to testify. But the Phelps case doesn’t show what makes someone an expert on grooming.
Most courts will allow testimony by anyone with training or experience that has given them specialized knowledge of grooming behaviors. Courts have generally refused to require grooming testimony to pass the more rigorous test used for experts testifying to scientific evidence. Therefore, grooming testimony can be presented without any basis in studies published in peer-reviewed journals and without any basis in the scientific method of testing. Most often the expert is a child therapist or a child forensic interviewer.
What to Do If You’ve Been Accused of Grooming
If you or someone you love has been accused of grooming, you should contact an experienced attorney at once. An accusation like this is very serious. Don’t speak with anyone about the facts of the situation until you have talked with a lawyer.
At The Marshall Defense Firm, we understand what’s at risk when a person is accused of a sex crime. We have dedicated ourselves to providing superior legal defense in high-stakes cases such as these. If you have any questions and would like to schedule a consultation with one of our expert attorneys, please contact us at 206.826.1400 or firstname.lastname@example.org today.