Hearts break. Ears close. Justice waits.

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BY: Magen Kite, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer.

Every year, millions of children experience abuse and neglect. In 2013, nationwide an estimated 3.5 million referrals were made to child protective services agencies alleging that an estimated 6.7 million children had been abused or neglected.  Of those, approximately 3.9 million children were the subject of at least one child protective services investigation, and approximately 679,000 children were found to have been abused, neglected, or both.

These numbers are heartbreaking. The scars they represent—physically, psychologically, and emotionally—are even worse.  For the children who suffer the worst maltreatment, the cases that draw criminal charges and media attention, these numbers only tell the beginning of their story.  These numbers do not reflect how many cases of child abuse are prosecuted each year, or how many children are asked to testify against their abusers. Nor do they help in understanding what it is like for a child to participate in a criminal prosecution.  Occasionally, we get a glimpse into the process, mostly from the perspective of prosecutors, law enforcement officers, and other helping professionals involved in the investigatory phases.  Rarely, if ever, do we get a chance to hear from the child about what happens after the child protective services investigation, after the criminal investigation, and after the case is referred to the District Attorney for criminal charges.

Michael’s story first made local news in November 2013, when a Union County Sheriff’s Deputy discovered the boy, handcuffed by his ankle to the front porch of the home he had lived in since he was a small child, with a dead chicken hanging from his neck.

Recently, a local child has provided a rare glimpse into the experience of a child abuse prosecution from the perspective of the child victim.  Not by choice, but because the story of his experience was so horrific it made local, national, and even international headlines.  This child is known only as Michael—his mother asked the media to call him Michael rather than continue to identify him by the abuse he experienced.  Michael’s story first made local news in November 2013, when a Union County Sheriff’s Deputy discovered the boy, handcuffed by his ankle to the front porch of the home he had lived in since he was a small child, with a dead chicken hanging from his neck.

In the seventeen months since Michael’s story first made headlines his caregivers have been arrested, charged with child abuse and other related criminal charges, and both have accepted plea deals.  Michael’s caregivers were Wanda Sue Larson and Dorian Harper.  Harper was a local emergency room nurse.  Larson was a Union County Child Protective Services Social Work Supervisor.

The news of someone entrusted with something as sacred as the care and protection of our children betraying that trust, fueled outrage in the community.  Outrage that was reignited when news broke that the couple would enter plea deals rather than face trial.  Harper pleaded guilty on March 18, 2015 to child abuse, assault with a deadly weapon, and maiming without malice.  On March 31, 2015 Larson also pleaded guilty to two counts of felony negligent child abuse inflicting serious injury, one count of misdemeanor false imprisonment, and one count of failure to discharge her duties as a county employee tasked with protecting children.  Harper was sentenced to six to ten years in prison.  Larson was sentenced to a maximum of seventeen months.  After receiving credit for the sixteen and one-half months she had already been in jail, Larson was released just four days after entering her guilty plea. According to news reports, Larson apologized when she appeared in court to enter her guilty plea, “I should have done more and I apologize.”

When asked to comment on the decision to accept plea deals for Larson and Harper, the Union County District Attorney’s Office said it made that decision “for the victim’s sake, so he wouldn’t have to relive the abuse.”

Within days, a local group, the Justice for All Coalition, began speaking out about the plea deals.  Jeff Gerber, the founder of Justice for All, told reporters that he was “furious” that the assistant district attorney “used an excuse” to avoid going to trial.  Mr. Gerber was not alone, a member of Justice for All’s board told reporters that “[n]ow’s the time to give them justice, not to protect them.”  Local parents were also upset by the plea deals; one mother told reporters she thought it was “ludicrous” that Larson would get “time served,” when Michael has to live with the consequences of Larson’s decisions and Harper’s abuse for the rest of his life.

When asked to comment on the decision to accept plea deals for Larson and Harper, the Union County District Attorney’s Office said it made that decision “for the victim’s sake, so he wouldn’t have to relive the abuse.”  His decision was supported by Michael’s reaction to hearing details of the abuse being read into the record during Harper’s sentencing hearing—Michael became upset and left the courtroom. Regardless of the prosecutor’s good intentions, keeping Michael off the witness stand cannot protect Michael from having to “relive” his abuse in the future.  Quite to the contrary—Michael will likely relive his abuse every day for the rest of his life.  Perhaps not publicly, or vividly, or consciously, but the emotional and psychological scars of Larson’s and Harper’s conduct will remain with Michael for the rest of his life.

Michael’s mother, Maria, also expressed dissatisfaction with the plea deals.  She said, “I wish people would have thought about . . . his feelings, his future.”  She also told reporters that Michael was “mad” and that he felt that Larson “deserve[d] more time.”  Looking to the future, she said, “It’s going to be a rough road. [. . .] She’s getting out, what, 18 months? And he’s going to have the rest of his life.”

Rarely is the public given the opportunity to hear from all of the stakeholders—the prosecutor handling the case, the child victim, advocacy groups, and the local community.

Michael’s story presents a unique window into child abuse, child abuse prosecutions, and child witness testimony. Rarely is the public given the opportunity to hear from all of the stakeholders—the prosecutor handling the case, the child victim, advocacy groups, and the local community. Michael’s story has shed light on the motivation of advocacy groups like Justice for All—their reason for seeking harsher penalties for crimes against children is not merely ill-will for “child abusers. Instead, Michael’s story provides a glimpse into the pain and suffering that motivates prosecutors to accept such deals. Michael’s story gives everyone an opportunity to see the pain and suffering etched into the faces of child abuse victims and their families.  Most importantly, Michael’s story brings to the forefront the voice of the child whose “justice” is in our hands.

Research has shown that having to testify can have a traumatic impact on a child.

For those of us who have seen the “other side” of child abuse investigations, we know that one of the first questions a family member or caregiver will ask is whether the child will need to testify.  We also know that the answer is usually “we hope not.”  But Michael has reminded us that our children do understand that something terrible has happened, that someone is responsible, and that there are consequences for bad behavior.  He has also reminded us that sometimes our children want to have a say, too.  Justice for All and the Monroe community were  justifiably upset with the disparity between Larson’s sentence and Harper’s sentence.  By the same logic, the prosecutor was equally justified in accepting the plea deals if he believed it to be in Michael’s best interest.  Research has shown that having to testify can have a traumatic impact on a child. ¹ Some children experience strong negative emotions about having to see the defendant again. ² Others find it difficult just to be in the courtroom. ³ In fact, both stressors can be sufficient to impair a child’s ability to accurately recall and communicate their experiences. ⁴

State courts and legislatures have tried to find a way to “split the baby” and avoid having to choose between protecting the victim and prosecuting the defendant.  Alternatives to traditional in-person testimony have been one popular approach.  In fact, two cases challenging the constitutional validity of alternative testimony statutes have made it all the way to the Supreme Court of the United States. The first case, Coy v. Iowa went before the Court in 1988. Coy was not so much about an alternative testimony procedure as a courtroom accommodation.  A large screen was placed between the witness stand and defense table to prevent the witnesses from seeing the defendant as they testified.  The Supreme Court found this to be an “obvious” violation of the defendant’s right to a literal “face-to-face encounter” at trial.  But, the Court expressly reserved for a future case the question of whether any circumstance might justify an exception to the right to confrontation.

The second case, Maryland v. Craig, went before the Court just two years later, in 1990.  Craig did involve an alternative form of testimony—a remote testimony procedure that allowed a child witness to testify from a location outside of the courtroom and have her testimony streamed into the courtroom in real-time via closed-circuit television.  This time, the Court answered the question it had expressly reserved in Coy, and concluded that an exception could be carved out of the right to confrontation where necessary to protect a child witness from being retraumatized by testifying in the presence of the defendant, so long as the child’s testimony was reliable. With its decision in Craig, the Supreme Court seemed to give state courts and legislatures its blessing to think critically and creatively to find a way to present child witness testimony without retraumatizing the child.

That leaves us with a Hobson’s choice: prosecute the crime and risk retraumatizing the child, or avoid retraumatizing the child and decline to prosecute.

Despite having the Supreme Court’s blessing, at least for now, lawyers and judges are still reluctant to ask a child witness testify. To be fair to all the lawyers and judges whose mouths I just put words in, they have very compelling reasons to be reluctant about putting a child on the witness stand.  After all, research has indicated, not only that a child might be traumatized by the experience, but that the child’s memory might be affected.  Morally and ethically it is hard to justify taking the risk.  But what if that child is the only witness?  Child abuse thrives on secrecy and isolation.  Under the best circumstances, physical evidence or other corroborating evidence sufficient to tie the defendant to the child’s injuries is rare.  So even under the best circumstances, the strongest evidence we have is often the testimony of the child who suffered the abuse.  That leaves us with a Hobson’s choice: prosecute the crime and risk retraumatizing the child, or avoid retraumatizing the child and decline to prosecute.

Hindsight is 20/20; it is easy to see in retrospect how this or that might have completely changed the outcome of a case.  Sitting on the sidelines, it is easy to point a finger and proclaim what the outcome should have been. Having been one of the investigative professionals working side-by-side with law enforcement officers and prosecutors, I understand the dilemma.  The report hits your desk, you read the allegations, you hope it is not true, but your experience tells you that the more bizarre the report the more likely it is to be true. Interviewing the victims and talking with their families, you see the pain and suffering in their faces and eyes.  When they ask you “how do we get our little boy back? I just want things to go back to normal,” you want to make all of that pain go away.  You want to be able to give them the balm that will soothe their wounded souls. Instead, you have to tell them that “back” is not a place they can go and they have to create a new normal that includes space for their child to heal and grieve the scars they will carry for the rest of their lives.  What else can you do?

Michael gave us something rare—a moment to gather all of the stakeholders around the table and have an honest discussion.  He gave us a moment to recognize that these cases are not easy and the solutions are not obvious—each case of child abuse is as unique as the child who has been harmed.  He also gave us a moment to see that we all want the same thing—to undo the harm and make our children whole.  The reason so many people spoke out and advocacy groups got involved and agency-wide investigations took place is that we all have a vested interest in the outcome of Michael’s case.  Michael has given us something no political campaign, speech, law, public service announcement, education, or fundraiser ever could—he gave us a moment of unity. Deciding how we should protect and educate our children has become increasingly political, yet policy and politics are meaningless if we forget their purpose.  Michael’s experience is unfortunate and heartbreaking—but he is one of millions of children who are abused every year. But something good can still come from Michael’s experience if we are willing to refocus our efforts on listening to each other and working together to pursue justice for our children.  Justice means more than avenging harm done to a child, or punishing someone who does something bad—justice means investing the time, energy, and effort to give the next kid a fighting chance.

Magen Kite is a 2015 graduate of Campbell Law School. She can be reached by email at lmkite0304@email.campbell.edu