Courts walk fine line between adult rights and concern for young

Judge Aaron Cohn, who has spent 22 years on the bench of the juvenile court in Columbus, Ga., was asked whether the current national focus on child sex abuse could degenerate into another ``Salem witch hunt.'' ``Not likely,'' said the diminutive and distinguished jurist. ``There is one big difference,'' he added in a measured Southern drawl: ``In Salem, there were no witches.''

Despite sporadic incidents of admitted fraudulent accusations, recanted testimony by both children and adults, and legally tainted prosecutions, the United States legal community is convinced that sexual abuse of children exists and, in some instances, is widespread.

In fact, those who work in children's social services say that sexual abuse is vastly underre-ported, particularly in intrafamily situations where incest has sometimes been practiced for many years without complaint or discovery.

While school and community-based programs alert children, parents, and teachers to report suspicious actions and to avoid compromising situations, the legal community is focusing on shoring up prosecutions and easing the courtroom burden on children who are alleged victims of abuse.

Major studies in this area have been conducted by the National Council of Family and Juvenile Court Judges (NCFJCJ), the National Institute of Justice, the American Bar Association's National Legal Research Center, and Abt Associates, among others.

Although specific recommendations vary, these general themes emerge:

In emergency situations, where there are strong indications of sexual abuse of a child, the suspected offender should be isolated from the youngster. Colorado has allowed the Juvenile Court to issue restraining orders to this effect. Some other states are following suit.

Limits should be placed on the number of times a child may be interviewed about an alleged assault. Some states, including Florida, have already done this. Others arrange for joint interviews by law enforcement personnel, social workers, and litigants' lawyers to minimize the burden on a youngster.

States should reexamine their statutes of limitations for reporting sexual-abuse cases. Many children are too confused and scared to acknowledge abuse at a very young age. Minnesota has extended its statute from three to seven years for crimes involving children. Florida's statute does not begin until the victim is 16 or the violation is reported.

Tests of competency should be reviewed. Under the federal rules of evidence, every person is presumed to be a competent witness. Traditionally, children must be able to answer certain basic questions indicating their ability to comprehend before they are allowed to testify. There are, however, strong differences of opinion over age as a qualifier. Many would lift that restriction totally and allow judges and juries to weigh the credibility of a child's testimony.

The use of so-called ``leading'' questions should be permitted, although with caution, particularly in questioning a very young child. This may help a child reconstruct a situation better than the traditional question-and-answer format. A judge must carefully control this situation, however, so the rights of the accused are not restricted.

Hearsay evidence, which is generally not admissible in court, should be accepted in children's sex-abuse cases under certain circumstances. Exceptions to a ban on hearsay have been made in situations where courts have felt that remarks of a youngster outside the judicial setting have been extremely reliable and trustworthy. Some courts have also admitted so-called ``excited utterances'' -- statements made by a child to the police immedately following an alleged assault. However, the introduction of a child's hearsay in court may be seriously challenged on the basis of a defendant's constitutional right to face-to-face confrontation with an accuser.

The use of videotaped testimony or closed-circuit television to take children's testimony in sex-abuse situations is becoming increasingly popular. But these alternatives are also fraught with risks of abrogating a defendant's right to confrontation. By 1985, 14 states sanctioned videotaping for this purpose, but only when it was determined that testimony in open court would be emotionally damaging to the child. Most states now require the physical presence of the defendent in the room where the videtaping takes place, but usually out of the sight of the youngster.

Judge Marshall P. Young of the Seventh Judicial Circuit Court in South Dakota warns state lawmakers to carefully scrutinize prospective reforms ``in the light of the 14th and 6th Amendments.''

The former deals with a defendant's right to a fair trial under the Constitution's due-process clause.

The latter guarantees the accused a fair and public court hearing.

A new study by the National Institute of Justice (NIJ) recommends that children, regardless of age, should be presumed to be competent to testify in court. NIJ also favors allowing a child's out-of-court statements to be admitted in a trial, especially when a youngster ``freezes'' or recants on the witness stand.

``The problems that all crime victims face in the criminal-justice system are exacerbated when the victim is a child,'' says Assistant US Attorney General Lois Herrington. ``Most often child victims have been betrayed by someone they've loved and trusted.''

Some in the legal community are taking another approach. They are focusing on rehabilitation of both victims and offenders rather than a facilitation of the legal process for sex-abuse cases.

Among them is Judge Randall J. Hekman of the Kent County Juvenile Court in Michigan, who believes that, particularly in situations of incest, punishment of sex offenders must be therapeutic and not further harm the child victim.

Judge Hekman leans more toward family counseling than incarceration, especially in situations where the parent-perpetrator admits the crime and is desirous of help and there is no evidence of prior offenses.

``The real damage [to the child],'' Hekman points out, ``is the emotional distress of being betrayed by a father or a close relative. Adding to this hurt can include the alienation of the child from her entire family, banishment from the family home and suffocating guilt for participating in the offense, causing the incarceration of the abuser, and the destruction of the family.''

Robert ten Bensel, a medical doctor and a professor at the University of Minnesota's School of Public Health, agrees with the concept that there are many convicted offenders who truly want help and who should receive counseling in lieu of jail terms. He talks about a type of ``creative leniency,'' which would ``allow post-plea treatment to those who admit their guilt,'' coupled with long-term probation.

At the same time, Dr. ten Bensel would incarcerate ``the violent people.''

`` But today, we should be thinking as much about mercy as retribution,'' he says.

Ten Bensel explains that the definition of ``mercy'' which he finds most appropriate is ``God's gratuitous gift of compassion.''

Last of three articles. Series began Feb.18.