Cases involving childhood sexual abuse are often challenging. Victims of child abuse or sexual assault are frequently unwilling or unable to come forward in the immediate aftermath, which makes collecting direct physical evidence that abuse occurred difficult or impossible.
In many cases, circumstantial evidence and sworn testimony of witnesses to past events are crucial evidence that a crime was committed. Interviews by experts and patterns of behavior are other key pieces of evidence that can help build a case to support claims of childhood sexual abuse that will meet the burden of proof under the law in either a criminal or civil complaint, or both.
Proving Child Sexual Abuse
The Center for Disease Control’s most recent estimates indicate that 1 in 4 girls and 1 in 13 boys in the United States are victims of child sexual abuse, and in 91% of child sex abuse cases, the perpetrator is a family member or trusted family friend.
Child sexual abuse leaves victims with trauma that persists throughout their life, which often results in a long list of challenges that follow them through life, including mental health consequences like low self-esteem, depression, or post-traumatic stress symptoms, and behavioral challenges such as substance abuse, risky sexual behaviors, increased risk of sexual violence, and increased rates of attempted suicide.
Often, the earliest warning signs that a child may be experiencing sexual abuse are subtle things that might be dismissed as normal behavior. Behavioral might include talking too much, and about sexual topics, or talking less than usual. They may not want to be alone with specific people or become fearful of separation from their primary caretaker. They might regress to behaviors they have outgrown, like thumb-sucking or wetting the bed.
There may be more clear physical signs, like sexually transmitted diseases or unexplained bleeding or bruising around private parts.
Many victims of childhood sexual abuse are reluctant to report it. They are often confused about what has happened to them or believe lies told to them by the perpetrator.
They may be uncertain if they will be believed about what is happening to them, or concerned that the sexual abuse that happened to them was somehow their fault. They may not trust the adults in their life to protect them from their abuser.
All of these concerns can lead to delayed reporting, which creates added difficulty for authorities in collecting legal evidence to prove a history of childhood sexual abuse.
Attorneys who work with victims of the crime of child sexual abuse are familiar with these challenges and can help them and their families navigate the process of collecting data and putting together a coherent case with the best chances of success in court.
Children’s advocacy centers can be a key resource for many victims of sexual abuse, offering multiple services including therapy and advocacy, and they are often capable of participating in the criminal justice system investigation.
With a centralized location for therapists, experts, and advocates, it can be easier to form a cohesive picture of the abuse with evidence and expert testimony, while providing therapy and resources to allow many victims to begin the healing process.
Child advocates who are properly trained in trauma in children are skilled at getting to the truth of a situation and learning if a child has been abused by an adult or even another child in their life. They will be able to ask age-appropriate questions and use strategies that help the child express what happened to them even when they are afraid or anxious about how their parents might respond.
The most common types of evidence that are associated with charges being filed are disclosure of the abuse by a child, a corroborating witness, a confession by the alleged perpetrator, or multiple victims reporting abuse from the same offender. Direct physical evidence of an attack is often extremely difficult to find in these cases because of the delay between the abuse and when it is reported.
Prosecution of child sexual abuse cases often relies heavily on the testimony of a child victim. Corroborating evidence will be sought, including witnesses who can verify the child’s account, but as more time passes, the evidence becomes more challenging to verify and reach the necessary threshold beyond a reasonable doubt.
Increased awareness in professionals who frequently handle prosecutions of child sexual abuse has also helped in understanding the nature of testimony from children.
Testimony by an expert in child psychology can go a long way toward establishing the validity of the child’s testimony, even in the common situation where the child has gone through denials, recantation, and restatement as they go through the process of understanding what was done to them.
Often, the barrier to a case against a perpetrator of child sexual abuse is the family of the child choosing not to proceed. Cases are most likely to go forward where the victim is older and able to give effective testimony (and expresses a desire to do so) and has a supportive caregiver.
An additional consideration in child sexual abuse cases is the decision to pursue criminal charges or to file a civil compensation claim. The burden of proof for a civil claim is much lower than the burden of proof in a criminal case, so a successful outcome may be more likely.
In a civil case, the result is usually a financial settlement based on the victim’s needs and emotional trauma rather than a punitive outcome for the abuser involving incarceration. The chosen means of prosecution often depends both on what the desired outcome is for the child and the quality of the evidence that has been gathered.
The prosecuting attorney will have discretion on whether or not to bring criminal charges, but the child and their family’s needs will hold a significant amount of weight. It is worth noting that a criminal case does not preclude also bringing a civil case on behalf of the child to ensure their recovery from the abuse is fully supported with both money and resources.
Proving Sexual Assault
Sexual assault can be difficult to prove beyond a reasonable doubt in a criminal case. In Missouri, a sexual assault is considered first-degree rape if there is sexual intercourse with another person who is incapacitated, or where there is no possibility of consenting. Second-degree rape involves sex when one person knows that the other person does not consent and doesn’t necessarily require force.
Statutory rape is defined as sexual intercourse with a minor under 14 years old, and second-degree statutory rape is between a person who is at least 21 years old and a person younger than 17 years old.
Other forms of sexual abuse are also defined in the Missouri legal code, following similar patterns of consenting and specific abusive sexual acts.
Physical Evidence of Sexual Contact
Missouri supports a trauma-informed approach that centers victims in its handling of sexual offenses. That means that a victim can withdraw support for the case moving forward at any step along the way, and the case will be paused until the victim of sexual assault chooses to move forward.
The decision to participate in a forensic examination is entirely at the discretion of the survivor of sexual assault. A forensic physical exam by a trained medical provider completed as soon as possible after the sexual assault occurred offers the best chance of strong physical evidence being available to support charges against the attacker. A parent or guardian is not required for a minor to participate in a forensic examination.
A sexual assault survivor always has the option of changing their mind about moving forward with the prosecution of their case. If an exam is performed, but the victim chooses not to proceed, the evidence will be put into storage until the victim decides they want to move forward.
A sexual abuse victim can also file an anonymous report, which means a forensic examination will be completed and the kit will be analyzed and provided to law enforcement with a unique identifier to protect the survivor’s identity. Police will have contact information, but not a name, and the officer will be responsible for collecting information while maintaining the victim’s privacy, and the victim’s name will not appear in any records involved with the case.
In addition to the forensic examination and laboratory analysis, police may collect physical evidence at the location where the attack occurred.
Medical records are another important form of legally acceptable documentation of physical evidence of a sexual assault. Even if you sought medical attention some time after the attack happened, these medical records can be helpful in establishing what happened and corroborating the complaint.
Other Forms of Evidence
Witnesses are an important part of establishing that a victim had contact with their attacker. If they were observed together at the time and place claimed by the victim, it helps to substantiate the rest of the complaint even if the attack itself wasn’t directly observed.
Witnesses can also do a great deal to establish the victim’s mindset during their encounter with the perpetrator. If the victim was observed pushing the attacker away, claiming that the victim was a willing participant is much harder.
Witnesses are valuable in describing conversations they had with the victim that were related to the assault. They can also describe any changes in behavior or signs of trauma that they might have observed in the aftermath even if they didn’t have a direct conversation.
Close friends and family are often very observant and aware that something has happened, even when the real problem hasn’t been discussed with them. Teachers or co-workers may observe changes in behavior before anything is ever reported. It is uncommon (although not impossible) for a person to act normally in the aftermath of a trauma like sexual assault.
Since many assaults are committed by someone known to the victim, it’s not uncommon for communication to happen before or after the fact. These communications are useful to establish changes in behavior, might reference specific acts, and may even include an admission of guilt.
If a survivor of sexual assault seeks therapy, they can authorize their therapist to testify about the things that were discussed in their sessions, and therapy notes can provide a powerful record of the harm inflicted on the survivor. Even if the violence is in the distant past, the records from the therapist can provide a record from that time.
If these records feel too invasive or raise trauma and pain that the victim would prefer to remain private, it is perfectly valid to leave them outside the case records. It won’t necessarily damage their case to keep some things private, and no one owes it to society to relive a trauma.
Criminal vs Civil Cases
Sexual assault cases can be challenging to prove, and the perpetrator will be working to discredit any evidence the victim puts forward.
In Missouri, sexual assault charges can be defended by proof of outright innocence of the acts they are accused of, by showing that the victim consented, or by proving that the perpetrator was incapable by means of insanity or mental incapacitation.
In a criminal case, the sexual assault charges must be proven beyond a reasonable doubt. In civil court, the burden of proof is lower and must be proven by the preponderance of the evidence, meaning that the proof must show that it is more likely than not that a sexual assault occurred.
The decision to bring a criminal charge in a sexual assault case is at the discretion of the prosecuting attorney, although because Missouri follows a victim-centered trauma-informed approach, the victim’s wishes are an important consideration in that decision. A criminal case does not prevent a civil case from being filed.
In a civil case, the victim and their private attorney make the decision outside the criminal justice system. Civil suits offer a means of holding a perpetrator of sexual assault or abuse accountable, while the criminal courts offer a sense of justice.
While a successful criminal case is likely to significantly improve the odds of a successful civil case, it doesn’t guarantee the outcome. Often, the claims in a civil case can be settled outside the courtroom.
Defendants may be unlikely to want the expense and exposure related to having a sexual assault reported in the public record. This gives sexual assault attorneys considerable leverage to use when they seek damages from perpetrators of sexual assault or child sexual abuse.
A financial settlement can be negotiated to provide the victim with money or other resources that will go some way to acknowledging the pain and trauma they are dealing with. A settlement also serves as an acknowledgment, albeit outside the public record, that what happened to the victim was wrong. That can offer a sense of closure and help bring some measure of peace.
A good sex crimes attorney can help victims navigate the court system. They can help collect evidence and put it together into a narrative that clearly lays out the sequence of events in a way that brings a successful judgment.
If you’ve been the victim of sexual assault or abuse, an experienced attorney can help you find resolution so you can heal. Even if your case might not seem sound enough for the prosecuting attorney to file criminal charges, a civil case might still be strong enough to move forward with a settlement or a civil trial.
Our experienced attorneys can help you navigate the process whenever you feel ready, whether it’s immediately after an attack, or after you’ve come to terms with abuse that occurred when you were a child. Contact Wendt Law Firm P. C. at 816-542-6734to discuss what we can do to help.