Justices Take Up Child Molestation Issue : To Decide if Suspect May Be Barred While Judge Questions Victims

The Supreme Court, addressing the need to balance protection for sexually abused children against the constitutional rights of criminal suspects, said Monday that it will decide whether a child molestation suspect may be excluded from the courtroom when a judge interviews the children who will testify against him.

The justices will review a Kentucky Supreme Court ruling which declared that a person suspected of being a child molester had “the absolute right to be present” at all phases of the legal proceeding against him. The Kentucky decision threw out the conviction and a 20-year prison term for Sergio Stincer, accused of molesting two girls, 7 and 8 years old, and a 5-year-old boy while their mothers were shopping.

This is the second case on the sensitive issue of child abuse accepted by the high court at this session. Last week, the justices heard final arguments in a Pennsylvania case that tests whether a man accused of molesting his daughter has the right to examine a child protection agency’s records that include the names of confidential informants.

In the Kentucky case, before the children were permitted to testify in the trial, the judge conducted a hearing to see whether they knew the difference between the truth and a lie. Lawyers from both sides were there, but the suspect was barred.

Attorneys for Kentucky, urging the justices to overturn their state’s high court ruling, said that the presence of the suspect would only “intimidate” the children. But the defendant’s attorney contended that the suspect must be permitted to attend to exercise his right to confront his accusers.

In recent years, legal problems arising from much-publicized allegations of child molestation such as those at the McMartin Pre-School in Manhattan Beach, Calif., have illustrated the difficulty of trying such cases. Prosecutors say that the Kentucky case, as well as the pending one from Pennsylvania, are extremely significant in their efforts to convict child abusers.

“These are people who have chosen victims who are going to have difficulty being qualified as witnesses,” said Kenneth Freeman, a deputy district attorney in Los Angeles and a specialist in child abuse prosecution. “We always have to balance the constitutional rights of defendants against the right of victims. In these cases, I think we need to give more weight to the needs and rights of children.”

Some Hearings Closed

In California, a judge may close a hearing when deciding whether a child must be taken away from an offending parent. However, if the charge involves criminal child abuse, the state courts generally have held that the suspect must be present when the judge interviews the children, Freeman said.

On Monday, the justices agreed to hear six cases, including the one from Kentucky (Kentucky vs. Stincer, 86-572). That fills their calendar for cases to be argued and decided in the current term, which ends in July. The justices also:

--Agreed to decide whether a soldier who was given LSD by the Army without his knowledge during a 1958 experiment may sue the government. Routinely, the courts have barred all such suits by military personnel, but the U.S. 11th Circuit Court of Appeals ruled in April that the man, James Stanley, may sue because his constitutional rights were violated in an action that had nothing to do with the need to maintain military discipline. U.S. Solicitor General Charles Fried appealed that ruling (U.S. vs. Stanley, 86-393).

--Entered a multibillion-dollar dispute by agreeing to decide whether low-cost retailers may by-pass distributors of trademarked goods. The U.S. Customs Service does not allow the importing and sale of “unauthorized” goods bearing an American trademark, except when the American trademark is actually owned by a foreign firm. Many retailers, such as K mart, can buy these so-called “gray market goods” directly from the manufacturers outside the United States and sell them here “at up to 40% less than the inflated retail prices” charged by the U.S. firms holding the trademarks.

However, in June, an appeals court in Washington overturned the 50-year-old Customs Service policy, ruling that American firms had “an absolute, unqualified right” to exclusive use of the trademarked products in this country. Attorneys for K mart and other retailers said that this decision, unless reversed, would cost consumers $6 billion a year (K mart Corp. vs Cartier Inc., 86-495).

--Let stand a South Carolina court ruling which said that a newspaper may be sued for “an invasion of privacy” for reporting--accurately--the name of the father of an illegitimate child. The young father, interviewed for a newspaper series on the increase in teen-age pregnancies, sued after his name appeared in print. He won $26,500 in damages. Only Justice William J. Brennan Jr. agreed to hear the case (Multimedia vs. Hawkins, 86-390).