Children Must Face Accused, Justices Rule

The Supreme Court, casting doubt on laws in California and at least 25 other states, ruled Wednesday that the Constitution requires children testifying in sex abuse cases to confront their alleged abusers “face-to-face.”

The ruling came as a shock to advocates for child abuse victims, who in the last five years have persuaded a majority of states to pass laws designed to shield children from the possible trauma of face-to-face court confrontations with abusers. Many legal experts had expected the justices to disapprove the one state law directly challenged in the case, but few had expected the decision to sweep as far as it did.

‘Discourage Prosecutors’

“It’s a setback,” said Howard Davidson, an American Bar Assn. expert on child abuse cases. “It will just further discourage prosecutors who already don’t like these cases.”

The move to pass special laws to protect child witnesses began in 1983 and has gained momentum as several highly publicized sex abuse cases, particularly the McMartin preschool case in Los Angeles, focused public attention on child abuse.

The number of reported child abuse cases more than tripled from 1976 to 1985, increasing from 669,000 reports a year to more than 1.9 million. In 1985, those reports included nearly 200,000 allegations of sexual abuse. In the vast majority of those cases, there is no clear physical evidence of abuse, so trials turn, almost exclusively, on the testimony of the young victims.

Victim advocates argue that for many children, particularly those who are very young, testifying in court about sexual abuse can be almost as traumatic as the abuse itself. Those arguments have proven powerful with many legislatures--and with many state courts, which have upheld special procedures to protect child abuse victims--although some leading psychologists have cautioned that little evidence exists to prove that testimony actually is any more traumatic for children than for adults.

The court’s ruling did not discuss such questions, however. The Constitution’s Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him” and that makes face-to-face confrontation “essential to fairness,” Justice Antonin Scalia wrote for the 6-2 majority. It “may, unfortunately, upset the truthful. . . abused child; but by the same token it may confound the false accuser, or reveal the child coached by a malevolent adult,” he added.

‘Protections Have Costs’

Although requiring confrontation may complicate prosecutions of child abuse, Scalia wrote, “constitutional protections have costs.”

The case (Coy vs . Iowa, 86-6757 ) began in 1985, when two 13-year-old girls camping out overnight in their Iowa back yard were assaulted by a man in a stocking mask, who forced them to undress and perform sexual acts. Their neighbor, John A. Coy, was later arrested and charged in the case.

An Iowa law passed in 1985 directed judges to assume in all abuse cases that children would be traumatized by testifying and established several procedures that could be used to protect them. When Coy’s case came to trial, the judge chose a procedure under which the two girls testified from behind an illuminated screen that allowed Coy, the judge and jury to see them, but kept them from seeing Coy.

Coy was convicted, and his attorneys appealed, saying that the trial procedure violated his constitutional rights.

Scalia agreed. By keeping the girls from seeing the man whom they were testifying against, the screen violated a constitutional guarantee that is based on “something deep in human nature” which puts more credence in a witness who can “look (the defendant) in the eye.”

Use of TV Hookups

Although the ruling clearly invalidates the use of one-way screens, the impact is less clear on other devices, such as the two-way closed-circuit television hookups authorized by a 1986 California law.

Scalia, joined by three other justices, conceded only that there might be some exceptions to the face-to-face rule. They did not specify what exceptions they might uphold.

But Justice Sandra Day O’Connor, joined by Justice Byron R. White, specifically noted the California law in suggesting that other procedures, which allow all parties to see each other even if they are not in the same room, might pass the constitutional test. Another point in favor of the California law, they noted, is that rather than presuming trauma will occur in all cases, it allows special procedures only in the particular cases in which a judge has decided that the witnesses need protection.

Those two votes, together with Justice Harry A. Blackmun and Chief Justice William H. Rehnquist, who would have approved the Iowa procedure, would provide four votes to uphold the California law. A potential fifth vote, Justice Anthony M. Kennedy, did not participate in the current case, which was argued in January before he was confirmed as the court’s newest member.

“The California statute is clearly at risk,” said Steve White, who heads the criminal division of the state attorney general’s office. Although O’Connor’s separate opinion makes it “possible that our law could pass constitutional muster,” he said, “it’s an uphill run.”

Since being passed in 1986, the state law has been used in “only a handful of cases,” White said.

State Sen. Art Torres (D-South Pasadena), author of California’s closed-circuit television law, predicted that Wednesday’s decision will have no effect on the state’s court procedures, which do not permit the use of screens.

“Under California law, counsel is present in every situation and there is at least artificial eye contact between defendant and child,” he said.

“I do not believe it (the decision) will have any effect at all on the McMartin Preschool molestation case,” said Los Angeles prosecutor Roger Gunson. “We have not used similar (screening) devices or even closed-circuit television at the trial, nor do we plan to. We did use closed-circuit for one child at the preliminary hearing, but our procedure allowed the defendant to view the witness and the witness to view the defendant.”