As a board-certified criminal trial attorney, I have been asked the following question:

“How can the government prosecute me for child sexual assault when they have no evidence of my guilt?”

Unfortunately, the answer is anything but simple. Where allegations of child sexual assault are concerned, there's often no additional evidence beyond a child saying it happened. I’ve identified six problems with the prosecution of child sexual abuse cases in Michigan.

1. Confirmation bias – many police officers or child protective services (CPS) workers want to confirm their suspicion—that you are, in fact, guilty--by choosing to “believe” the “victim”, no matter how ludicrous the claim may seem. This is called “confirmation bias.” They want to believe you are guilty. They don’t want to believe that the child may have been coached by a vindictive ex-spouse to falsify a claim of abuse. Then why are prosecutors more careful to examine the mental state of the accused in a homicide case? Don’t these sexual offenses against children carry a life sentence also?
2. Elections – In Michigan, both state prosecutors and judges are subject to re-election. Unlike federal prosecutors typically appointed for a particular term, which often results in a resignation once the opposing party takes control over the executive branch, state prosecutors must file for re-election every 4 years. The best way to get re-elected is to show the voters that you are “tough on crime,” and that they often pledge to “protect victims and society.” This produces a quick trigger finger on the part of the prosecutors and their assistant prosecutors, who serve at the pleasure of the prosecuting attorney. MCL 49.42. Which means the assistant prosecutors may be fired without cause if their boss finds out they angered the wrong victim. In fear of losing their jobs, many assistant prosecutors are afraid to dismiss cases, in fear of the blow-back they may suffer at the hands of angry, victim-rights groups who have the ears of their bosses.
3. Only Guilty People Hire Lawyers! – “only the a guilty man would hire a lawyer!”, as the old saw goes. Unfortunately, many people seem to think that because an accused person hires an attorney, or refuses to take a polygraph, they are guilty of something. Despite the clear prohibitions against compulsory self-incrimination (5th Amendment), and the right the counsel in criminal prosecutions (6th Amendment), skeptics are quick to point out that “the wicked flee when no man pursueth.” (Proverbs 28:1). They seem to imply that the guilty remain silent because they are guilty, or that the only reason one would hire an attorney is because they are guilty. Nothing could be farther from the truth. If the Innocence Project and other post-conviction exoneration cases have taught us anything, it’s that innocent people are convicted and incarcerated for long periods of time for these very types of offense. Those persons were once accused—and convicted—of a heinous crime. That makes them guilty, right?
4. Lack of Training for Law Enforcement – most law enforcement officers—especially those who conduct forensic interviews of children, receive a weekend-long course on conducting forensic interviews of children. The Michigan forensic interview protocol was designed by experts in the field of child psychology to give law enforcement officers and protective services workers the tools to successfully ferret out false allegations from truthful ones. Unfortunately, they are not taught the theory underlying these protocols, and many of them have never read the actual research that formed the basis for the protocol. Worse, there are no required continuing education credits, or any type of board certification; so a government agent who completes the weekend course is anointed as proficient in interviewing children. In other words, Officer Feelgood goes to a hotel, attends a weekend conference presented by the prosecuting attorneys’ association, receives a certificate, and…voila! They are an expert in this field. Now Officer Feelgood, a career cop with no specialized training in child psychology, is “certified” to perform these interviews and elicit evidence from an impressionable child. The officer can perform hundreds of interviews, and do it wrong every time; yet nothing is done about it. There is no special instruction that the judge can read to the jury, warning them they should treat this child’s in-court testimony, elicited first by a tainted interview, with extreme caution.
5. No Suppression Remedy for Violation of Forensic Interview Protocol – Sadly, in Michigan, there is no exclusionary rule which operates to suppress a statement by a child—or subsequent testimony by a child—due a substantial violation of forensic interview protocol. The exclusionary rule was adopted centuries ago to address situations where the government obtained evidence by ill-gotten means. For example, if the police broke into your house and started searching it without a warrant, the exclusionary rule would prevent them from presenting to a jury the evidence they unlawfully seized in violation of the 4th Amendment (which prohibits unreasonable searches and seizures). If the government did that to you, the judge would quickly throw out the evidence as “fruits of the poisonous tree.” However, it is basically unheard-of for the accused in a child criminal sexual conduct complaint to successfully have the judge suppress evidence seized from the child’s lips. Why? Because the 4th Amendment merely prohibits the government from unreasonably searching and seizing your person or property, not from seizing or fabricating evidence elicited from a child’s words. When the child is not your own person or property, you are not entitled to have their testimony suppressed in court. The law should be changed to force the government agents to receive board-certification in conducting forensic interviews. They should be forced to undergo continuing education in this area and be tested to ensure they remain proficient. Otherwise, we will continue to have incompetent persons conducting these important interviews. A person’s life depends on it, even demands it. The child’s well-being depends on it. Would you go to a heart surgeon for open-heart surgery if she wasn’t board certified in cardiovascular surgery? If the surgeon is not proficient, you could die on the operating table. Why should it be any different for police officers and protective services workers? If the officer is not proficient in child sexual abuse forensic interviews, you could die in prison.
6. Corroboration not necessary. Michigan has a law which states the testimony of the victim need not be corroborated (confirmed or supported) by additional evidence in prosecutions involving criminal sexual conduct (CSC). MCL 750.520h. In the federal system, juries are cautioned strongly about accepting the word of a single witness without any additional evidence. The state system should develop a similar jury instruction, warning the jury to be very careful about how they view a single witness’s testimony where there is no additional evidence of sexual assault or physical abuse. An abundance of research has demonstrated that children can be led to believe things that never occurred, usually because those ideas have been suggested to them, and in some cases, foisted on their lips by their parents or law enforcement agents.

My dad used to tell me that life was not fair. In this case, life is definitely not fair for those who are accused of child sexual abuse. The system must be changed. Call your local state representative to change the law to be more fair to the criminally accused.

Patrick William O'Keefe specializes in criminal defense and works almost exclusively in this area of the law. If you are looking for a lawyer to aggressively defend you, a family member, or a friend in criminal proceedings, and who has extensive trial experience with criminal sexual conduct cases, contact O'Keefe Law today.

Caveat: This is not to be construed as legal advice. If you have a question or concern regarding a legal problem, you should consult a lawyer who specializes in that particular area. Nothing in the article should be construed as O’Keefe Law, PLLC providing legal advice.

Child sexual abuse (CSA) is not a new phenomenon. It’s been going on since the beginning of the human race. We have reached a boiling point in our responses to CSA, especially with how we address systemic abuse and cover-ups within large organizations, including but not limited to the catholic church, schools, and state organizations charged with protecting children.

Recently, the New York Times editorial board wrote, “Pope Francis has made strides in changing the culture of the papacy and in making the Catholic Church more inclusive, and he seems now to have grasped the gravity of the sickness afflicting the church.”

Unfortunately, for many victims of sexual abuse, this sickness afflicting the church has become a worldwide epidemic. While there are remedies for survivors—such as demanding more accountability, transparency, and increased participation with the administration and management of local parishes—there are civil remedies available to survivors of sexual abuse.

In many states, the biggest obstacle for survivors is the relatively short, traditional statute of limitations. A typical statute of limitations for sexual assault civil cases is two or three years in most states. However, in Michigan—in direct response to the Larry Nassar sexual assault scandal surrounding Michigan State University and USA Gymnastics—the period of limitations was expanded 10 years for an action to recover damages sustained because of criminal sexual conduct, or before the survivor’s 28th birthday, whichever comes first.

In Michigan, the period of limitations for Nassar survivors can stretch back as far as 1997, which is the approximate date that Nassar started sexually abusing his victims. But that period of limitations was carved out by Michigan lawmakers to give Nassar survivors a chance to sue for damages. No such remedy has been afforded to any other class of victims. This must be changed, and the catholic church must encourage this expansion of victims’ rights to open themselves up to making restitution for hundreds—of years of sexual abuse perpetrated by members of their rank and file, and acquiesced in by bishops, cardinals, and the Pope.

But Michigan’s legislature did not go far enough in addressing the needs of all survivors of sexual abuse, especially those sanctioned by large organizations like the catholic church. Michigan State University and USA Gymnastics have been and will continue to be held responsible for the predatory conduct of only a few offenders; Nassar is the most notorious of these few offenders. The Nassar scandal, sadly, represents the tip of the iceberg. It was a lighting rod to raise awareness that these types of “nice guy” offenders are hiding in plain sight. But how do we address the catholic church, which has thousands of offenders in local parishes all around the country?

Research has shown that many pedophiles are able to perpetrate their crimes on child victims without detection because it can take decades for the child to realize they are victims. Many of these survivors may not realize that they were victims of sexual abuse, and therefore, the period of limitations does not extend far enough. Adult manifestations of child sexual abuse often do not occur until the survivor reaches the age of 40. We have seen cases where the survivor does not report the abuse until into his 70s. Moreover, the shame and stigma of being sexually abused by an authority figure often prevent many survivors from reporting abuse, especially when that figure is seen as a pillar of the community. In Michigan, the statute of limitations stretches to the victim’s 28th birthday. For example, children who are sexually assaulted at age 17 have until their 28th birthday to sue for damages. This creates a definite problem for children who are struggling with their sexual identity, and who are intelligent enough to understand that the age of consent in Michigan for sexual contact is 16 years of age. Therefore, the statute of limitations in Michigan should be expanded to allow for all survivors, especially those who did not realize they were being victimized, to file civil actions for damages within 3 years of realizing that they were victims of sexual abuse.

State attorneys general, most notably in Pennsylvania, are doing more to investigate the systemic abuse which has taken place in their respective states. A Pennsylvania grand jury has identified more than 1,000 potential survivors of catholic sexual abuse, and famously noted, “Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades.”

The management and operations of the catholic church do not differ from state to state. The management hierarchy of the church is easily recognized: (1) Pope; (2) cardinals; (3) archbishops (4) diocesan bishops (5) priests. It would be difficult to imagine that the management of the catholic church changes much from state to state. All the symptoms of enabling predatory conduct have proven to be the same, whether we are looking at the archdiocese of Boston or Philadelphia. Catholic priests have been permitted to victimize young parishioners and pupils at an alarming rate. And rather than taking the only appropriate response to such behavior—defrocking and criminal prosecution—many bishops and parishes have chosen to either look the other way, offer counseling to the survivor, or move the priest to another parish without addressing his criminal behavior. All this has done is enable sexual predators to commit their crimes in a number of other parishes, maybe even across state lines. The Pennsylvania grand jury found that these priests were being moved from parish to parish; were permitted to victimize other victims across numerous parishes; and were protected by the church. Pennsylvania, which has a population of roughly 13 million, is a comparable state to Michigan, with a population of just under 10 million. If the Pennsylvania grand jury has identified more than 1,000 victims of catholic abuse, then we can infer that there are approximately 769 victims of catholic abuse here in Michigan alone. But how do they receive justice?

Pope Francis stands at the precipice of a worldwide crisis. The catholic church, for years, has opened its doors to persons of need: the poor, hungry, destitute, and meek. But in searching for solutions to this cataclysmic crisis, the Pope has his work cut out for him. As the New York Times pointed out, “But for what is sure to be a defining struggle of his papacy, he will need to look beyond the cardinals, prelates and priests — indeed beyond himself — for answers and solutions.”

These answers and solutions must start with a comprehensive investigation by the United States Department of Justice, state attorneys general, and local law enforcement. These ministers of justice must investigate these matters as the crimes they are; not as civil matters. But criminal prosecutions represent just one step in the process of dismantling systemic abuse. The civil courts—indeed civil lawyers who are attuned to representing survivors of sexual assault—must be prepared to give these survivors their day in court. And the state legislatures need to expand their respective statutes of limitations to allow survivors to recover damages—both restorative and punitive in nature. The injuries and trauma done to the survivors are irreversible. While they can heal and even find forgiveness, their trauma cannot be undone.

The only tried-and-true way to teach a large organization in America to institute real reform, and to prevent future injuries to their employees, constituents and clients—is to hit them in their wallets and diminish their precious bottom line. The same must happen for the catholic church to take notice of this national problem, and effectuate real change for the sake of the survivors, and not for the sake of the people who serve the church.

Law enforcement officials can offer a lot of support. It’s never too late to report a crime of sexual assault. If you are a survivor and you are ready to come forward, I would encourage you to report it, even if you think it’s too late. Holding the offender accountable in the criminal courts is an effective tool in stemming the abuse and protecting other potential victims from future harm.

As the NYT further opined, “Any credible effort at reforming the clerical culture of the church, restoring trust, instituting accountability and eradicating the cancer of sexual abuse will require the full participation of experts, prosecutors, victims and many others outside the clergy and the church — women as well as men. If that runs against tradition and practice, so be it.”

So whether you are a victim of clergy abuse or some other type of abuse, my advice to you is simple: Its never too late to stand up and fight. You are not alone. And your voice must be heard. Report these crimes to law enforcement. Know that you are not alone. Together, we can end the cycle of child sexual abuse, once and for all.

Patrick William O’Keefe is a board certified trial attorney in Michigan. A former prosecutor, Mr. O’Keefe specializes in sexual assault litigation, and has tried well over 200 jury trials in the course of his 15 year career. He resides in Mason, MI with his wife, Dr. Breanna O’Keefe, and their six children. Mr. O’Keefe encourages any and all survivors of sexual abuse to contact his office at (517) 253-0114 to schedule a free consultation.

During a recess in my criminal sexual conduct trial, I overheard a spectator saying she hoped everything that’s gone on at Michigan State University (with the sexual misconduct lawsuits against a former physician), would help convince the jury that my client is guilty.

As I listened to her, I was reminded of the hysteria that now surrounds charges of criminal sexual conduct and false allegations of sexual assault. I wanted to address the woman by setting the record straight about the workings of a criminal jury trial, but I knew there was nothing this criminal trial lawyer could say that was going to convince her of her erroneous thinking.

The jury system in America is still the greatest system in the world. American juries, on whole, have been getting it right for centuries. They understand their role in a criminal case: to hold the government to its burden of proof (beyond a reasonable doubt), and acquit the accused if the government fails to meet that burden.

In my experience, juries are not influenced by outside considerations like the civil lawsuit cases. They are very good at basing their decisions solely on the evidence which is properly admitted throughout the course of the trial. They don’t let prejudice or sympathy drive their decision.

In Michigan, juries are often dealing with a case where there is no physical evidence. This typically is present in cases where the accuser waits years—even decades—to make a report. Prosecutors like to remind juries—especially in places like Ingham, Eaton, Clinton, Shiawassee, Ionia, Kent, Jackson, and Livingston counties—that the law does not require that the testimony of the victim be corroborated (supported) by any other evidence, if you believe the “victim’s” testimony beyond a reasonable doubt.

So how is it that so many prosecutors continue to get convictions on these cases where circumstantial evidence is scant or non-existent? I believe the answer is simple: because the law says they can, and because juries often are not reminded by the criminal defense attorney that they can do whatever they want. They are the law.

In a “he said, she said” case, the most common question asked by prosecutors is:

Why would the victim lie about something like this?

As Henry Ford once said, “Whether you think you can, or think you can’t, you’re right.” In my cases, I have been very successful reminding these juries that although the law does not require corroboration of the “victim’s” testimony, they are free to do whatever they think is fair and just. I am careful to remind them that although the law does not require corroboration, they can—and should—demand more. They should demand more especially when the accuser’s story changes when it’s time for him/her to testify at trial.

These cases can be difficult to defend, but there is a critical aspect of the defense strategy in responding to this question of “why would she lie?” The prosecutor, by inviting the jury to speculate as to why the accuser would fabricate a story, often engages in impermissible “burden-shifting” (where the prosecutor tries to get the jury to believe that the defendant must prove his innocence). The answer is simple: I tell these juries the accused is not required to prove anything, especially when it comes to whatever cockamamie ideas may be running through the accuser’s head.

By inviting the jury to question why the victim would fabricate a story like this, the prosecutor opens the door to many different aspects of the case which otherwise may not be relevant. For example, the victim’s character is typically not relevant. But in some cases, victims have made prior false accusations, which is very relevant. In other cases, accusers have developed mental and/or emotional problems. Some accusers may even believe that the government is watching them. In my most recent trial, one of the accusers testified that she believed the government was conspiring against us, brainwashing us, and tracking our whereabouts by planting chips in our coins.

There is also a real dynamic of “sister survivorship.” Strength in numbers can be a very powerful thing. If a jury is shown only one victim, they may not be as persuaded as if they were shown two victims. They may be more likely to conclude there is a pattern of deviant behavior if there are multiple victims lining up to testify. This is a fairly new phenomenon, ushered in by the “Me Too” movement and accusations used to destroy various celebrities. The scenario when multiple victims communicate together—which is often collaborative endeavor with victim advocates—to create a false narrative of sexual assault, is a very real scenario that must be treated with great scrutiny.

In some cases, accusers are even coached by police, prosecutors, friends, or other fellow accusers to believe that major inconsistencies in their testimony are not a big deal, no matter how unbelievable and patently false they may seem. But in the case where the sole evidence is testimonial from the accuser, and is unsupported by any corroborative evidence, these “little” inconsistencies are a huge deal. A recent accuser told the police that before she was raped, the accused was unbuckling her belt in order to pull down her pants. At trial, she testified she was wearing sweatpants before she was raped. Have you ever heard of someone wearing a belt with sweat pants? No. Neither have I. But this is just another example of how the accuser will always get their day in court, because Michigan prosecutors all succumb to the mounting pressure of reelection. If they don’t pursue prosecution, and give the accuser his/her day in court, they may receive negative publicity, and may not be re-elected.

Differences further exist between civil and criminal cases. When I try a criminal case, I always remind the jury that if it were the accuser filing a lawsuit against the accused, the burden of proof would be preponderance of evidence, which means the evidence in favor of the plaintiff outweighs the evidence against the plaintiff. But when criminal charges are issued—whether it be for criminal sexual conduct, child sexually abusive activity, or accosting a minor for immoral purposes—the plaintiff becomes “The People of the State of Michigan.” The burden of proof increases to proof beyond a reasonable doubt, and the accused is not required (much less expected) to prove his or her innocence.

In these cases, the criminal defense attorney must make it clear to the jury that the plaintiff is not the accuser, and the burden of proof increases substantially—to proof beyond a reasonable doubt—when criminal charges are filed. We must remind the jury that the men who wrote our constitution wanted to make it hard for the government to secure a conviction. They understood that it was better to have a guilty man go free than to convict an innocent man.

In summary, the “survivor movement” has had a huge impact on society, but the impact on a criminal trial is more of a fear than a reality. Although there has been a steady uptick in criminal sexual conduct trials—and more convictions of innocent people—the juries must be reminded of their function. It is extremely important for criminal sexual conduct trial attorneys to educate the jury about the difference between accusations and evidence.

In my humble opinion, our jury system does not need reform. Our laws need reform. Our laws should make it harder—not easier—for criminal sexual conduct charges to stick. Although the “survivor movement” has had a huge impact on society, its impact on a criminal trial is more of a fear than a reality. Although there has been a steady uptick in criminal sexual conduct trials—and more convictions of innocent people—juries must be reminded of their function. It is extremely important for sexual assault trial attorneys to educate the jury about the difference between accusations and evidence, and the difference between the burden of proof in a civil and criminal trial.

A last piece of advice—if you are accused of criminal sexual conduct, do not speak to the government. They will only twist your words and make you look and sound guilty. The mere allegation can’t ruin your life, but your novice and unguided response to the allegation can ruin you. If you have questions or concerns about your criminal sexual conduct case, pick up the phone and call me. My number is (517) 253-0114. Call for an initial consultation. It may be the best call you will ever make.

-Patrick William O’Keefe