Children’s Justice: Counting, Understanding, Investigating, Charging and Prosecuting Child Sexual Abuse in NJ Special Deputy Attorney General/Acting Assistant Prosecutor John Esmerado September 13, 2013

Multi Disciplinary Team case- Co- Occurring DCCP/Prosecutor Case DCPP must forward all allegation to County Prosecutor for Investigation. N.J.S.A. 9:6-8.36a. County Prosecutor must use Multi-Disciplinary Team to provide clinical, investigative and legal services. N.J.S.A. 9: DCPP- safety assessment-risk based Prosecutor-probable cause-fact based Age of sexual misconduct elevated from 16 to 18 for Child Endangering 2C:24-4a (7/1/13); sexual gratification, 2C:14 vs. impair debauch morals incongruity.

Who Refers Cases to DCPP

Who Refers Case to Prosecutor

2012 Number of Children Substantiated by County of Incident and Type of Maltreatment All CPS Reports (1) County of Incident (2) Type of Maltreatment Physical AbuseSexual Abuse Children with CPS Report to DCP&P Substantiated% Substantiated Substantiated w/ Prosecution Involvement % Prosecution Children with CPS Report to DCP&P Substantiated% Substantiated Substantiated w/ Prosecution Involvement % Prosecution Atlantic 1,046545%1528% %1855% Bergen 1,593795%1013% %2653% Burlington 1,295494%612% %3363% Camden 2, %2517% %4052% Cape May %436% %1077% Cumberland %1931% %2867% Essex 2, %3927% %8975% Gloucester %510% %1652% Hudson 1, %3030% %6073% Hunterdon 18963%233%6846%00% Mercer 1,235716%2434% %1954% Middlesex 1,886553%1120% %2759% Monmouth 1,453856%3238% %1843% Morris %732%250166%1594% Ocean 1,445433%1126%377246%1875% Passaic 1,746412% %2642% Salem %18%10099%333% Somerset 72071%114% %969% Sussex %436% %13100% Union 1,610694%1420% %3369% Warren 36872%571% %550% Out of State 3226%150%1218%1100% Grand Total 25,4941,1244%26724%6, %50762%

2012 Data from 10 NJ CACs (Sussex, Passaic, Morris, Essex, Union, Hudson, Middlesex, Monmouth, Burlington, Camden) NCA Statistics - Statistical Report 2012 State: New Jersey Total number of children served at the CAC: 2,567 Gender of children: Male -795 Female- 1,768 Undisclosed- 4 Age of children at first contact with center: 0-6 years years years- 802 Undisclosed- 0 Total number of alleged offenders: 1,961 Relationship of alleged offender to child: Parent- 540 Stepparent- 127 Other Relative- 431 Parent's boyfriend/girlfriend- 223 Other known person- 505 Unknown- 186 Age of alleged offenders: Under Age 13 to Age ,247 Alleged Offender Age Undisclosed- 387 Types of abuse reported: Sexual Abuse- 1,704 Physical Abuse- 494 Neglect- 310 Witness to Violence- 74 Drug Endangerment- 13 Other -115 Race or ethnicity of total children seen at CAC: White- 748 Black/African American- 840 Hispanic/Latino- 710 American Indian/Alaska Native- 2 Asian/Pacific Islander-15 Other -180 Undisclosed- 72 Number of the children receiving services: Medical Exam/Treatment 700 Counseling Therapy 508 Referral to Counseling Therapy 448 Onsite Forensic Interviewing 1,108 Offsite Forensic Interviewing 3 Other Services Provided By CAC Children Adults Age Unknown Case Management/Coordination 3, Prevention 3,210 4,698 0 Other Categories 994 3, /20/2013 Page 1 of 1

Disposition by Trial in NJ Overall, post indictment, 70% of all cases resolve via plea, 30% via trial (NJ AOC website, plea bargaining, 2013.) Sex offenders plead more frequently, 92%, (NJ Analysis of Prosecutor’s Data, 2005),most likely due to risk of lengthy terms of incarceration.

OUTCOMES: No Uniform Data on Prosecution Outcomes- UCR vs. other more reliable and expansive sources (MDT; DCPP) 150 Convictions for Aggravated Sexual Assault (child less than 13/ sexual penetration.)

To Charge or Not to Charge: 1.Is the case supported by sufficient facts to establish probable cause? Yes if have sworn or verified statement of single victim/survivor; Grand Jury permissible as well. 2.Can the case be proven beyond a reasonable doubt? Much more problematic. 3.Not every case referred results in a criminal charge: insufficiency of facts 4.Guardian/Victim to be apprised either in-person or in writing of decision not to charge.

Investigating Child Sexual Abuse Emergent/Non-Emergent- on site forensic interview; non leading questions/open-ended inquiry. Post Michaels, 1994, Open Ended-Finding Words/Cornerhouse- rapport building, anatomy inquiry, touch inquiry, abuse disclosure, closure; DVD; Half a Nation by 2010: Interviewing and Preparing Children for Court, Walters, et al, NCR/APRI, 2003;DVD access- confidentiality agreement. Limited interviews (2)- forensic and medical; avoid re- interview; not “Tell me again and again.” Forensic Interview vs. Clinical Interview Access of perpetrator to child- 2C: vs. Title 9 Bail no contact order and SORO.

Internal Narrative Consistency Is there an age-appropriate consistency based on chronology? Beginning, middle and end vs. terse account, e.g.,“He asked me to come to his room to watch tv, asked me to close the door, touched me on my private and said don’t tell” vs. “He raped me.”; strong need for narrative detail of any length. case built upon initial description over the course of the forensic interview. piecemeal or whole disclosure immaterial so long as detailed account explained over the course of a single interview. Eyewitness testimony: perception/acquisition, storage and retrieval; Dr. Elizabeth Loftus- weapon focus phenomena.

Consistent and Prior Inconsistent Statements Credibility/Veracity-established by parallel and consistent recitation of facts at forensic interview/statement, pre-trial preparation, medical exam and trial testimony. Criminal Justice calibrated to educated adult witnesses; how many times very problematic in light of dissociation; closed circuit television testimony rare- severe emotional or mental distress. Diminishing privilege- descriptions of a sexually abusive event to a therapist/clinician as well as DCPP records with event descriptions routinely subject to in camera review by court.

Taint vs. Co-Occurring Has disclosure been made to a trusted confidant? Is disclosure tied to a recent conflict? Are there any other explanations of advanced sexual knowledge ?(access to Internet pornography, inadvertent observation of parental sexual activity in the home; prior referrals unsubstantiated or false; long standing and vitriolic custody dispute. CARES/Dr. Finkle study- 20 year retrospective analysis- 100% of juvenile sex offenders viewed digital pornography prior to initiating sexual abuse with member of family circle.

Corroboration and Opportunity Web Cites visited- deleted material can be reconstructed- Internet Evidence Finder. Cell Phones, text messages, tweets, s. Sexting- request to send and/or photo sent; 2 nd deg. 2C:24-4, Endangering Minor by Distributing Child Pornography; locate data via CDW, search warrant and consensual intercept. Opportunity to commit crime- non offending caregiver out of home/work/errands. Other siblings diverted/occupied. Omeagle, KIK, instagram (No records of contemporary text or chat.)

Absence of DNA and Medical Evidence Less than 12 % of all cases have any form of medical evidence (vaginal or anal) tear where there is disclosure within 24 hours. (See Adams, et al, “It’s Normal to be Normal: Examination Findings in Legally Confirmed Child Sexual Abuse,” Pediatrics, Sept Less than 25% of all evidence csa kits produce any results; of those collected only 65% produce identifiable DNA, Thackeray, et al, “Forensic Evidence Collection in Child Sexual Abuse Cases,” Pediatrics, Sept hours is the gold standard for both evidence collection and medical exam

A.C.E.-decoding sex crimes Age- less than 13; 13-16; 16-17;18. Conduct- sexual penetration, sexual contact, sexual conduct. Elevation- based on relationship- third to second for parent, second to first in loco parentis. Four degrees: 1 st and 2 nd - custodial; 3 rd and 4 th - probation presumptions.

Sentencing In Relationship to Culture Sexual saturation (culture) vs. sexual repression (law) “Fear factor”- Lehman, N., New Yorker, Mar. 27, Bill O’Reilly ignores empirical data and indicates “Parents are rightfully worried about children being abducted or abused in their own neighborhood.” O’Reilly, “No Spin Zone,” 2001.; “To Catch a Pedator,” NBC. NJ Property Deeds- warranty that neighbor is not a registered Tier 3 registered sex offender. (Mulligan v. Panther Valley Property Owners, 2001.) $124 billion cost of sexual abuse, Fang, et al, “Economic Burden of Child Maltreatment and Its Implications for Prevention,” Child Abuse and Neglect, Feb. 2012, pp

Recidivism Debate “Megan’s Law: Assessing Practical and Monetary Efficacy,” Zghoba, Witt, Vesey, et. al, NJ Dept. of Corrections, Natl. Inst. Of Justice, no impact on victimization #s or length of sentence or first re-arrest for sexual offense; significant impact on parole release dates due to NERA; understand a post 1995 data set in NJ vs. “Recidivism of Sex Offenders Released in 1994,”Durose, et al, NIJ (2003)- sex offenders with 5.3 % sex related arrest thee years after release; 43% non sexual offense re-arrest.

Sentencing 101 Aggravating and Mitigating Factors; focus on offense and not offender first for uniformity and to avoid disparate or selective sentencing results; balancing factors from a mid point; age of victim substantially lower than statutory threshold, e.g. 6yoa vs. 13 yoa; HOLDING PERPETRATOR ACCOUNTABLE FOR HARM CAUSED. No Early Release Act- 85% parole disqualifier. Avenel Exam- Repetitive, Compulsive, Amenable to Treatment; no good time credit for non-cooperation if Avenel Eligible; ( Avenel Testing: Shipley 2 Test Cognitive Ability, Non- Verbal Intel-4, House Tree Person Test, Sexuality Questionnaire, Wilson Sex Fantasy, Internet Sex Screening, Bumby Cognitive Distortions Scale, Disclosure Questionnaire, Bumby Cognitive Distortion and PAI.

Juvenile Disposition Treatment Innovation Wrap Around Intensive Services for Families, Sexual Abuse Education and Treatment through Children’s and Family Services Essex County (OJJDP model); Union and Monmouth exploring Child between 10 and 14 commits sex act with member of family network; matter comes to attention of police, Family Court of DCPP; no prior sexual offense involvement; child will benefit from group and individual counseling; pre or post adjudicative; caregiver participates in counseling; assessment and then psycho-educational group – acknowledge inappropriate sexual behavior, learn sexual behavior rules, improve impulse control-24 weeks; families; 0% recidivism in follow up; Dr. Barbara Bonner.

Primary Prevention NJ Sexual Violence Primary Prevention Plan, Dept. Health and Human Services, Dept Community Affairs, Aug. 2009, NJ one of six CDC EMPOWER sites- focus on capacity building for prevention along with resource allocation post victimization services; change social norms that promote gender equity, respect for women and girls so that all people are free from violence and threat of violence; field in infancy. marypreventionplan_aug2009.pdf;

Future Reading Suggestions Interviewing Children-Poole and Lamb, Investigative Interviews of Children, APA, (best overview of research, more balanced than Ceci’s Jeopardy in the Courtroom, APA, 2002). See also Goodman, Bottoms, Child Victims, Child Witnesses, Guilford Press, 1993 (excellent issue framing based on data). Cultural competency- Fontes, Child Abuse and Culture, Guilford Press, 2005 (good overview of multi- cultural orientation in treatment and interviews). Psychology of Observation- Loftus, Eyewitness Testimony, Harvard, 1996 (single best study on how a witness’s idiosyncratic reactions, questioning format and external environment influence recall) Domestic Violence-Stark, Coercive Control, Oxford, 2007 (entrapment of women through psychological means more frequent than use of violence). Social Media and Bullying- Simmons, Odd Girl Out: Hidden Culture of Aggression in Girls, Mariner, 2002, Information and Polarization in Culture- Sunstein, Infotopia-How Many Minds Produce Knowledge, Oxford, Introversion and Culture- Cain, Quiet: The Power of Introverts in a World that Can’t Stop Talking, Extra Libris, 2012.