Presumption of Innocence Denied In Virginia

Although we all like to believe that anyone accused of a crime has the presumption of innocence until proven guilty by a court of law, that isn't necessarily true. Certain crimes, especially those which allege sexual abuse, molestation or battery, carry a different presumption; guilty until proven innocent, although lawmakers emphatically deny that is the case. In Virginia, police, prosecutors and politicians have made locking up  alleged sexual offenders a statewide priority, according to a recent article in the Hampton Roads Daily Press. Unfortunately, such zeal has created tremendous harm in some cases, in the form of false allegations of sexual abuse made against innocent people, one of whom is a very good friend. 

Consider the following scenario: a parent, angry at an ex-spouse, one or both of her parents, or anyone else for that matter, makes a false allegation of sexual abuse, stating that their child has been either physically or sexually abused. This parent calls the police, child protective services, or both to initiate the "investigative" process. The detective or police officer taking the report takes the accusation at face value and declines to investigate further, firmly convinced that not only has a "crime" been committed, but the person accused has committed said "crime."

It doesn't take much after that for a falsely accused person to be charged, arrested and incarcerated, especially if the accused doesn't have the funds to hire a private attorney. Interviews with the child witness are usually not recorded, although they are supposed to be, and are not made available to the accused or his defense attorney to challenge as "evidence". Thus, a person who is completely innocent of any wrongdoing can be sent to jail simply because an accuser's lie was accepted without question or investigation.

False allegations of sexual abuse have risen dramatically over the last ten years, not just in Virginia but across the United States, with innocent people being wrongly arrested, tried and convicted. Although it more commonly occurs in divorce and custody cases, where one parent purposely makes a false allegation against the other for personal gain, accusations have also been made against family members, teachers, and other members of society, often with terrible and tragic consequences.

What Can Be Done?

The question we must answer is; what can be done to prevent these gross miscarriages of justice from occurring? As the law stands now, anyone can be falsely accused of a sex crime, have his or her life virtually destroyed, yet there is no criminal penalty for the person who knowingly, purposely and maliciously makes a false allegation of physical or sexual abuse of a minor. Anyone who deliberately makes a false allegation of sexual abuse against another is purposely using the criminal justice system to commit the most violent form of abuse short of murder, so why are these false accusers not held accountable by law?

If it became a Class A or B felony to knowingly make a false allegation of sexual or physical abuse, if it could be proven that a person acted intentionally to cause bodily or emotional harm to the person falsely accused by making an allegation that sends the accused to jail, the occurrences of deliberate false allegations could be significantly reduced in a short time. No one wants to risk ending up in jail or prison themselves, especially if the penalty is at least a five-year prison term, simply to satisfy a personal grudge or grievance.

How Police and Prosecutors Can Help

Police and prosecutors who want to do everything possible to prevent innocent persons from ending up in jail can begin taking steps as well. First, detectives who are called to investigate false allegations of sexual abuse of a minor must be careful about developing pre-conceived opinions before doing a thorough investigation to determine if in fact a crime has even been committed. Detectives and social services representatives who interview the child who claims to have been abused need to avoid the practice of asking leading and suggestive questions that will only "validate" a false allegation.

Instead, the child should be allowed the opportunity to provide free narrative, using his or her own words to describe what really occurred. Questions beginning with who, what, when, where, why and how will give a far more accurate account of what did happen – if anything – than constant leading questions such as "where did [accused] touch you." Children cannot provide accurate details on events that never took place. Care must be taken to avoid treating child accusers as "victims" before an investigation has even begun, let alone concluded.

As a parent, I applaud Virginia's commitment to lock up sex offenders for crimes against children. Yet as a citizen, I strongly urge police, prosecutors and judges to exercise extreme caution, to make sure that our rights to due process of law and the presumption of innocence until proven guilty aren't sacrificed at the altar of politics. Do we really want to lock up the innocent along with the guilty?

If all it takes for a person to be charged, arrested and very possibly convicted is a false accusation by a person determined to satisfy a personal grudge or agenda, with no real facts or evidence to back it up, then we may as well dust off the rack, the scaffold and the guillotine. For we will then be back to the terrifying days of the Inquisition, the Salem Witch Trials, and the Reign of Terror following the French Revolution. Somehow, I don't think that's what Governor Mark Warner and Governor-Elect Tim Kaine had in mind when they promised to "keep Virginia moving forward."