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For child sex abuse victims, court can be another place to feel unsafe

Prosecutors are mulling ways to make testifying easier for children, but standing in the way are the state’s strong defendant’s rights laws.
Prosecutors are mulling ways to make testifying easier for children, but standing in the way are the state’s strong defendant’s rights laws.

The 10-year-old girl sat at the witness stand, fiddling with a soft pom-pom ball she had found in a sewing kit. Her head down, her voice barely above a whisper, she could bring herself to look up only once — when the prosecutor asked her if the neighbor accused of molesting her when she was 6 years old was in the courtroom.

The girl glanced up at the defense table, pointed to the 63-year-old man seated there, and quickly looked down. Suffolk Assistant District Attorney Brenna Flynn gently asked the child what the abuse felt like.

“It hurted,” she said softly.


The case, heard last summer, ended in a mistrial after the jury was unable to come to a unanimous decision on the most serious charge, statutory rape of a child. The girl, who was on the stand for nearly three hours, did not want to testify again in a second trial.

On Oct. 31, prosecutors were forced to tell the judge they could not move forward with the case. The man accused of molesting the child was allowed to walk out of court that day.

Such an outcome in child sex abuse cases is not unusual in Massachusetts, Flynn said. But other states have found ways to make testifying less terrifying for children.

Some allow children to testify out of the courtroom, using a closed-circuit camera, or allow comfort dogs to sit with them on the witness stand, sometimes napping at their feet. In Canada, child witnesses in such cases are brought into the courtroom through a back door so they do not have to walk past the defendant, and they sit behind a screen where they are shielded from the alleged perpetrator, who can still watch the witness from a television monitor.

Traditionally, Massachusetts has not allowed for these types of accommodations. The US Supreme Court has ruled that a vulnerable witness may testify from a location away from the courtroom. But the Massachusetts Supreme Judicial Court has adhered strictly to the state Constitution, which specifically notes that a defendant has the right to confront an accuser “face to face.” Prosecutors have been hesitant to ask a judge to allow a comfort dog or even a stuffed animal to be brought into the court for fear it could lead to a successful appeal of a conviction.


Suffolk District Attorney Daniel F. Conley said he is considering lobbying the state Legislature for a bill that would allow prosecutors to seek ways to make a child under 16 more comfortable on the stand.

He pictures being able to bring the office’s comfort dog, Indy, a 4-year-old golden retriever-Labrador mix, into the courtroom while a young child testifies.

The courtroom is a “very intimidating place,” Conley said. “It would be nice, if [a child] needed Indy, to have him with her.”

Defense attorneys, however, argue that if such accommodations become widespread they would create a disadvantage to defendants because a jury may find the testimony of a child accompanied by a dog more credible than that of other witnesses.

“To have a dog there sends a message to the jury that the trauma is real and if it’s real it’s because a crime occurred,” said Patty DeJuneas, a Boston appellate attorney who has represented clients accused of child sexual assault. “There would have to be very, very careful instructions to the jury about what they can infer from [a dog’s presence].”


Defense lawyers say it is important to recognize that juries are less likely to be open-minded about defendants in sex assault cases.

“An adult charged with sexual abuse does not enjoy the presumption of innocence in the eyes of the jury,” said Michael Hussey, president of the Massachusetts Association of Criminal Defense Lawyers. “When you individually question a juror in a sex case . . . a prospective juror will tell you, ‘I can’t believe a child would lie about this case. Pedophilia is the worst kind of crime.’ You hear it over and over again.”

David M. Siegel, a law professor at New England Law in Boston, said the state’s highest court has suggested ways to protect a defendant’s rights and still make a courtroom less intimidating to children. Judges can allow for smaller chairs for young witnesses, for example, or decline to wear a robe to seem less imposing. A child’s parent or favorite toy can be near the witness stand, Siegel said.

“It’s an open question as to the degree of accommodation,” he said.

More courtrooms across the country are looking for ways to make the environment warmer, said Ellen O’Neill-Stephens, founder of Courthouse Dogs Foundation, a nonprofit that helps people in the legal community set up facility dog programs. The organization estimates there are 125 such dogs in 34 states, largely in child advocacy centers, prosecutors’ offices, and police departments. But O’Neill-Stephens said the dogs can also be used by the defense to help a frightened witness or to calm a mentally ill defendant.


“We need to get away from this idea that subjecting people to emotional trauma has to be part of the process,” O’Neill-Stephens said.

The child who testified last summer is now in the fifth grade. She walks the streets with her head down, always afraid she’ll see the man she said hurt her. (The Globe does not identify victims of sexual assault without their consent.)

“He knows where I live,” she said. “He knows where I go to school.”

But she is proud she took the stand. She is working with the Suffolk district attorney’s program, Now You See, which shines a spotlight on child abuse by photographing the eyes of victims then displaying the images in public places around Boston.

The day before Thanksgiving, Jacquelyn Lamont, a forensic interviewer and the creator of Now You See, met with the girl at the Bowdoin Street Health Center in Dorchester and snapped a photo of her eyes. Lamont asked her if she had thought of an alias to go with the photo.

The girl paused, then raised her head and beamed. “I just thought of it,” she said. “Hope — because I had hope in myself.”

Prosecutors have been hesitant to ask a judge to allow a comfort dog or even a stuffed animal to be brought into the court for fear it could lead to a successful appeal of a conviction.Suzanne Kreiter/Globe staff

Maria Cramer can be reached at Follow her on Twitter @globemcramer.