--------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200007Date: 02/25/95 From: TRAVIS BALLARD Time: 04:12am \/To: ALL (Read 4 times) Subj: (2) Preparing for Custody Trial For information on joining NCMC and receiving the Manual, call 1-800-733-DADS. The text file PREPCUST.TXT is downloadable from NCMC BBS, 1-602-840-4752, FidoNet 1:114/74) NATIONAL CONGRESS FOR MEN AND CHILDREN PREPARATION FOR TRIAL OF THE CHILD CUSTODY CASE (CONTINUED) 7. ISOLATE THE "FACTORS UNDER THE STATUTE " WHICH ARE CLOSE CALLS, LIKELY WINNERS , LIKELY LOSERS OR UP FOR GRABS. 8. OBTAIN ALL AVAILABLE SUPPORTING DOCUMENTATION. Your attorney should supoena the employment records, child's school records, family medical records, pension information, insurance claims, financial statements and loan applications... dig , dig , dig... Consider random curb side garbage pick-ups for valuable information and use of private investigators. 9. IDENTIFY ACTS OF PARENTAL ALIENATION -"The Parental Alienation Syndromne" by Richard A. Gardner 1- 212-567-8989 -"Children Held Hostage" by Stanley Clawar PhD 1 610-525-5725 - Created memory in children Terence Campbell PhD 1- 810-939-5110 - False sex abuse allegations Ralph Underwager PhD 1-507-645-8881 -"The Suggestibility of Children's Recollections" - American Psychology Association 10. PARTICIPATE IN DISCOVERY - Help your attorney develop questions for the other parent and their witnesses so that interrogatories, requests for admissions and depositions can be done EARLY in your case. DO NOT MISS DEADLINES FOR ANSWERING OR FILING YOUR DISCOVERY REQUEST - YOUR FAILURE TO PREPARE IS NOT REASON FOR THE COURT TO ADJOURN YOUR CASE AND OFTEN ADMISSIBLE EVIDENCE IS EXCLUDED BASED UPON FAILURE TO COMPLY WITH OR PARTICIPATE IN DISCOVERY WITHIN PRESCRIBED DEADLINES. 11. CONSIDER THE ROLE OF THE EXPERT WITNESS - DO YOU NEED PSYCHOLOGICAL , OR MEDICAL TESTIMONY (generally it is important for fathers to use psychologists in order to establish adequate proof that the children will develop better under his care than the mother's. (Refer to Michael Lambs research collection entitled , "The Role of the Father in Child Development" as a valuable resource. If your spouse has an expert , then you should have one. Experts can base their opinion on otherwise inadmissible evidence such as hearsay. Disclose the name of your expert before the deadline to do so, otherwise , you may not be able to use his or her testimony. 12. DEVELOP YOUR "THEORY OF THE CASE" AND STICK WITH IT. Rather than concentrating on marginal neglect or abuse consider the approach that "mom's doing her best", but I can do better and the children will do better with me. Then stress your positives. 13. IF YOU ARE THE DEFENDANT/RESPONDANT, FILE A COUNTER COMPLAINT REQUESTING AFFIRMATIVE RELIEF SO AS TO PREVENT THE DISMISSAL OF YOUR CASE UNILATERALLY BY YOUR CHILD'S OTHER PARENT FOR TACTICAL CONSIDERATION. 14. PREPARE A "TRIAL BRIEF". THIS SHOULD CONTAIN: A HISTORY OF YOUR CHILDS DEVELOPMENT INCLUDING YOUR INVOLVMENT, SUMMARY OF THE TESTIMONY OF EACH WITNESS YOU EXPECT TO CALL AND PROPOSED CONCLUSIONS OF LAW. [SUBMIT TO THE COURT AT THE LAST ALLOWABLE MOMENT.] 15. A SETTLEMENT CANNOT BE APPEALED , ABSENT PROVABLE FRAUD, SO AVOID PARTIAL SETTLEMENTS. (IT IS NOT OVER UNTIL IT'S ALL OVER.) SO BE PREPARED TO CALL YOUR FIRST WITNESS IF YOU DON'T LIKE WHAT IS BEING OFFERED. OFTEN THE OTHER SIDE WILL LOSE BECAUSE THEY FAILED TO PREPARE THEIR CASE FOR TRIAL. GOOD LUCK - Travis Ballard Esquire- President NCMC 1-517-263-7822 (Conclusion of two part post of Text file PREPCUST.TXT from NCMC BBS) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200008Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (1) Dr. Gardner: CAPTA/HR3588 (PART ONE OF THREE) Here is more information for you about the recent Congressional hearings into repeal or reform of CAPTA, The Mondale Act, which caused the states to totally immunize social workers from liability in cases of false accusations of abuse. Since the enactment of this immunity, false accusations of abuse have flourished. Following is the written testimony of Dr. Richard Gardner, noted expert in the field of child abuse, during hearings on H.R. 3588, which would repeal the Mondale Act. It comes via F.R.E.E. member Ferrel, who got it from Dr. Gardner's office. My thanks to him for his efforts. Brent Wellman Director for Legislative Affairs, F.R.E.E.[tm] --------- TO: THE SUBCOMMITTEE ON EARLY CHILDHOOD, YOUTH AND FAMILIES: FROM: Richard A. Gardner, M.D. RE: HR3588 - Proposed Revision of the Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 93-247 [referred to as "The Mondale Act"]) It is my understanding that the Committee on Economic and Educational Opportunities will be considering either repeal or modification of CAPTA. Full repeal of CAPTA would be a terrible mistake: it would deprive truly abused children of the protection they sorely need, resulting in massive political upheaval as the mental health and legal communities, the public, and the media struggle with the fallout from this decision. Equally important, it would deprive protection of those who might be falsely accused of such abuses, already a media highlighted public concern. I recognize fully that financial considerations are an important factor in the Committee's decision. I believe that the implementation of the modifications described below--modifications I will be presenting in my forthcoming testimony before the Committee--will not only save the federal government significant money but also preserve the important functions of CAPTA: 1. The federal absolute immunity proviso must be significantly modified. Absolute immunity, like absolute power, corrupts and fosters irresponsible exploitation. In the U.S. immunity from prosecution has traditionally been available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors. Total immunity encourages frivolous, fabricated, and even malicious accusations. Qualified immunity, such as that enjoyed by police officers, is a reasonable replacement. States that maintain the absolute immunity provision should not be entitled to federal funding. This change alone would reduce significantly the flood of false referrals being generated at this time, resulting in a formidable savings of federal monies. However, simply modifying the immunity proviso is not enough. There must be potential consequences for a false accusation whether it be deliberately made, the result of negligence, the product of delusion, or alleged for any other reason. Promulgating a false abuse accusation should be considered a criminal act, ranging in severity from a misdemeanor to a felony, depending upon the decision of the court. Malice should not be the sole standard of culpability for this crime because proving malice is extremely difficult. Rather, reporters should be held to an objective, reasonable person standard, i.e., whether an objective, reasonable person, in the same situation, would consider abuse to have taken place. Each state must have in effect a state law providing for the prosecution of any person who makes a false accusation in accordance with the objective, reasonable person standard. A false accuser (whether it be an individual or a governmental agency) should be required to pay for all legal costs of an accused party who is proven innocent in a court of law. Persistent failure to prosecute false accusers should deprive the state of federal funding. (CONTINUED IN PART 2 OF 3) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200009Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (2) Dr. Gardner on CAPTA/HR3588 (DR. RICHARD GARDNER'S TESTIMONY, CONTINUED, ON REFORM OF THE MONDALE-CAPTA BILL IN THE U.S. HOUSE OF REPRESENTATIVES) 2. The mandated reporting clause must be dropped. It has resulted in the reporting of the most frivolous and absurd accusations by two-and- three-year-olds, vengeful former spouses, hysterical parents of nursery- school children, and severely disturbed people against their elderly parents. Highly skilled examiners, professionals who are extremely knowledgeable about sex abuse, examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who they often know to be be overzealous, inexperienced, and even incompetent. Yet they face criminal charges if they do not report these accusations. Mental health professionals who are licensed by the state to practice should be given the discretion to report or not, depending upon their conclusions. States that require mandated reporting should not be entitled to federal funding for child abuse programs. This change would also reduce significantly the flood of false referrals being generated at this time, again resulting in a formidable savings of federal monies. 3. The federal law should require investigators and evaluators (both in the law enforcement and mental health realms) at all levels to routinely notify and invite for voluntary interview(s) every individual accused of child abuse or neglect. (These suspects, of course, must first be informed of their legal rights.) The failure to routinely extend such invitations should deprive the agency of funding. Each and every investigator and/or evaluator licensed to conduct such evaluations should be required to interview the accuser, the alleged child victim, and extend an invitation to the accused to be interviewed as well. In some cases the accused will accept the invitation and in others he or she may not. Courts of law will only consider admissible evaluations conducted by people who have extended invitations to all three parties. 4. All investigatory and evaluative interviews should be videotaped. States that do not require videotaping of such interviews should be deprived of federal funding. Nonvideotaped evaluations should not be admitted into a court of law, nor should testimony based on nonvideotaped investigations or evaluations. 5. Interviews in which suggestive materials are used, specifically anatomically detailed dolls, body charts, and/or other materials that indicate genital and/or sexual organs should not be admissible in a court of law. States that admit such materials into courtroom testimony should be deprived of federal funding. 6. States in which individuals suspected of child abuse are deprived of constitutional due-process protections should not be provided federal funding. 7. The federal laws now provide funding for child abuse research, education, prevention, identification, prosecution, and treatment. Such educational programs must be periodically updated to include new development in all these areas. All mental health and legal professionals involved in child abuse should be licensed. (CONTINUED) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200010Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (3) Dr. Gardner on CAPTA/HR3588 (THIRD AND FINAL POST OF TEXT FILE CAPTA.TXT DOWNLOADABLE FROM NCMC BBS (601) 840 4752, FidoNet 1:114/74) (CONTINUED) As is well known, statistics can easily be manipulated, especially in the realms of child sex abuse. A typical "statistic" is one in which an organization states that X percent of its evaluations prove "unfounded." The attempt here is to prove that the agency is being unbiased and it is equally receptive to an "unfounded" as well as a "founded" conclusion. The problem here is that many of the "founded" cases involve innocent individuals whose child accusers have been subjected to the aforementioned coercive interview techniques. From the point of view of the innocent person who has been found guilty because of such techniques it does not matter whether the founded group represents even one percent of all the accused. From that person's point of view he (she) has been falsely accused and even imprisoned. Accordingly, the percentages of those investigations and evaluations that are founded vs. unfounded is totally unrelated to the problems we are dealing with here. As mentioned, full repeal of CAPTA would be a terrible mistake. First, purely from the political point of view, it would suggest to the public that the Committee has no sympathy for sexually abused children. The overzealous and naive people who have contributed so significantly to the problem with which we are dealing here have waved this banner continually. The facts are that there are indeed hundreds of thousands--and possibly millions--of children who are being abused and neglected and we are morally obligated to provide them with protection, etc. However, there are also thousands (we will never know how many thousands) of individuals who have been falsely accused of sexual abuse. CAPTA can protect these people as well. The implementation of these changes into CAPTA will result in a moratorium on federal fundings at this point. Only when the states have demonstrated that they have complied with these provisions will federal funding again be considered. The implementation of these proposals should ensure protection for truly abused children as well as those alleged perpetrators who might be falsely accused. It would also save the federal government money, both because there would be fewer false accusations as well as a moratorium on federal funding pending the implementation of these proposals--especially the review of cases of those convicted of child abuse. The complete repeal of CAPTA will dump the whole CAPTA problem in the laps of the 50 different states. If this happens, the likelihood of quality reform would be small and the chances of perpetuation of a system gone amuck almost inevitable--at least during the next few years. Sincerely, Richard A. Gardner, M.D. Clinical Professor of Child Psychiatry Columbia University College of Physicians and Surgeons THE FOREGOING TEXT IS AVAILABLE AS FILE "CAPTA.TXT" From National Congress for Men & Children BBS, (602) 840 4752, FidoNet 1:114/74. --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200011Date: 02/25/95 From: GREG RHOADES Time: 05:37pm \/To: ALL (Read 4 times) Subj: VOCAL-Pro Vocal Hi... Can anyone tell me if there is a VOCAL or ProVocal in TN? Also, There used to be a ProVocal in Toledo OH is it still there? If anyone has a number or fax number pls let me know. Thanks Greg. --- InterEcho 1.03a * Origin: Rock BBS-Nashville TN (615) 834-3914 (1:116/33) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200012Date: 02/25/95 From: TRAVIS BALLARD Time: 04:12am \/To: ALL (Read 4 times) Subj: (1) Preparing for Custody Trial (Following text is a draft of the section on Preparing for Custody Trial in the new revision of the Manual of the National Congress for Men and Children (NCMC) The Manual is one of the beneficial documents received by members of this nationwide fathers' organization. Travis Ballard is President of NCMC, and a practicing attorney in the Detroit, Michigan area. Some of the comments refer to Michigan law, and should be read in light of your own state's statutes as to custody criteria, etc. For information on joining NCMC and receiving the Manual, call 1-800-733-DADS. The text file PREPCUST.TXT is downloadable from NCMC BBS, 1-602-840-4752, FidoNet 1:114/74) NATIONAL CONGRESS FOR MEN AND CHILDREN PREPARATION FOR TRIAL OF THE CHILD CUSTODY CASE 1. IDENTIFY APPLICABLE LAW - This is generally found as a definitional section within the jurisdictional state's provisions regarding factors to be determined by the court in its findings of "BEST INTEREST 0F THE CHILD". This will vary depending upon which state has jurisdiction of your case. In Michigan the best interest of children are determined through an analysis of twelve factors (set forth completely in the questionaire section of this manual). In Kansas it is defined within three factors. Regardless of your jurisdiction, your lawyer must be prepared, engage in proper discovery and have a strategy. 2. IF YOU ARE LIVING WITH YOUR CHILD AND THE OTHER PARENT, DO NOT MOVE OUT WITHOUT YOUR CHILD OR THIS FACT ALONE MAY BE DETERMINATIVE OF THE FINAL OUTCOME. A skillful attorney will argue that you've acknowledged the appropriateness of the other parent as a caretaker by your own action in leaving the child in their care. 3. CONCENTRATE ON DISTINGUISHING YOUR "PARENTING ABILITIES" AND "BONDING" WITH THE CHILD FROM THAT OF THE OTHER PARENT - THE PROOFS AS TO THESE CONSIDERATIONS OFTEN WILL DETERMINE THE "BURDEN OF PROOF" WHICH WILL BE APPLIED BY THE JUDGE- AVOID "THROWING DIRT " AT THE OTHER PARENT: IF IT MUST BE DONE LET YOUR WITNESSES DO SO, OTHERWISE, YOU MAY APPEAR ANGRY AND NOT MOTIVATED BY YOUR CHILD'S "BEST INTEREST". "BURDEN OF PROOF" is generally decided based upon an analysis of whether or not an "established custodial environment" exists between the child and either parent. THIS IS ,IN MANY STATES, DECIDED BASED UPON WHO HAS BEEN THE "PRIMARY PARENT". Primary parent is described in the manual section VIII-12. "ESTABLISHED CUSTODIAL ENVIRONMENT" (ECE) is defined through case law. The Michigan courts decide whether an established custodial environment exists by answering the following question: "Over an appreciable period of time, has the minor child come to look to one parent over the other for parental comfort, guidance, necessities of life and discpline?" (This can be effectively used to argue maintainance of the status quo.) If the answer is "yes", then that parent has an ECE and the burden of proof is: "CLEAR AND CONVINCING EVIDENCE" If the answer is "no", then the burden of proof is : "PREPONDERANCE OF THE EVIDENCE". 4. PREPARE A CHRONOLOGY OF ALL RELEVANT EVENTS, OCCURRENCES OR POSSIBLE FACTORS WHICH HAVE INFLUENCED YOUR CHILD'S UPBRINGING (I.E. PARENT'S WORK SCHEDULES, INTERFERENCE WITH CUSTODY OR VISITATION, EDUCATION, ETC. - see questionaire or chronology section of manual.) 5. ORGANIZE "PROVABLE EVENTS AND FACTS " ACCORDING TO THE FACTORS DEFINING BEST INTEREST OF CHILD WITHIN APPLICABLE STATE STATUTE. 6. IDENTIFY NEEDED WITNESSES FOR EACH FACT NEEDED TO BE PROVEN AND GET WRITTEN STATEMENTS FROM ALL WITNESSES . The LITIGATION PROCESS will often take 6 to 18 months before conclusion. Witnesses who are willing to help now need to GIVE WRITTEN STATEMENTS NOW, otherwise, cold feet, pressure from your spouse or family or claimed loss of memory may cost you the proof needed to win your case and to present the truth to the court. (CONTINUED IN PART 2) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200013Date: 02/25/95 From: TRAVIS BALLARD Time: 04:12am \/To: ALL (Read 4 times) Subj: (2) Preparing for Custody Trial For information on joining NCMC and receiving the Manual, call 1-800-733-DADS. The text file PREPCUST.TXT is downloadable from NCMC BBS, 1-602-840-4752, FidoNet 1:114/74) NATIONAL CONGRESS FOR MEN AND CHILDREN PREPARATION FOR TRIAL OF THE CHILD CUSTODY CASE (CONTINUED) 7. ISOLATE THE "FACTORS UNDER THE STATUTE " WHICH ARE CLOSE CALLS, LIKELY WINNERS , LIKELY LOSERS OR UP FOR GRABS. 8. OBTAIN ALL AVAILABLE SUPPORTING DOCUMENTATION. Your attorney should supoena the employment records, child's school records, family medical records, pension information, insurance claims, financial statements and loan applications... dig , dig , dig... Consider random curb side garbage pick-ups for valuable information and use of private investigators. 9. IDENTIFY ACTS OF PARENTAL ALIENATION -"The Parental Alienation Syndromne" by Richard A. Gardner 1- 212-567-8989 -"Children Held Hostage" by Stanley Clawar PhD 1 610-525-5725 - Created memory in children Terence Campbell PhD 1- 810-939-5110 - False sex abuse allegations Ralph Underwager PhD 1-507-645-8881 -"The Suggestibility of Children's Recollections" - American Psychology Association 10. PARTICIPATE IN DISCOVERY - Help your attorney develop questions for the other parent and their witnesses so that interrogatories, requests for admissions and depositions can be done EARLY in your case. DO NOT MISS DEADLINES FOR ANSWERING OR FILING YOUR DISCOVERY REQUEST - YOUR FAILURE TO PREPARE IS NOT REASON FOR THE COURT TO ADJOURN YOUR CASE AND OFTEN ADMISSIBLE EVIDENCE IS EXCLUDED BASED UPON FAILURE TO COMPLY WITH OR PARTICIPATE IN DISCOVERY WITHIN PRESCRIBED DEADLINES. 11. CONSIDER THE ROLE OF THE EXPERT WITNESS - DO YOU NEED PSYCHOLOGICAL , OR MEDICAL TESTIMONY (generally it is important for fathers to use psychologists in order to establish adequate proof that the children will develop better under his care than the mother's. (Refer to Michael Lambs research collection entitled , "The Role of the Father in Child Development" as a valuable resource. If your spouse has an expert , then you should have one. Experts can base their opinion on otherwise inadmissible evidence such as hearsay. Disclose the name of your expert before the deadline to do so, otherwise , you may not be able to use his or her testimony. 12. DEVELOP YOUR "THEORY OF THE CASE" AND STICK WITH IT. Rather than concentrating on marginal neglect or abuse consider the approach that "mom's doing her best", but I can do better and the children will do better with me. Then stress your positives. 13. IF YOU ARE THE DEFENDANT/RESPONDANT, FILE A COUNTER COMPLAINT REQUESTING AFFIRMATIVE RELIEF SO AS TO PREVENT THE DISMISSAL OF YOUR CASE UNILATERALLY BY YOUR CHILD'S OTHER PARENT FOR TACTICAL CONSIDERATION. 14. PREPARE A "TRIAL BRIEF". THIS SHOULD CONTAIN: A HISTORY OF YOUR CHILDS DEVELOPMENT INCLUDING YOUR INVOLVMENT, SUMMARY OF THE TESTIMONY OF EACH WITNESS YOU EXPECT TO CALL AND PROPOSED CONCLUSIONS OF LAW. [SUBMIT TO THE COURT AT THE LAST ALLOWABLE MOMENT.] 15. A SETTLEMENT CANNOT BE APPEALED , ABSENT PROVABLE FRAUD, SO AVOID PARTIAL SETTLEMENTS. (IT IS NOT OVER UNTIL IT'S ALL OVER.) SO BE PREPARED TO CALL YOUR FIRST WITNESS IF YOU DON'T LIKE WHAT IS BEING OFFERED. OFTEN THE OTHER SIDE WILL LOSE BECAUSE THEY FAILED TO PREPARE THEIR CASE FOR TRIAL. GOOD LUCK - Travis Ballard Esquire- President NCMC 1-517-263-7822 (Conclusion of two part post of Text file PREPCUST.TXT from NCMC BBS) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200014Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (1) Dr. Gardner: CAPTA/HR3588 (PART ONE OF THREE) Here is more information for you about the recent Congressional hearings into repeal or reform of CAPTA, The Mondale Act, which caused the states to totally immunize social workers from liability in cases of false accusations of abuse. Since the enactment of this immunity, false accusations of abuse have flourished. Following is the written testimony of Dr. Richard Gardner, noted expert in the field of child abuse, during hearings on H.R. 3588, which would repeal the Mondale Act. It comes via F.R.E.E. member Ferrel, who got it from Dr. Gardner's office. My thanks to him for his efforts. Brent Wellman Director for Legislative Affairs, F.R.E.E.[tm] --------- TO: THE SUBCOMMITTEE ON EARLY CHILDHOOD, YOUTH AND FAMILIES: FROM: Richard A. Gardner, M.D. RE: HR3588 - Proposed Revision of the Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 93-247 [referred to as "The Mondale Act"]) It is my understanding that the Committee on Economic and Educational Opportunities will be considering either repeal or modification of CAPTA. Full repeal of CAPTA would be a terrible mistake: it would deprive truly abused children of the protection they sorely need, resulting in massive political upheaval as the mental health and legal communities, the public, and the media struggle with the fallout from this decision. Equally important, it would deprive protection of those who might be falsely accused of such abuses, already a media highlighted public concern. I recognize fully that financial considerations are an important factor in the Committee's decision. I believe that the implementation of the modifications described below--modifications I will be presenting in my forthcoming testimony before the Committee--will not only save the federal government significant money but also preserve the important functions of CAPTA: 1. The federal absolute immunity proviso must be significantly modified. Absolute immunity, like absolute power, corrupts and fosters irresponsible exploitation. In the U.S. immunity from prosecution has traditionally been available only to specific groups essential to the functioning of the legal system, e.g., judges and prosecutors. Total immunity encourages frivolous, fabricated, and even malicious accusations. Qualified immunity, such as that enjoyed by police officers, is a reasonable replacement. States that maintain the absolute immunity provision should not be entitled to federal funding. This change alone would reduce significantly the flood of false referrals being generated at this time, resulting in a formidable savings of federal monies. However, simply modifying the immunity proviso is not enough. There must be potential consequences for a false accusation whether it be deliberately made, the result of negligence, the product of delusion, or alleged for any other reason. Promulgating a false abuse accusation should be considered a criminal act, ranging in severity from a misdemeanor to a felony, depending upon the decision of the court. Malice should not be the sole standard of culpability for this crime because proving malice is extremely difficult. Rather, reporters should be held to an objective, reasonable person standard, i.e., whether an objective, reasonable person, in the same situation, would consider abuse to have taken place. Each state must have in effect a state law providing for the prosecution of any person who makes a false accusation in accordance with the objective, reasonable person standard. A false accuser (whether it be an individual or a governmental agency) should be required to pay for all legal costs of an accused party who is proven innocent in a court of law. Persistent failure to prosecute false accusers should deprive the state of federal funding. (CONTINUED IN PART 2 OF 3) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200015Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (2) Dr. Gardner on CAPTA/HR3588 (DR. RICHARD GARDNER'S TESTIMONY, CONTINUED, ON REFORM OF THE MONDALE-CAPTA BILL IN THE U.S. HOUSE OF REPRESENTATIVES) 2. The mandated reporting clause must be dropped. It has resulted in the reporting of the most frivolous and absurd accusations by two-and- three-year-olds, vengeful former spouses, hysterical parents of nursery- school children, and severely disturbed people against their elderly parents. Highly skilled examiners, professionals who are extremely knowledgeable about sex abuse, examiners who know quite well that the accusation is false, are required by law to report the abuse to individuals who they often know to be be overzealous, inexperienced, and even incompetent. Yet they face criminal charges if they do not report these accusations. Mental health professionals who are licensed by the state to practice should be given the discretion to report or not, depending upon their conclusions. States that require mandated reporting should not be entitled to federal funding for child abuse programs. This change would also reduce significantly the flood of false referrals being generated at this time, again resulting in a formidable savings of federal monies. 3. The federal law should require investigators and evaluators (both in the law enforcement and mental health realms) at all levels to routinely notify and invite for voluntary interview(s) every individual accused of child abuse or neglect. (These suspects, of course, must first be informed of their legal rights.) The failure to routinely extend such invitations should deprive the agency of funding. Each and every investigator and/or evaluator licensed to conduct such evaluations should be required to interview the accuser, the alleged child victim, and extend an invitation to the accused to be interviewed as well. In some cases the accused will accept the invitation and in others he or she may not. Courts of law will only consider admissible evaluations conducted by people who have extended invitations to all three parties. 4. All investigatory and evaluative interviews should be videotaped. States that do not require videotaping of such interviews should be deprived of federal funding. Nonvideotaped evaluations should not be admitted into a court of law, nor should testimony based on nonvideotaped investigations or evaluations. 5. Interviews in which suggestive materials are used, specifically anatomically detailed dolls, body charts, and/or other materials that indicate genital and/or sexual organs should not be admissible in a court of law. States that admit such materials into courtroom testimony should be deprived of federal funding. 6. States in which individuals suspected of child abuse are deprived of constitutional due-process protections should not be provided federal funding. 7. The federal laws now provide funding for child abuse research, education, prevention, identification, prosecution, and treatment. Such educational programs must be periodically updated to include new development in all these areas. All mental health and legal professionals involved in child abuse should be licensed. (CONTINUED) --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: C3200016Date: 02/25/95 From: BOB HIRSCHFELD Time: 04:47am \/To: ALL (Read 4 times) Subj: (3) Dr. Gardner on CAPTA/HR3588 (THIRD AND FINAL POST OF TEXT FILE CAPTA.TXT DOWNLOADABLE FROM NCMC BBS (601) 840 4752, FidoNet 1:114/74) (CONTINUED) As is well known, statistics can easily be manipulated, especially in the realms of child sex abuse. A typical "statistic" is one in which an organization states that X percent of its evaluations prove "unfounded." The attempt here is to prove that the agency is being unbiased and it is equally receptive to an "unfounded" as well as a "founded" conclusion. The problem here is that many of the "founded" cases involve innocent individuals whose child accusers have been subjected to the aforementioned coercive interview techniques. From the point of view of the innocent person who has been found guilty because of such techniques it does not matter whether the founded group represents even one percent of all the accused. From that person's point of view he (she) has been falsely accused and even imprisoned. Accordingly, the percentages of those investigations and evaluations that are founded vs. unfounded is totally unrelated to the problems we are dealing with here. As mentioned, full repeal of CAPTA would be a terrible mistake. First, purely from the political point of view, it would suggest to the public that the Committee has no sympathy for sexually abused children. The overzealous and naive people who have contributed so significantly to the problem with which we are dealing here have waved this banner continually. The facts are that there are indeed hundreds of thousands--and possibly millions--of children who are being abused and neglected and we are morally obligated to provide them with protection, etc. However, there are also thousands (we will never know how many thousands) of individuals who have been falsely accused of sexual abuse. CAPTA can protect these people as well. The implementation of these changes into CAPTA will result in a moratorium on federal fundings at this point. Only when the states have demonstrated that they have complied with these provisions will federal funding again be considered. The implementation of these proposals should ensure protection for truly abused children as well as those alleged perpetrators who might be falsely accused. It would also save the federal government money, both because there would be fewer false accusations as well as a moratorium on federal funding pending the implementation of these proposals--especially the review of cases of those convicted of child abuse. The complete repeal of CAPTA will dump the whole CAPTA problem in the laps of the 50 different states. If this happens, the likelihood of quality reform would be small and the chances of perpetuation of a system gone amuck almost inevitable--at least during the next few years. Sincerely, Richard A. Gardner, M.D. Clinical Professor of Child Psychiatry Columbia University College of Physicians and Surgeons THE FOREGOING TEXT IS AVAILABLE AS FILE "CAPTA.TXT" From National Congress for Men & Children BBS, (602) 840 4752, FidoNet 1:114/74. --- DB 1.58/004910 * Origin: Nat'l.Cong. for Men & Children (602)8404752 (800)733DADS 1:114/74)