Judges' Shock Ruling Okays Fantasist's "Repressed Memories" Fraud

By JOANN WYPIJEWSKI

"A disgusting sinkhole of racism and vulgar prejudice” was Alexander Cockburn’s apt characterization of Massachusetts on this site the other day— and we can now add this: the commonwealth is the last sanctuary for sex fantasists keen to lock someone up, perhaps for life, on no evidence at all.
On January 15 the Supreme Judicial Court of Massachusetts distinguished itself as the last court in America to accept, in the face of voluminous research and scientific opinion to the contrary, repressed memory (also called massive amnesia, dissociative amnesia, recovered memory) as valid evidence in a criminal prosecution.

It did so in its ruling in the case of Paul Shanley, the defrocked Catholic priest who in 2005 was convicted of raping and otherwise molesting a child on nothing more than the tearful “recovered memories” of the now-grown accuser. Shanley had become the eye of the panic storm over priestly abuse that swept through Boston and then the nation in 2002. The accuser, Paul Busa, was one of three young men who all had the same personal injury lawyer; all went to the same therapists; all talked together at length; all described nearly identical heinous assaults occurring in the same place and time when they were little boys in the same religious education class; all, miraculously, experienced total amnesia after each assault, so that they went innocently with the priest to be raped again and again every Sunday for years; and all, even more miraculously, recovered their memories of these agonies at the same time, after The Boston Globe decided to make Shanley its No. 1 “depraved priest”.

They also all were plaintiffs in a civil suit that the Archdiocese of Boston settled, before Shanley’s trial and against its lawyers’ advice, thereby collecting hundreds of thousands of dollars for their claimed suffering. Busa pocketed $500,000. His friend Gregory Ford, the first to recover his memories and, until he was discredited, the poster child of priests’ victims, got at least $1.4 million, the biggest individual payment made by the Catholic Church in Boston in the midst of the scandal. All three, along with another man, who was represented by the same personal injury lawyer, made essentially the same claims but had been in a different class as a kid, were complainants in the criminal indictment against Shanley brought by the then-Middlesex County DA, Martha Coakley.

That was in June of 2002. Then one by one the prosecution’s “victims” began to fall. Gregory Ford became a huge liability. A psychically troubled individual since adolescence, over the years he had also accused a neighbor, a cousin and his father of rape. Those denunciations his parents had always quashed, but after reading a Globe article they seized the opportunity that perhaps his troubles could be tied to Shanley, and pressed Gregory to remember until he succumbed and fell to the floor crying, telling them what they wanted to hear. Coakley and company ultimately decided that Ford, who once threatened to kill his whole family and burn down their house, might not make the most stable, sympathetic victim. The other friend was also dropped. He had claimed his memories returned while traveling to and from trips to Las Vegas, where he gambled away a lot of money and might have been perceived as an opportunist out for financial gain from the church. The fourth man had his own vexed back story and took himself out of the case, disappearing after a pretrial hearing.
That left Paul Busa, a former air force man who had hated his job and was looking for a way out of the military when the scandal broke. He found it, and at the time of trial was a fireman in Newton, married and with a story to tell the jury that was unencumbered by the more troubling biographies of his friends, not to mention the phenomenal coincidence of their amnesia and convenient remembering.

On January 31, 2002, Busa was told about the Globe’s story accusing Shanley of having sex with teenagers and young adults, and his first reaction was surprise; he’d always thought of the priest as “a nice guy”, he told his girlfriend, now wife. But later when she told him his friend Gregory Ford claimed to have been serially raped by the priest from the age of 6, Busa’s memories went to the alteration department.

He spoke to Ford, after which conversation he said his own memories hit him “like a tidal wave” and he cried for six hours. Then he spoke to Ford’s personal injury lawyer, Roderick (“Eric”) MacLeish. Then he went to the air force shrink, saying he needed to take a leave from the base to return to Boston to “pursue a class action lawsuit”. The shrink encouraged Busa to explore these new memories of abuse by keeping a journal. Write anything that comes into your mind, the shrink told Busa. Think of it as an “emotional barf bag”.

Thus began the accumulation of “evidence” that alone would put Shanley behind bars for twelve to fifteen years. At the top of each page Busa wrote, “Memo to Eric MacLeish, attorney confidential communication”.

“Journaling” is a common technique among therapists who believe in repressed memory. The theory is that through free-association and other quick-writing techniques, memories stored in the unconscious might break through the filters of thought, screening, logic and control that contribute to repression in the first place. In the annals of memory cases such techniques tend to produce fantasies, which can metastasize into false memories, as writing “whatever you want” slides effortlessly from game-like exercise into emotional release into documentary record. For Busa, the journal seems to have been both “barf bag” and serious business from the start, which accounts for such anomalies as his references to Shanley as “that faggot” or “that fucking faggot” in entries for days when he admittedly had no memories of sexual abuse but was making notes for himself and his lawyer that would later form the basis of his legal complaints.

It was February 11, 2002, when he was first told that Gregory Ford had recovered his memories, but Busa backdated his journal to February 1, the day after he discovered that the Globe considered Shanley a dirty pervert. Thus in one of the earliest entries, Busa writes, “Still no memories.” A few days later: “Remembered Shanley used to pull me out of class to talk all the time.” The next day: “Remembered Shanley leading me to the bathroom. Starting to get sketched out.” As he explained in a civil deposition, by the 9th of February he was “getting weirded out”, but this was retrospective, since it would not be until two days later that he “heard Greg was coming out [as a victim], tidal wave”. To that last entry he appended an exact time, 1300 Mountain Time. It was the wrong time, since his girlfriend didn’t telephone him until about 1500: a simple misremembering, the assistant DA said at trial; he was writing fast, and he was upset.

On the witness stand Busa gave a performance of pain and rage, remembering exactly how Father Shanley had defiled him. It’s possible that he told himself, his lawyer, his journal and various therapists those stories so many times that they had become true for him. But some things that he had earlier remembered for purposes of the prosecution’s indictment he forgot by the time he reached the stand. Since, as Judge Stephen Neel himself instructed members of the jury, nothing presented in court corroborated the accuser’s central claims, it was short work to drop the counts that had hinged on those previous memories and just go forward with the ones that remained.

There never was any other evidence on which to hang the case. No physical evidence: Busa, too, would have been 6 years old when the weekly rape and abuse began, but no one noticed anything wrong with him. None of the many people who were in the church every Sunday before mass, when these crimes were supposedly committed, including Gregory Ford’s mother, who taught one of the classes and said in a deposition that she never noticed a thing. No one saw Busa alone with the defendant. None of the teachers who were called to testify supported his claim that he was regularly plucked from class by Shanley, or that he was sent out to see the priest because of bad behavior. In fact, they contradicted Busa’s claims.

It hadn’t mattered to the jury members, who apparently bought the prosecutor’s argument that people remember what is important to them, and sending a bad kid to see the priest over and over again just wasn’t important to those teachers. The absence of corroborating evidence didn’t matter to the Supreme Judicial Court either. Not that Shanley’s appellate attorney, Robert Shaw Jr., had asked the high court to review to that level of detail. But it is reflective of the general shoddy nature of the high court’s ruling that it opens its description of the case with a falsehood. It states that "the victim was observed leaving the classroom with the defendant on several occasions.” Testimony offered at the trial afforded no substantive basis for this flat assertion.

So the ruling begins dishonestly and never deviates. The crux of Shaw’s argument was that the belief in repressed memory, by whatever name, is just that, an idea unsubstantiated by scientific research, an unproven hypothesis, and therefore inadmissible in court. He argued that Shanley had ineffective counsel because his trial lawyer, Frank Mondano, had not rigorously challenged the basis of the prosecution’s case, had presented the trial judge with no countervailing data or expert opinion on which to assess the testimony of the prosecution’s expert witnesses and make a reasoned judgment as to the admissibility of Busa’s “memories”.

Shaw was not asking the court to divine Busa's veracity or even to determine that the hypothesis of repressed memory is, finally, true or false. That, he asserted, is the function of scientific research. But, as amply demonstrated in voluminous material he presented to the court, the research now available shows that there is nothing beyond faith to support the hypothesis of massive repression.

Almost fifty years of research on memory and trauma, involving 120 studies and more than 14,000 people with documented experiences of rape, sexual abuse, torture, death camps, war or other horrors, reveals no evidence of repressed memory—that is, an inability to remember that cannot be explained by ordinary forgetting, infantile amnesia, intoxication or brain injury. People may forget certain details of Nazi cruelty, but they don’t forget they were in Auschwitz, and don’t exist for years in a la-la land of neutral thoughts about the place until one day a tidal wave of memory hits them. They may not remember every child they killed, every village they destroyed or every gaping wound of a buddy bleeding out, but they don’t forget they were in a hell called Vietnam or Iraq or Afghanistan. They may not remember every unwanted touch or traumatic visitation by Uncle Harry, but there is not a shred of support for the idea that somehow repeated sexual trauma is different from torture, war, death camps such that it completely alters the process by which the mind creates and stores memory; that only sex can be so damaging as to reverse the process by which humans learn and have learned for millennia. The only circumstances under which childhood sexual abuse past the age of 4 has been demonstrably forgotten and re-remembered, according to Richard McNally, a research psychologist at Harvard who has conducted numerous experiments on the relationship between memory and trauma, is if the abuse was not first experienced as traumatic. That cannot apply to Busa, who claimed rape.

As dozens of pre-eminent social science researchers stated in an amicus brief, “Decades of research and scientific debate have clarified over and over again that the notion of traumatic events being somehow ‘repressed’ and later accurately recovered is one of the most pernicious bits of folklore ever to infect psychology and psychiatry.”

It was on that basis that Shaw challenged Shanley’s conviction, and since no Massachusetts court had ever fully considered the scientific, evidentiary basis for repressed memory, he and Shanley and his family had every reason to hope that when the Supreme Judicial Court agreed to hear the appeal last year, it did so with a serious intent to review the research and join numerous other courts in the land of rationality.

Contrary to what the court ultimately ruled, repressed memory is not “generally accepted in the relevant scientific community”. Nor is it generally accepted by courts, though it once was. From 1992-94, 354 lawsuits based on repressed memory were filed in US civil and criminal courts. From 2000-04, there were twenty. One of the reasons for the drop off was a 1993 Supreme Court decision, in Daubert v. Merrel Dow Pharmaceuticals, which held that scientific expert testimony must be both relevant and reliable to be admissible. A second decision, in 1999, extended the ruling to all expert testimony in federal courts. Since the mid-90s, many states have adopted similar standards, and judges have been dismissing cases or overturning convictions based on repressed memories, often after pretrial hearings featuring legal-scientific teams. R. Christopher Barden, a lawyer, psychiatrist and major proponent of the science-intensive approach, successfully led a team of five full-time defense lawyers and seven national experts in a monthlong landmark Daubert hearing in Rhode Island in 1999. He has litigated many such hearings in many jurisdictions across the country and has won them all, driving a stake through prosecutors’ use of this junk science to ruin people’s lives.

But faith and politics are powerful things, particularly in a place like Massachusetts, where the ground was laid by self-described feminists and therapists back in the 1970s for airy but wildly destructive notions that unremembered childhood sexual abuse, sometimes involving Satanic ritual, was epidemic, that numerous adult psychological problems or anxieties or even characteristics like lack of self-confidence could be attributed to it, that the magic bag of therapy could coax the memories into the light and thus bring “healing”, often in tandem with someone going to jail. Add that to the hysteria around the priest scandal and in particular around Shanley, whom the entire power structure and its servants had convicted before court action even commenced, and it required a stiff-spined panel of judges to bring sense to the situation.

The Supreme Judicial Court turned out to be spineless, a prisoner of media interest and public sentiment, however irrational. Middlesex County prosecutors had relied on two therapists prominent in the warped little world of Boston’s repressed memory promoters. Dr. Daniel Brown and Dr. James Chu. Brown had appeared as a certified expert in courtrooms for years, stating that the mind’s capacity for “massive repression” was generally accepted as demonstrable fact in the psychological professions. That was always false, and by 2004 many of the therapists whose work Brown recommended had been disgraced, stripped of their licenses and revealed as dangerous frauds in successful malpractice suits. Brown's own testimony had been rejected as unreliable by courts in New Hampshire and Rhode Island. In 2007 an Indiana court rejected his testimony as misleading, and a federal judge threw out a $1.75 million verdict in a case that hinged on Brown’s expertise.

Brown’s confederate, Chu, had connections to the International Society for the Study of Dissociation, an organization peppered with believers in Satanic conspiracies, over which he once presided and whose journal he was editing at the time of Shanley’s trial. Formerly known as the International Society for the Study of Multiple Personality and Dissociation, it was co-founded by Bennet Braun, one of Chu’s mentors. Braun ran the country’s first dissociative disorder clinical unit and promoted belief in Satanic ritual abuse, also in a cult involving, among others, the Klan, the US military, the Mafia and FTD Florists. His career ended with a $10.6 million settlement of a lawsuit brought by a patient who had come to believe in therapy that she was a Satanic priestess.

In his appeal to the high court Shaw did not fault Judge Neel for his pretrial ruling on the admissibility of repressed memory. In that hearing Shanley’s trial lawyer offered nothing that would have enlightened the judge, not a single witness or study to rebut the prosecution’s so-called expert witness. He merely huffed and puffed cross-examining Brown, and himself called up Chu—just to clarify a few matters. The high court decided that extended cross-examination, however ignorant, was enough to provide Neel with the full scope of the debate on the reliability and general scientific acceptance of repressed memory.

Truth be told, Neel had punted the memory question to the jury. The jury had punted it back, relying on the wisdom of judge, prosecution and its trial expert, Chu. The high court merely punted again, saying there’s no reason to believe that a fuller presentation of the research and opinion of the scientific community would have changed anyone’s mind. Perhaps that is an accurate reading of Massachusetts temperament. The long knives were drawn for Shanley by everyone, including the shameful remnant of the gay movement, immune to fact or reason.

But the high court’s job is not to hew to popular prejudice. Its members can’t simply say, “Look, no one wanted to free the faggot, and neither do we.” So it made a charade of ruling, mischaracterizing the appellate argument for its own ends.

It discussed the issue of repressed memory almost entirely with reference to the evidence at the pretrial hearing, as if the judge’s action there were the focus of the appeal. It stated that Shaw challenged repressed memory on grounds that there is no peer-reviewed literature and that scientific study is not possible. Those “arguments” appear nowhere in his submissions. In fact, the material before the court emphasized methodologically sound prospective studies that contradict the notion of repressed memory, and in an affidavit Dr. Harrison Pope, an internationally recognized psychiatrist, scholar and expert on research methodology, spelled out a valid method for testing agreed upon by the scientific community.

The court accepted at face value Daniel Brown’s claims for the eighty-five studies he brandished to support his opinions. It accepted patient self-diagnosis and therapists’ reports, upon which Chu had relied, as scientific evidence of how the brain works. It did not trouble itself to grapple with Pope’s affidavit, which analyzed in scrupulous detail the body of studies upon which Brown had relied: the flawed research (without controls or error rates, with faulty methodology, with subjects who report abuse in infancy and therefore would not remember because of normal infantile amnesia, with subjects who suffered brain injury along with trauma, etc.), or flawed conclusions from studies. It ignored the record of chicanery piled up by the authors of some of those studies, as spelled out in Chris Barden’s scathing affidavit, as well as the recent history of other court rulings rejecting Brown’s testimony.

In fact, the court offered no analysis whatsoever of the impressive documentary material that Shaw provided, none of which had been available to the trial court. “In sum”, it ruled, “the judge's [Neel’s] finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record” that had been placed before him.

Who are we to “second guess the judge or reach a different conclusion”, the justices postured in a footnote right near the end, and then, as if aware of their titanic bad faith, added in that same footnote:

The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction.


As Robert Shaw told me later,

"Whether one calls it a question of 'sufficiency of the evidence' or a question of validity and reliability, as we argued, where repressed memory is at issue we are dealing with the same question, directed at the very nature of the evidence.

"If the Court harbors a concern that repressed memory evidence might not in itself be 'sufficient as a matter of law' to sustain a conviction, then we believe that Paul Shanley deserves the benefit of a ruling addressing that concern.

"If the Court were to conclude that repressed memory evidence is not 'sufficient as a matter of law,' then Paul Shanley is entitled to understand how the evidence is nonetheless valid and reliable enough to be admitted in his case. Moreover, sexual abuse cases are regularly tried in the Commonwealth where the only evidence is the testimony of the accuser concerning the accuser’s memories of the alleged crimes.

"That is precisely why the relevant question was not framed as one of 'legal sufficiency' in the classic sense, but whether repressed memory evidence is valid, reliable and admissible. If it is valid, reliable and admissible, then the question of legal sufficiency is resolved.

"If it is not valid, reliable or admissible, or, as implied in footnote 26, is not sufficient in itself to support a conviction, then the judgments in this case cannot stand."

Back in 2002 virtually the entire media swallowed the story of Shanley’s monstrosity as presented by personal injury lawyer MacLeish. They then regurgitated it back to a gullible and easily lead public. Political ideology offered no buffer from this dangerous nonsense, as so-called leftists abandoned any interest in justice or reason, blinkered simply by disdain for religion and the Catholic Church. Homophobes and the homosexual establishment were as one against Shanley, repeating MacLeish’s lie that he was a founder of NAMBLA, that he had a long history of documented sexual abuse, that he had been moved from parish to parish because of this, that because he’d had sex with young men he must be a child rapist. The Boston Globe, a disgraceful paper that, like Martha Coakley, deserves every blow it has recently suffered and would best disappear from the scene, didn’t care that its reporters either never reviewed the entire documentary record about Shanley or willfully misrepresented it.

In late 2004, shortly before his trial the next year, Coakley’s office offered Shanley a deal: plead guilty to one minor charge and receive sentence of time served, plus two and a half years’ house arrest. Shanley declined. “I’m 74 years old”, he told me from prison after he was convicted; “why would I take a deal?” But “can you imagine”, he added, “here I am, the worst monster, a danger to children everywhere, and they offer me time served? Seven months [the time he’d spent in jail awaiting bail]. But for refusing to lie, I got twelve to fifteen years.”

Still, Shanley hoped that if only people had the information… Now the Supreme Judicial Court joins the rest of the Massachusetts rogues’ gallery, demonstrating again that, in a match-up against prejudice, the truth will not necessarily set you free.

JoAnn Wypijewski has been reporting on the Shanley case since 2002, writing about it for Legal Affairs as well as The Nation and CounterPunch. She can be reached at jwyp@earthlink.net.

Judge will allow testimony about accuser’s ‘repressed memories’

A Marion County judge will let jurors hear testimony about the “repressed memories” of a man whose allegation of sexual abuse by a Catholic priest is based on memories so painful that experts say he lost access to them for decades.

The decision by Superior Court Judge David Dreyer could break new ground in Indiana. Henry Karlson, an Indiana University law scholar, said he’s not aware of a case in Indiana in which a jury has been allowed to hear evidence about repressed memories.

The case involves a man identified in court papers as John Doe RG. Now a 44-year-old business executive, he contends that, as a boy, he was repeatedly molested by former Indianapolis priest Harry Monroe while he was a parishioner at St. Andrew Catholic Church.

In 2005, the man filed a lawsuit against the Archdiocese of Indianapolis involving Monroe. Twelve other accusers followed with their own lawsuits, each arguing that the church kept Monroe’s history of abuse hidden even as it moved him to new parishes and new victims.

So far the archdiocese has failed in its attempts to get the first three of the 13 cases tossed out. Dreyer ordered Wednesday that the repressed-memory case and a case involving a former altar boy at St. Catherine must go forward. Another judge ruled in 2007 that a third case should go forward. The trials should begin later this year.

None is likely to be as hotly contested as the repressed-memory case. Both sides have lined up Harvard University experts and others to testify about the validity of repressed memories.

Dreyer, who heard attorneys argue the matter in August, said expert testimony on repressed memory was reliable enough to let a jury decide how much weight to give it.

Attorney Pat Noaker, who represents all 13 plaintiffs and argued for the repressed-memory testimony, said the decision is in line with other cases across the country.

“The judge’s decision may be the first of its kind in Indiana,” he said. “However, it is consistent with what the majority of states have allowed. And that is to let repressed memory go to a jury.”

Attorney Jay Mercer, who represents the archdiocese, hasn’t decided whether he will appeal Dreyer’s decision. But he said the order doesn’t mean the issue is settled.

“I still think there is an issue at trial as to whether (repression experts) will be allowed to testify or as to the reliability of their theories,” Mercer said.

Monroe acknowledged in pre-trial testimony that he abused at least five of the men who have brought lawsuits. He said he couldn’t remember whether he had abused the others. His tenure as a priest from 1974 to 1984 included time at parishes in Indianapolis, Terre Haute and Perry County, along the Ohio River.

Abuse allegations arose from each stay. In some cases, the accusers have said their families went to church officials and were assured Monroe would be removed from the priesthood. Others kept their abuse hidden until lawsuits began to reveal that there were more boys in Monroe’s past.

Monroe was removed from the priesthood in 1984. But he was never prosecuted because law enforcement officials said the criminal statute of limitations had expired.

John Doe RG told The Indianapolis Star in 2006 that he was 10 years old when Monroe began abusing him at the church rectory and on camping trips, often giving him alcohol. He said the priest told him he wouldn’t get to serve at Mass if he revealed their secret. And he kept quiet.

As he grew older, he found that his relationships never lasted. He had difficulty trusting authority figures. He had certain sexual hang-ups and became a functioning alcoholic. In 2003, when he finally sought psychological counseling, he said, the memories of his hidden abuse began to unfold.

An initial “image flash” of one of the instances of abuse was followed by more detailed memories and eventually his lawsuit against the archdiocese, which was filed just days before the statute of limitations for lawsuits was set to expire.

In his ruling, Dreyer said the man experienced a “tumultuous journey” after his “image flash.” It included increasing confusion, depression and avoidance of the new realization.

Karlson said repressed-memory testimony has been used in hearings before judges who are trying to rule on statutes of limitations issues. This order, sending the issue to a jury, is different.

“Ultimately,” Karlson said, “this is going to force the court of appeals and the Indiana Supreme Court to make a determination on the use of repressed memory in cases of this nature.”

Child Pornography, and an Issue of Restitution

February 3, 2010
Child Pornography, and an Issue of Restitution
By JOHN SCHWARTZ

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.

She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met.

Some experts argue that forcing payment from people who do not produce such images but only possess them goes too far.

In February, when the first judge arranged payment to Amy in a case in Connecticut, Jonathan Turley, a law professor at George Washington University, called the decision “highly questionable” on his blog and said it “stretches personal accountability to the breaking point.”

The judge in the case acknowledged, “We’re dealing with a frontier here.”

The issue is part of a larger debate over fairness in sentencing sex offenders. For years, lawmakers (and some voters) have reasoned that virtually no punishment was too severe for such criminals; even statutory limits on sentencing were often exceeded.

Now some courts have begun to push back, saying these heavy sentences are improper, and a new emphasis has arisen on making sex offenders pay monetary damages for their crimes. If such damages become widespread, experts say, it may make it easier to reach a consensus on measured sentencing.

Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing, said the rise in monetary damages might curb “a troublesome modern tendency of many legislators and judges to respond to all perceived crime problems with longer and longer terms of imprisonment.”

Those longer terms and conditions are already under fire.

On Thursday, the California Supreme Court ruled 5 to 2 that a state ballot initiative allowing the indefinite extension of sentences for sexually violent predators might violate constitutional guarantees of equal protection; the court ordered a new hearing to explore the issues.

On Monday, the court also asked for more study on a law that prohibits sexual predators from living within 2,000 feet of a school or park after their release from prison. The law, called Jessica’s law, was approved by voters in 2006.

Corey Rayburn Yung, an expert in sex crimes at the John Marshall Law School in Chicago, said that while “it’s hard to be too sympathetic” toward those who possess images of child pornography, “there is such a thing as going too far.” The harm to child pornography victims from those who possess the images, he said, is less direct than that caused by those who abused the children.

The most novel approach is being taken by Amy’s lawyer, James R. Marsh, whose practice focuses on child exploitation cases. Mr. Marsh’s arguments are the fruits of a national movement granting greater rights to crime victims and shifting the financial burden of crimes to criminals, said Paul G. Cassell, a former federal judge and professor of law at the University of Utah, who advised Mr. Marsh and wrote a brief supporting his position in a Texas case.

Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.

Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution. He had Amy write a victim-impact statement and hired a psychologist to evaluate her. Economists developed a tally of damages that included counseling, diminished wages and lawyer fees. The total came to $3,367,854.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability. According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions. But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.

Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000. Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases. “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.

Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have. Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.

Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more. Many judges who have considered the issues award a few thousand dollars. Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy.

“This is a lawyer’s dream,” he said.

The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim known as Vicky has begun making similar claims in court, and still more victims could come forward. Professor Berman suggested Congress would have to sort out the issue, perhaps with a victim compensation fund.

A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.” But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.”

Sex Offenders Struggle To Comply With Impossible Laws

FRESNO, Calif. (KFSN) -- Just before Christmas the City of Fresno installed floodlights to show off the historic water tower in downtown. But now the tower has become a beacon for homeless sex offenders on parole. They say it's one of the only places they can go to stay on the right side of the law.

The electrical outlets at the base of the tower are the attraction. These parolees are required to wear electronic monitoring devices on their ankles. The devices hold a charge for about 12 hours and must be charged for an hour in the morning and an hour at night. The trouble is dozens of these men live in a homeless tent encampment beneath a freeway overpass at the edge of downtown. They do not have access to electricity.

They were using an outlet at the state parole office, but their access was cut off two weeks ago. Their move to the water tower has not been embraced by the city. The old water tower also serves as a visitor's center for downtown. Police Chief Jerry Dyers said it's not an appropriate place for sex offenders to gather. "This is not the message we want to send. When people come to the water tower which is a visitor's center, that is not the image we want to portray," said Dyer.

Dyer said he is working with the state parole office to find another plug-in location, but indicated it might take awhile. In the meantime the city manager's office may turn off the power to the outlets at the tower.

One homeless sex offender who didn't want to be identified said, "Once you cut that off where are we going to go? We're going to go somewhere else, and they're going to that off. Then we'll go somewhere else and they will cut that off."

Without a source of electricity to charge their monitors the men will be breaking the law. Once the monitors are dead the men will be un-trackable to the law enforcement agencies that are supposed to be keeping track of them.

Brian Semsen, a Baptist minister who works with the offenders said the men in the camp are trying to comply with the law, but are being treated unfairly. "These folks out here on the street are the Lepers of our day. In Jesus' time Leper's were considered unclean. There were laws requiring them to segregate. They had to shout "unclean, unclean" when they approached others so they could warn them to stay away. Now these folks, these men are the Lepers of our day." Semsen said.

The sex offenders know they are unwanted, but said if they don't find access to electricity nearby, they will have to use outlets at businesses on the Fulton Mall, a popular public shopping area.

A Reminder of what "Sexually Violent Predator" Really Means

I would like to point out that the term "Sexually Violent Predator" rarely means what folks could reasonably expect it to mean.

"Sexually Violent Predator" does not require actual "violence". In every state using the term it means having ANY kind of sex with someone under the age of 14 or 13 (depends on the State).

The mere act of having sex with someone under that age is, in the State's definition, "sexual violence". No actual violence need be employed.

Thus, it serves to drum up lots of hysterical reaction from the public. Politicians love the term because it allows them to set the public's agenda and to offer themselves up as tough-on-crime problem-solvers. Local T.V. news reporters love it because everyone wants to stay tuned to learn the details (which are never revealed). This is the dirty little secret none of you are being told. The problem is, most of you don't want to know it, either. It's more fun to create monsters and chase them around than it is to pay attention to the very real problems our children encounter in their daily lives.

Constitutionality of 'Jessica's Law' questioned

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as "Jessica's Law."

Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders.

Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions.

Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit.

The majority said the state must provide "some justification" for creating greater obstacles for sex predators to win their freedom than for severely mentally disordered offenders who commit crimes but serve their terms in mental institutions.

Sexual predators must be shown to "bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society," Moreno wrote.

The majority said the state can provide its justifications in a hearing before a trial judge.

Justice Ming W. Chin, joined by Justice Marvin R. Baxter, dissented.

"Whether sexually violent predators present a distinct danger warranting unique remedies is for society to determine, not a trial judge," Chin wrote.

Ruining Kids in Order to Save Them

The boneheaded logic behind treating "sexting" teens as child pornographers.

Radley Balko | Reason Magazine

That the 3rd U.S. Circuit Court of Appeals would even need to hear oral arguments in the case of Miller, et al. v. Skumanick last week is a pretty good indication that law enforcement officials in Wyoming County, Pennsylvania have lost their collective minds.

At issue in the case: Whether the U.S. Constitution permits prosecutors to charge minors who pose for nude or risque photos with child pornography. You read that correctly. In order to protect children from predators and child pornographers, the local district attorney is threatening to prosecute minors who pose for racy photos as if they were child pornographers.

Even within the context of the already hysterical overreaction to the "sexting" phenomenon, the facts in Miller are jaw-dropping. Of the three girls bringing suit, two were photographed at a slumber party wearing training bras. The third photographed herself baring her breasts, then sent the photo to a boy she'd hoped to make jealous. The girls aren't in trouble for distributing the photos, or even for taking them. They've been introduced to the criminal justice system merely for appearing in them.

Wyoming County District Attorney George Skumanick, Jr. gave the girls a choice. The first option was to face felony child pornography charges, punishable by up to 10 years in prison. The second was to attend a series of Skumanick-chosen classes, which according to the Pennsylvania ACLU included topics such as "what it means to be a girl in today's society" and "non-traditional societal and job roles." The girls would also be put on probation, subject to random drug tests, and would have to write essays explaining why appearing in photos while wearing their bras is wrong.

Skumanick would later tell a gathering of students and parents that he had the authority to prosecute girls photographed on the beach in bikinis, because the minors would be dressed "provocatively." He told the Wall Street Journal that by offering the girls the classes and probation instead of immediately hitting them with felony charges, "We thought we were being progressive."

Of the 19 minors Skumanick targeted, 16 chose the classes. The other three took Skumanick to court, where they won a restraining order. Skumanick appealed. To the credit of the people of Wyoming County, after 20 years in office Skumanick lost his bid for reelection last November. But his office continues to fight.

But this isn't just an isolated case of a renegade D.A. There have now been several cases across the country where young people who either pose for, snap, or forward provocative or nude photos of other minors are being charged or threatened with felony child pornography. In 2007, a state appeals court in Florida upheld charges of "directing or promoting a photograph featuring the sexual conduct of a child" and possession of child pornography charges against a 17-year-old boy and a 16-year-old girl for forwarding explicit photos of themselves having sex from her computer to his email address. The sex wasn't illegal. But the photos were. Incredibly, Judge James Wolf wrote in the majority opinion that "Mere production of these videos or pictures may...result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives."

The message to minors: These photos can ruin your lives, kids. And just to prove it, we're going to ruin your lives.

These cases are the natural culmination of two trends. The first is the continuing view among politicians that there's no punishment too severe for sex offenders. Moreover, to show how serious we are about sex offenders, we should broaden the class of people we classify under the label. And there needn't be any actual victims.

In 2006, Karen Fletcher, also of Pennsylvania, was convicted in federal court for writing fictional stories (and granted, they were disturbing stories) about sexual and violent crimes against children. Until it was struck down by the Supreme Court in 2002, the 1996 Child Online Protection Act criminalized images of adults made to look like minors, as well as digitally manufactured photos of minors who don't actually exist.

The second trend is the "for the children" excuse that no law ought to be questioned if its intent is to protect young people. The resulting paternalism is built in.

Put these together, and you get the intellectually vacant policy of prosecuting children for sexually exploiting themselves...in order to protect them from the people who might exploit them.

It isn't exactly clear from what or whom the authorities are protecting these teens. To my knowledge, there hasn't been a single case of a predator who tracked down, then raped, killed, or otherwise physically harmed a minor after viewing explicit photos of the child on the Internet or via images forwarded by cell phone. Perhaps it has happened. But given the media obsession with these stories, if it's happened with any frequency at all, we would have probably heard about it by now.

The harm here seems to be the possibility that somewhere, someone other than the intended recipient of these photos may be masturbating to them. That's an uncomfortable thought, sure. But it's difficult to see how that presents tangible harm to the minors in the photos, certainly not to the point where the minors themselves ought to be prosecuted. Anyone turned on by the photos in Skumanick's case could just as easily placate themselves with an old Sears catalogue—and with no resulting damage to the models who posed in it.

But the idea that an otherwise innocuous image can mutate into illegal child porn based on how it might be used by pedophiles is gaining currency. In 2006, Alabama photographer Jeff Pierson was indicted on federal child porn charges for a website he ran featuring aspiring teen models. None of the models were nude, nor were any depicted engaged in any sexual activity. All of the models' parents signed off on the photos. But federal prosecutors argued the models struck "illegally provocative," "lascivious," and "coy" poses that could entice pedophiles. In 2002, Republican Rep. Mark Foley of Florida (yes, that Mark Foley) introduced the Child Modeling Exploitation Prevention Act, which would have prohibited the sale of any photo of a minor. It failed, but crazy as Foley's bill sounds, it at least would have cleared up the ambiguity. As the website CNET reported in a story about Pierson, federal courts have made the definition of child porn so subjective, "judges and juries [are] faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions."

When applied to "sexting" cases, that also leaves prosecutors like Skumanick far too much leeway—enough, for example, for him to believe he can prosecute a girl photographed in a bikini because he finds the photo uncomfortably "provocative." But even when "sexted" photos are unquestionably explicit, there's no justification for criminal charges. Even the deterrent argument falls flat. Despite these high-profile cases, threats of prosecution, and public service announcements on MTV, surveys suggest that about 20-25 percent of young people college-aged and younger have taken or sent sent explicit photos of themselves. That number is rising, not falling.

The root disconnect, here, is that the law treats pre-pubescent sex crimes on par with crimes related to teenagers who are sexually mature. Fact is, teenagers become sexually mature years before it's socially or legally permissible to think about them that way. That they're then having sex is nothing new. Nor is the fact that teens make rash, emotional, spur-of-the-moment decisions. What's new is that they're able to document it all in ways that can quickly escape their control. What they need after the fact are responsible adults who can walk them through a poor decision, appropriately reprimand or punish them if necessary, but all while keeping things in perspective, and minimizing the long-term consequences for the teen. Dumping the kid into the criminal justice system has all the subtlety and precision of dropping an anvil on the problem from 40 stories above.

Radley Balko is a senior editor at Reason magazine.

"Don't Talk to the Police" by Professor James Duane

Police said Valparaiso boy, girl sent nude pictures to each other

Ed: We are smack-dab in the middle of a full-blown Hysteria! To say that we have allowed ourselves to be governed by the most narrow-minded of Puritans is, incredibly, to do injustice to the historical Puritans who, arguably, were never as puritanical as Americans now most clearly are. Where is the outrage at the incursion of government into every aspect of our, and our children's, lives? And why the hell aren't we putting up more of a fight to defend our freedom? Have we really become that docile and ignorant? If there is a role for "shaming" in our society, it should be employed as a tool against these intolerant, bullying assholes who have nothing but contempt for the liberties our country was founded upon! We MUST secure our rights once again!

Middle school students charged in 'sexting' case

By Ken Kosky - ken.kosky@nwi.com, (219) 548-4354 | Posted: Thursday, January 28, 2010 12:05 am

VALPARAISO | Two Ben Franklin Middle School students who Valparaiso police said were caught using their cell phones to exchange nude pictures of each other -- a practice called sexual texting or "sexting" -- are facing criminal charges.

A 13-year-old Valparaiso girl and a 12-year-old Valparaiso boy were referred to juvenile probation on charges of possession of child pornography and child exploitation. In adult court, the charges would carry a maximum penalty of 11 years in prison, but prosecutors expect the case to be handled in the juvenile system.

"Something needs to be done, but we think dealing with them through the juvenile court system is appropriate, so as not to saddle them with (consequences) from the adult system," Porter County Prosecutor Brian Gensel said.

In the adult system, convicted offenders face not only prison time but also having to register as a sex offender.

The case against the Valparaiso students came to light when the girl's phone went off during class Jan. 21 and the teacher confiscated it. The teacher told police the girl asked to delete something from the phone before it was turned over to the administration, but that request was denied.

The teacher said the girl began crying, saying she would get in trouble because the boy had sent her a dirty picture.

An investigation revealed the boy sent the girl an explicit photo of himself Jan. 17 and asked her to use her cellular phone to send back a similar picture of herself, which she did, police said. Police further found out the girl showed the picture of the boy to one of her friends.

Deputy Prosecutor Cheryl Polarek said young people don't understand the ramifications of texting nude pictures or posting certain material on social networking sites like Facebook. She said a nude picture could end up being shared with half the school and could get in the hands of people who seek out child pornography.

Even though it is illegal to send or possess nude pictures of someone younger than 18, a national survey found 20 percent of teens have texted or posted online nude or semi-nude pictures of themselves.

Gensel, who belongs to the National District Attorneys Association, said the association's trade publication featured a column on sexting that highlighted Montgomery County, Ohio, Prosecutor Mathias Heck Jr.'s implementation of a "diversion program" for sexting cases.

Young people who enter the diversion program undergo education on appropriate sexual boundaries and related topics, complete community service and relinquish their cell phone for a period of time. If the program is successfully completed, the charges are dismissed or never filed.

Gensel agrees with Heck that there needs to be some "tempering" of prosecution so some foolish, consenting behavior doesn't have long-term ramifications on young people's lives. Gensel favors a system in which young people receive an explanation about how serious of a matter sexual texting is, and that there will be serious consequences if they continue doing it.

Valparaiso police Sgt. Michael Grennes said this case shows the need for parents to educate their children about what they can and can't do with their cellular phones or on their computers. He also recommends parents to follow through by monitoring their children's phone and computer use. He also said parents might want to consider whether their child really needs to own a phone.

Paul Shanley Case and Repressed Memory

The Paul Shanley Case and Repressed Memory Recovery: Not Such Thin Partitions
By Jean Mercer, Ph.D.
Created Jan 17 2010 - 10:39am

A few days ago, the Boston Globe reported that the Massachusetts Supreme Judicial Court has upheld the conviction of Paul Shanley, a former priest accused of sexual abuse occurring about twenty years ago. The appeal of Shanley's conviction was based on objections to the lower court's acceptance of testimony based on recovered memories of the event, which were said to have been repressed by the victim. In upholding the conviction, the higher court said: "... the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature". This was in spite of the submission of comments rejecting the idea of repressed memories by experts such as Richard McNally. However, the opinion went on to say, the Supreme Judicial Court may decide in the future to throw out a conviction where the only evidence is recovered memories.

Repugnant as is the idea of sexual abuse of children, especially by figures of authority, it is also repugnant to think that misinformation may have trumped good evidence in this and similar cases. It is always a problem to translate scientific standards of evidence into legal standards, because legal standards are based on concepts like "what a reasonable man would think" or on the preponderance of evidence, and scientific standards have traditionally been based on probabilities. Recently scientific standards, especially in medical and psychological areas, have also considered the quality or level of evidence supporting a claim. This perspective seems to be difficult for courts to handle.

The higher court's statement about "the lack of scientific testing" misses several points about the evaluation of scientific evidence. One important point is that it is not possible to prove that something (such as repressed memory recovery) does not exist or did not exist in the past. There are two ways to provide evidence about non-existence. One is to amass evidence that some situation, mutually exclusive with the point in dispute, does or did exist-- for example, if I say a person attacked me, evidence that he or she was on another continent at the time shows that what I claim could not have happened. Another approach, one that is becoming more important as people focus on quality or levels of evidence, is to show that evidence supporting the existence of a phenomenon (for instance, repressed memory recovery) is not of good quality. In the case of repressed memory recovery and other issues, critiques of research methods and reporting can invalidate the evidence claiming that something exists. Critiques of the research evidence supporting repressed memory recovery, by Richard McNally, Susan Clancy, and others, have effectively shown that such evidence is of poor quality.

When deciding whether evidence is good or poor, experts often begin by examining whether an idea is plausible. Is it possible that events could come about as claimed? How does the suggested function agree with known, well-supported information about other functions? Although there can certainly be real "breakthroughs" in which a discovery shows that what we thought we knew was wrong, the simplest conclusion about an implausible idea is that it is mistaken.

The idea of recovered repressed memories is in fact implausible. It is at odds with everything known about human memory. It contradicts the fact that vivid experiences (as sexual abuse would presumably be) create lasting memories, as well as the fact that memories change and are reconstructed over time, even those that are easily accessible and frequently recalled. It also contradicts the fact that thoughts that we experience as remembered may come from sources other than memories of actual experiences of our own.

I would suggest that the idea of recoverable repressed memories is based, not on modern understanding of memory, but on a belief about memory accepted by Sigmund Freud but dating to a period much earlier than his. This view of memory was put forth initially by the 18th-century philosopher John Locke, and was later elaborated by the British Associationist school of psychology. The basic concept at work here was described poetically by Alexander Pope in his lines:

Remembrance and reflection, how allied;/ What thin partitions sense from thought divide.

Pope and the Associationists assumed that thoughts and ideas were simply results of the impact of sense experiences on the mind. These results, like ripples of a stone thrown into a pond, could fade with time, but were completely determined by the event that caused them. If recalled, they came back into consciousness in exactly the same form in which they were originally created. People who had many thoughts and ideas were people who had had many experiences; those with few thoughts had been deprived of experience. Ideas could be connected with each other (forming a "complex") if sensations were often experienced together.

I don't mean to ascribe the idea of repression to the Associationist school, of course. That idea has different sources. My point here is that this early view held that memories were accurate reflections of experiences, and that although they might fade with time they remained accurate. The "thin partititions" had no capacity to alter memories so that they would not accurately resemble the original experience. This same belief is characteristic of ideas about recovered memory: that whenever a memory is accessed, or whenever a person experiences a thought as remembered, the experience is a direct parallel to the person's sensory experience in the past.

Our understanding of memory today stresses "thick partitions" that divide sensory experience and thoughts or memories. Processing of sensory information and later cognitive activity change thoughts and experienced memories. Memories that have not been accessed before do not suddenly emerge as accurate recordings of past experience. It is disappointing that courts have not yet come to terms with this fact.

Child Sexual Abuse: Problematic, Yes; Traumatic, Not Necessarily

By Jean Mercer, Ph.D.
Created Jan 26 2010 - 8:08am

Susan Clancy's important book "The Trauma Myth" (New York, Basic Books, 2009) is drawing the critical fire of a number of people who have not given it the careful reading it deserves. Some of these critics have claimed that Clancy argues against any deleterious effects of sexual molestation in childhood--- that she defends pedophiles, and even that she is a pedophile herself or that she blames child victims for the behavior of sexually-exploitative adults.

These statements are nonsense, and I am going to attempt to counter them by devoting today's post to a summary and comments on Clancy's argument in "The Trauma Myth".

"The Trauma Myth" emphasizes repeatedly the clear evidence that childhood experiences of sexual exploitation by adults are associated with a long list of later problems, including mood disorders, anxiety disorders, personality disorders, relationship and sexual problems, eating disorders, self-mutilation, and so on. Because one in five children is reported to have experienced sexual abuse (and probably there are more, unreported, cases), such abuse is responsible for significant numbers of mental health problems. It's important that we learn how to prevent it and to treat its results, not only for the sake of individuals but for the mental health of the whole population. To prevent child sexual abuse and treat problems that result from it, we need to have a real understanding of how these experiences cause bad outcomes. However, much work in this area is based on the assumption that trauma theory, which attributes many mental health problems to the past experience of severe pain and fear, and trauma theory may not provide a good framework for understanding the impact of sexual molestation in childhood.

Clancy is not the first to point out that children's sexual experiences with adults are not necessarily experienced as traumatic (severely painful or terrifying) at the time when they occur. But her interview research with adults who had been molested as children clearly showed a continuum of child experiences, ranging from terror and pain at one end, through puzzlement without distress in the middle, to physical and emotional gratification at the opposite end. In fact, most of her interviewees reported that in childhood, at the time of the event, they were not frightened or in pain. The abuser's actions did not involve force or even penetration of any kind, but were generally limited to rubbing, kissing,or fondling of genitals, nor did most of the abusers threaten the children in any way. Nevertheless, those adults, as well as the ones who had experienced trauma, reported symptoms related to their experiences, and now felt that the sexual event had had a deplorable effect on them.

The question Clancy raises is this: if the abused children did not at the time experience the event as traumatic, how can we explain the connection to their present symptoms? We can't do this in any simple way by means of applying trauma theory. To make trauma theory work in this context, we would have to add to it the concept of repressed memories-- to say, for example, that the adults Clancy interviewed were really terrified and hurt, that they have repressed and can't report that part of the experience, but that in its repressed form the memory still affects their mental health. Taking that approach, however, we would come up against an even more complicated issue: why is it that people who were actually hurt and terrified (according to independent evidence) don't repress what must be a hideous memory? Using the repressed memory concept, then, we find ourselves having to explain why a really terrible experience is remembered with all the emotional factors intact, but a less painful and frightening situation leads to repression of memories of emotion. Although U-shaped functions of this kind are not unknown in psychology, this one does not seem to make much sense.

Clancy concludes from this line of reasoning that trauma theory and the concept of repression are not good ways to explain the most common situations involving childhood sexual abuse and its aftermath in adulthood. Because they are not good ways, they have not done much to help us either prevent or treat the effects of child sexual abuse. We need to explore these matters much more carefully, and, Clancy says we need to make sure that our explanation involves the child's point of view, which has generally been ignored. To understand that children's group and individual characteristics affect the sex abuse situation is a far cry from "blaming" the child.

Clancy makes several points about children's understanding of the world and the ways it can make the child's view of non-painful sexual abuse rather different from an adult's. She stresses the ignorance of children about sexuality and their failure to comprehend what an adult wants or what he or she is doing. Why heavy breathing and a red face, for instance? A child has probably observed these things before, but in quite different contexts. The puzzled conclusion may simply be that this is strange and perhaps it's one of those embarrassing things that you get in trouble for talking about, so best to just keep it to yourself.

Importantly, Clancy also emphasize that there are characteristics of individual children that may make them more likely to be the victims of repeated abuse which they do not report. No, she does not say these children are "seductive"; what she does say is that they are lonely, unsupervised, and grateful for adult attention. They respond to the fascinated attentiveness of the potential abuser as a delightful experience, in sharp contrast with the indifference their caregivers may show. Without experiences of pain or fear, why should they reveal what seems to them like a romance to familiar adults who will probably cause some trouble?

Finally, Clancy says something that is for many readers the unspeakable: that given a kind, careful adult who treats them well, children may enjoy sexual experiences (we are not talking about penetration here, of course). I was reminded of a story I heard from a friend some years ago. She had left her 3-year-old boy with a 13-year-old boy babysitter, and when she came home she became aware that some sort of sex play must have been going on. All she could think of was to give the 3-year-old the old bromide, "if someone touches you and you don't like, just tell them to stop"--- to which the 3-year-old replied enthusiastically, "I liked it! When can he babysit me again?" And there you have it in a nutshell; sexual activity of the right kind is pleasurable for everybody at every age. Sexual predators know that very well, and if we want to stop their exploitation of children, we need to be honest about it too, and not to expect children to "tell on" someone who gives them pleasure.

"The Trauma Myth" is a serious effort to deal with child sexual abuse and its aftermath. I've had space here to give only the highlights of Clancy's argument, but the book contains much more of interest, including a discussion of abuse prevention programs as they now exist. I hope readers will give "The Trauma Myth" the careful attention it deserves.

Ed: One implication for her assertions is that we, as a society, may be causing actual harm to children through our own reactions to their sexual experiences. This is obviously the case.

Abusing Not Only Children, but Also Science

By ABIGAIL ZUGER, M.D.

Given the vested interests lurking all over the current medical landscape, it is no wonder that the scientific method is so often mauled a little in transit. Cases of data ignored or manipulated to serve an agenda are like muggings in a bad neighborhood: you hear about them all the time, but in fact relatively few are ever openly examined.

And so even readers with no personal or professional connection to the sexual abuse of children may be edified by “The Trauma Myth,” a short tale of one such particularly fraught episode.

For a graduate research project at Harvard in the mid-1990s, the psychologist Susan A. Clancy arranged to interview adult survivors of childhood sexual abuse, expecting to confirm the conventional wisdom that the more traumatic the abuse had been, the more troubled an adult the child had become.

Dr. Clancy figured she knew what she would find: “Everything I knew dictated that the abuse should be a horrible experience, that the child should be traumatized at the time it was happening — overwhelmed with fear, shock, horror.”

But many carefully documented interviews revealed nothing of the sort. Commonly, the abuse had been confusing for the child but not traumatic in the usual sense of the word. Only when the child grew old enough to understand exactly what had happened — sometimes many years later — did the fear, shock and horror begin. And only at that point did the experience become traumatic and begin its well-known destructive process.

Dr. Clancy questioned her findings, reconfirmed them and was convinced. Her audience, when she made the data public, was outraged.

First, her data flew in the face of several decades of politically correct trauma theory, feminist theory and sexual politics.

Second, Dr. Clancy found that the world had little appetite for scientific subtlety: “Unfortunately, when people heard ‘not traumatic when it happens,’ they translated my words to mean, ‘It doesn’t harm victims later on.’ Even worse, some assumed I was blaming victims for their abuse.”

Dr. Clancy reports that she became a pariah in lay and academic circles. She was “crucified” in the press as a “friend of pedophiles,” colleagues boycotted her talks, advisers suggested that continuing on her trajectory would rule out an academic career.

All that fuss about one little word — “trauma” — and a change in its timing. Why should it matter one way or the other?

Dr. Clancy suggests several reasons her data aroused such passion. For one thing, a whole academic and therapeutic structure rides on the old model of sexual abuse; her findings had the potential to undermine a host of expensive treatment and prevention projects.

Meanwhile, she argues, it is her model that may really help victims. Adult survivors of childhood abuse are commonly mortified by their own behavior as children. By not fighting back or calling for help, they blame themselves for effectively colluding with their abuser. It can be intensely comforting for them to hear that their reaction, or lack thereof, was completely normal.

Dr. Clancy’s model also makes some sense of the whole sticky question of repressed memory. Most traumatic events are likely to be vividly remembered. But if instances of sexual abuse are simply among the many confusions that characterize childhood, they are perfectly forgettable: “Why should a child remember them if, at the time they happened, they were not particularly traumatic?” Only when reprocessed and fully understood do the memories leap into focus.

Even without all these practicalities, the moral of Dr. Clancy’s story is clear: science should represent truth, not wishful thinking. When good data fly in the face of beloved theory, the theory has to go.

Dr. Clancy writes with the precision and patient repetition of a good teacher on complicated terrain. Her prose could not be clearer, and her points are restated many, many times over. But at Amazon.com, an outraged customer-reviewer has already pounced.

“It is appalling,” the reviewer wrote, “that ‘experts’ like Susan Clancy can get away with having a book published with a title that is not only false, but one that tells sexual perpetrators, ‘Go ahead, sexually abuse children, they like it, and they aren’t going to be traumatized by it.’ ”

Science is sometimes no match for conviction, and often, evidently, good writing is not either.

Martha Coakley's Convictions

By DOROTHY RABINOWITZ

The story of the Amiraults of Massachusetts, and of the prosecution that had turned the lives of this thriving American family to dust, was well known to the world by the year 2001. It was well known, especially, to District Attorney Martha Coakley, who had by then arrived to take a final, conspicuous, role in a case so notorious as to assure that the Amiraults' name would be known around the globe.

The Amiraults were a busy, confident trio, grateful in the way of people who have found success after a life of hardship. Violet had reared her son Gerald and daughter Cheryl with help from welfare, and then set out to educate herself. The result was the triumph of her life—the Fells Acres school—whose every detail Violet scrutinized relentlessly. Not for nothing was the pre-school deemed by far the best in the area, with a long waiting list for admission.

All of it would end in 1984, with accusations of sexual assault and an ever-growing list of parents signing their children on to the case. Newspaper and television reports blared a sensational story about a female school principal, in her 60s, who had daily terrorized and sexually assaulted the pupils in her care, using sharp objects as her weapon. So too had Violet's daughter Cheryl, a 28-year old teacher at the school.

But from the beginning, prosecutors cast Gerald as chief predator—his gender qualifying him, in their view, as the best choice for the role. It was that role, the man in the family, that would determine his sentence, his treatment, and, to the end, his prosecution-inspired image as a pervert too dangerous to go free.

The accusations against the Amiraults might well rank as the most astounding ever to be credited in an American courtroom, but for the fact that roughly the same charges were brought by eager prosecutors chasing a similar headline—making cases all across the country in the 1980s. Those which the Amiraults' prosecutors brought had nevertheless, unforgettable features: so much testimony, so madly preposterous, and so solemnly put forth by the state. The testimony had been extracted from children, cajoled and led by tireless interrogators.

Gerald, it was alleged, had plunged a wide-blade butcher knife into the rectum of a 4-year-old boy, which he then had trouble removing. When a teacher in the school saw him in action with the knife, she asked him what he was doing, and then told him not to do it again, a child said. On this testimony, Gerald was convicted of a rape which had, miraculously, left no mark or other injury. Violet had tied a boy to a tree in front of the school one bright afternoon, in full view of everyone, and had assaulted him anally with a stick, and then with "a magic wand." She would be convicted of these charges. Cheryl had cut the leg off a squirrel.

Other than such testimony, the prosecutors had no shred of physical or other proof that could remotely pass as evidence of abuse. But they did have the power of their challenge to jurors: Convict the Amiraults to make sure the battle against child abuse went forward. Convict, so as not to reject the children who had bravely come forward with charges.

Gerald was sent to prison for 30 to 40 years, his mother and sister sentenced to eight to 20 years. The prosecutors celebrated what they called, at the time "a model, multidisciplinary prosecution." Gerald's wife, Patricia, and their three children—the family unfailingly devoted to him—went on with their lives. They spoke to him nightly and cherished such hope as they could find, that he would be restored to them.

Hope arrived in 1995, when Judge Robert Barton ordered a new trial for the women. Violet, now 72, and Cheryl had been imprisoned eight years. This toughest of judges, appalled as he came to know the facts of the case, ordered the women released at once. Judge Barton—known as Black Bart for the long sentences he gave criminals—did not thereafter trouble to conceal his contempt for the prosecutors. They would, he warned, do all in their power to hold on to Gerald, a prediction to prove altogether accurate.

No less outraged, Superior Court Judge Isaac Borenstein presided over a widely publicized hearings into the case resulting in findings that all the children's testimony was tainted. He said that "Every trick in the book had been used to get the children to say what the investigators wanted." The Massachusetts Lawyers Weekly—which had never in its 27 year history taken an editorial position on a case—published a scathing one directed at the prosecutors "who seemed unwilling to admit they might have sent innocent people to jail for crimes that had never occurred."

It was clear, when Martha Coakley took over as the new Middlesex County district attorney in 1999, that public opinion was running sharply against the prosecutors in the case. Violet Amirault was now gone. Ill and penniless after her release, she had been hounded to the end by prosecutors who succeeded in getting the Supreme Judicial Court to void the women's reversals of conviction. She lay waiting all the last days of her life, suitcase packed, for the expected court order to send her back to prison. Violet would die of cancer before any order came in September 1997.

That left Cheryl alone, facing rearrest. In the face of the increasing furor surrounding the case, Ms. Coakley agreed to revise and revoke her sentence to time served—but certain things had to be clear, she told the press. Cheryl's case, and that of Gerald, she explained, had nothing to do with one another—a startling proposition given the horrific abuse charges, identical in nature, of which all three of the Amiraults had been convicted.

No matter: When women were involved in such cases, the district attorney explained, it was usually because of the presence of "a primary male offender." According to Ms. Coakley's scenario, it was Gerald who had dragged his mother and sister along. Every statement she made now about Gerald reflected the same view, and the determination that he never go free. No one better exemplified the mindset and will of the prosecutors who originally had brought this case.

Before agreeing to revise Cheryl's sentence to time served, Ms. Coakley asked the Amiraults' attorney, James Sultan, to pledge—in exchange—that he would stop representing Gerald and undertake no further legal action on his behalf. She had evidently concluded that with Sultan gone—Sultan, whose mastery of the case was complete—any further effort by Gerald to win freedom would be doomed. Mr. Sultan, of course, refused.

In 2000, the Massachusetts Governor's Board of Pardons and Paroles met to consider a commutation of Gerald's sentence. After nine months of investigation, the board, reputed to be the toughest in the country, voted 5-0, with one abstention, to commute his sentence. Still more newsworthy was an added statement, signed by a majority of the board, which pointed to the lack of evidence against the Amiraults, and the "extraordinary if not bizarre allegations" on which they had been convicted.

Editorials in every major and minor paper in the state applauded the Board's findings. District Attorney Coakley was not idle either, and quickly set about organizing the parents and children in the case, bringing them to meetings with Acting Gov. Jane Swift, to persuade her to reject the board's ruling. Ms. Coakley also worked the press, setting up a special interview so that the now adult accusers could tell reporters, once more, of the tortures they had suffered at the hands of the Amiraults, and of their panic at the prospect of Gerald going free.

On Feb. 20, 2002, six months after the Board of Pardons issued its findings, the governor denied Gerald's commutation.

Gerald Amirault spent nearly two years more in prison before being granted parole in 2004. He would be released, with conditions not quite approximating that of a free man. He was declared a level three sex offender—among the consequences of his refusal, like that of his mother and sister, to "take responsibility" by confessing his crimes. He is required to wear, at all times, an electronic tracking device; to report, in a notebook, each time he leaves the house and returns; to obey a curfew confining him to his home between 11:30 p.m. and 6 a.m. He may not travel at all through certain areas (presumably those where his alleged victims live). He can, under these circumstances, find no regular employment.

The Amirault family is nonetheless grateful that they are together again.

Attorney General Martha Coakley—who had proven so dedicated a representative of the system that had brought the Amirault family to ruin, and who had fought so relentlessly to preserve their case—has recently expressed her view of this episode. Questioned about the Amiraults in the course of her current race for the U.S. Senate, she told reporters of her firm belief that the evidence against the Amiraults was "formidable" and that she was entirely convinced "those children were abused at day care center by the three defendants."

What does this say about her candidacy? (Ms. Coakley declined to be interviewed.) If the current attorney general of Massachusetts actually believes, as no serious citizen does, the preposterous charges that caused the Amiraults to be thrown into prison—the butcher knife rape with no blood, the public tree-tying episode, the mutilated squirrel and the rest—that is powerful testimony to the mind and capacities of this aspirant to a Senate seat. It is little short of wonderful to hear now of Ms. Coakley's concern for the rights of terror suspects at Guantanamo—her urgent call for the protection of the right to the presumption of innocence.

If the sound of ghostly laughter is heard in Massachusetts these days as this campaign rolls on, with Martha Coakley self-portrayed as the guardian of justice and civil liberties, there is good reason.

Ms. Rabinowitz, a member of the Journal's editorial board, is the author of "No Crueler Tyrannies: Accusations, False Witness And Other Terrors Our Times" (Free Press, 2003).
Printed in The Wall Street Journal, page A19

America's unjust sex laws

The Economist

An ever harsher approach is doing more harm than good, but it is being copied around the world

IT IS an oft-told story, but it does not get any less horrific on repetition. Fifteen years ago, a paedophile enticed seven-year-old Megan Kanka into his home in New Jersey by offering to show her a puppy. He then raped her, killed her and dumped her body in a nearby park. The murderer, who had recently moved into the house across the street from his victim, had twice before been convicted of sexually assaulting a child. Yet Megan’s parents had no idea of this. Had they known he was a sex offender, they would have told their daughter to stay away from him.

In their grief, the parents started a petition, demanding that families should be told if a sexual predator moves nearby. Hundreds of thousands signed it. In no time at all, lawmakers in New Jersey granted their wish. And before long, “Megan’s laws” had spread to every American state.

America’s sex-offender laws are the strictest of any rich democracy. Convicted rapists and child-molesters are given long prison sentences. When released, they are put on sex-offender registries. In most states this means that their names, photographs and addresses are published online, so that fearful parents can check whether a child-molester lives nearby. Under the Adam Walsh Act of 2006, another law named after a murdered child, all states will soon be obliged to make their sex-offender registries public. Such rules are extremely popular. Most parents will support any law that promises to keep their children safe. Other countries are following America’s example, either importing Megan’s laws or increasing penalties: after two little girls were murdered by a school caretaker, Britain has imposed multiple conditions on who can visit schools.

Which makes it all the more important to ask whether America’s approach is the right one. In fact its sex-offender laws have grown self-defeatingly harsh (see article). They have been driven by a ratchet effect. Individual American politicians have great latitude to propose new laws. Stricter curbs on paedophiles win votes. And to sound severe, such curbs must be stronger than the laws in place, which in turn were proposed by politicians who wished to appear tough themselves. Few politicians dare to vote against such laws, because if they do, the attack ads practically write themselves.

A whole Wyoming of offenders

In all, 674,000 Americans are on sex-offender registries—more than the population of Vermont, North Dakota or Wyoming. The number keeps growing partly because in several states registration is for life and partly because registries are not confined to the sort of murderer who ensnared Megan Kanka. According to Human Rights Watch, at least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of “distributing child pornography” to include teens who text half-naked photos of themselves to their friends.

How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being “party to the crime of child molestation” because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender.

Several other countries have sex-offender registries, but these are typically held by the police and are hard to view. In America it takes only seconds to find out about a sex offender: some states have a “click to print” icon on their websites so that concerned citizens can put up posters with the offender’s mugshot on trees near his home. Small wonder most sex offenders report being harassed. A few have been murdered. Many are fired because someone at work has Googled them.

Registration is often just the start. Sometimes sex offenders are barred from living near places where children congregate. In Georgia no sex offender may live or work within 1,000 feet (300 metres) of a school, church, park, skating rink or swimming pool. In Miami an exclusion zone of 2,500 feet has helped create a camp of homeless offenders under a bridge.

Make the punishment fit the crime

There are three main arguments for reform. First, it is unfair to impose harsh penalties for small offences. Perhaps a third of American teenagers have sex before they are legally allowed to, and a staggering number have shared revealing photographs with each other. This is unwise, but hardly a reason for the law to ruin their lives. Second, America’s sex laws often punish not only the offender, but also his family. If a man who once slept with his 15-year-old girlfriend is barred for ever from taking his own children to a playground, those children suffer.

Third, harsh laws often do little to protect the innocent. The police complain that having so many petty sex offenders on registries makes it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries. Public registers drive serious offenders underground, which makes them harder to track and more likely to reoffend. And registers give parents a false sense of security: most sex offenders are never even reported, let alone convicted.

It would not be hard to redesign America’s sex laws. Instead of lumping all sex offenders together on the same list for life, states should assess each person individually and include only real threats. Instead of posting everything on the internet, names could be held by the police, who would share them only with those, such as a school, who need to know. Laws that bar sex offenders from living in so many places should be repealed, because there is no evidence that they protect anyone: a predator can always travel. The money that a repeal saves could help pay for monitoring compulsive molesters more intrusively—through ankle bracelets and the like.

In America it may take years to unpick this. However practical and just the case for reform, it must overcome political cowardice, the tabloid media and parents’ understandable fears. Other countries, though, have no excuse for committing the same error. Sensible sex laws are better than vengeful ones.

Innocent Man Freed, But Shabby Prosecutor Still Works as Judge

Reason Magazine
Bernard Baran served 22 years on dubious child molestation charges, yet the prosecutor who convicted him isn't even inconvenienced

Radley Balko | August 17, 2009

This June, District Attorney David Capeless of Berkshire County, Massachusetts announced that he was dropping all charges against 44-year-old Bernard Baran, a man who has spent half his life behind bars on child molestation charges that the state no longer has the confidence to retry.

Baran was convicted in January 1985 of molesting six children at a pre-Kindergarten daycare facility in Pittsfield, Massachusetts. He was released on bond in 2006 after an appeals court determined [PDF] that his trial attorney had been incompetent and that the prosecution may have withheld key exculpatory evidence. Baran says that during his jail term he was raped and beaten more than 30 times, necessitating six different transfers to new correctional institutions. Such is the cost the prison system exacts on an openly gay man convicted of molesting children.

Baran was one of the first people in the country to be prosecuted in the daycare sex abuse panic of the 1980s, a bizarre, nationwide hysteria fed by fears of satanism, homophobia, and a wing of child psychology that used unproven interrogation techniques critics say caused children to recount sexual incidents that never took place.

While Baran's case has been covered extensively in Massachusetts, and recently in the national media, one aspect of it still hasn't really been examined. Prosecutor Daniel Ford likely engaged in serious misconduct and open bigotry in winning his conviction of Baran. Yet in 25 years, Ford has never been investigated or disciplined for his role in the case. And since 1989, Ford has sat as a judge on the Massachusetts Superior Court. Ford's career trajectory and lack of accountability is the far too familiar product of the backward incentive structure that prosecutors work under. Convictions produce rewards, while abuse rarely comes with a penalty.

The most serious allegation against Ford in this case concerns an edited video interview with the children he presented to the grand jury that indicted Baran. According to court documents, the video shows several children alleging that Baran had sexually abused them. But edited out was footage in which some of the children denied any abuse by Baran, accused other members of the daycare faculty of abuse or of witnessing abuse, and, most importantly, depicted interrogators asking the same questions over and over—even after repeated denials—until a child gave them an affirmative answer. Some children were even given rewards for their answers.

Withholding the unedited video from the grand jury was itself an act of misconduct. And Ford may also have withheld it from Baran's trial attorney. We can only say "may" because there's never been a hearing, and Baran's trial attorney was far from competent. (Judge Ford did not respond to multiple requests for comment.) In granting Baran a new trial in 2006 [PDF], Massachusetts Superior Court Judge Francis Fecteau never moved beyond the inadequacy of Baran's lawyer. Harvey Silverglate, one of Baran's appellate attorneys (and also a Reason contributor), says Fecteau's passing over the misconduct claims was entirely appropriate. "For the purposes of judicial economy, judges only focus on what's necessary to make a ruling," he says. "Judge Fecteau is a hero, here. I don't fault him at all."

When the case reached the state appeals court, the justices there not only upheld Fecteau's ruling [PDF], they looked more closely at Ford's possible misconduct. "While the record does not settle the question whether the unedited videotapes were deliberately withheld by the prosecution," the ruling read, "there are indications in the trial transcript consistent with that contention."

The appellate court further noted that it took years for Baran's appellate lawyers to get prosecutors to turn over the unedited tapes. Baran's attorneys originally filed a motion for the tapes in 2000. For three years, then District Attorney Gerard Downing, who assisted in Baran's original trial, claimed to be unable to locate the tapes. When Downing died of a sudden heart attack in December 2003, David Capeless took over as D.A. When a court ordered Capeless to find the tapes, he was able to produce them within months. The appellate court opinion cited other examples of Ford failing to turn over exculpatory evidence, too, including evidence that two of the children who accused Baran may have suffered prior sexual abuse.

The case against Baran was also awash in homophobia. According to court documents, the first parents to come forward with accusations against Baran in September 1984 had just days earlier registered a complaint with the center upon noticing Baran was "queer" by the way he walked and talked. The boy's mother, who thought gays "shouldn't be allowed out in public" much less permitted to work at daycare centers, said that she "didn't want no homo" watching her son.

When that child later tested positive for gonorrhea of the throat, Ford used the test against Baran at trial, even though A) the child never accused Baran of forcing him to perform oral sex, B) the child, in fact, specifically denied having sexual contact with Baran on the witness stand, C) Baran tested negative for gonorrhea, D) the boy had told his mother two months prior that his stepfather had orally raped him, and E) on the very day Baran was convicted, charges against the stepfather were turned over to the D.A.'s office for possible prosecution. Baran's counsel was never informed of the allegation against the stepfather. Addressing the gonorrhea issue in his closing arguments, Ford implied that Baran's "lifestyle" made it probable that he contracted gonorrhea at other times and knew how to quickly eradicate it to cover his tracks.

In his closing argment, Ford likened Baran's job at a daycare center to a "chocoholic in a candy store," and hypothesized that in the "five or ten minutes" he was able to be alone with a child without being seen by other staff or children, Baran "could have sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite." The appeals court that eventually overturned the conviction ruled that the incompetence of Baran's counsel "facilitated the speculative, stereotypical, and deeply insidious links between homosexuality, gonorrhea, and child molestation."

An affidavit signed by Baran's boyfriend at the time also paints Ford as a homophobe. According to the document, the D.A. spent an inordinate amount of time asking Baran's boyfriend about his own sex life, employing variations of the word faggot, and a mocking, drawn-out pronunciation of homosexual. The affidavit alleges that in the ensuing months, Baran's boyfriend was pulled over by police officers and further harassed on a daily basis, and that Ford told him, illegally, that if he spoke with Baran or Baran's defense attorney, he would be arrested. This of course is just an accusation. But it's a serious one, particularly against a sitting judge. And it has never been properly investigated.

In upholding the ruling that granted Baran a new trial, the appeals court added in a footnote that if the state wanted to retry him, Baran could file a motion for a hearing on Ford's possible misconduct. By dropping the charges, the D.A. avoided that hearing. "In my opinion, the possibility of an embarrassing hearing into misconduct by a former prosecutor and now sitting Superior Court judge was the main reason, if not the reason, they decided to drop the charges," Silverglate claims. "The appeals court opinion cut a bit too close to the bone for them."

So while Bernard Baran is free after 22 years of incarceration, at the moment there is no plan to look into the actions of the prosecutor, now a sitting judge, responsible for the conviction. In his position on the Massachusetts Superior Court for the last 20 years, Ford has presided over some of the state's most serious criminal trials. He also serves on a committee that helps determine the state's rules and guidelines of criminal procedure.

Baran has said he isn't sure he wants to endure a lawsuit, but even if he did such a suit would still be unlikely to get to Ford. Prosecutors enjoy absolute immunity from civil rights lawsuits, even in cases of misconduct that lead to false convictions. And they're rarely disciplined in other ways, either. Appeals courts rarely even mention prosecutors by name when criticizing their conduct. (Ford wasn't named in the Massachusetts appellate court's decision.) Courts and bar associations also rarely hand down professional sanctions. According to a study released earlier this year by the advocacy group The Justice Project, "Despite the prevalence of prosecutorial misconduct all over the country, states have consistently failed to investigate or sanction prosecutors who commit acts of misconduct in order to secure convictions."

The only way Ford's actions in the Baran case could now be examined would be for one of the state's legal ethics boards to open an investigation, either on its own or in response to a complaint. Silverglate says that if there's no action in the coming months, he may file a complaint himself.

Radley Balko is a senior editor at Reason magazine.

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