Judge's ban of social worker's testimony in child abuse case upsets investigators


A judge's ruling and the subsequent acquittal of a Baltimore man on child sexual abuse charges have upset Howard County prosecutors and child abuse investigators. They worry that widely accepted procedures used to interview child abuse victims are no longer valid.

The acquittal was particularly troubling, say those involved in the investigation, because of the nature of the charges.

"This was a 5-year-old little girl who was given a sexual disease, and the stepfather was acquitted," said county police Detective Sandra Regler, who had interviewed the child. "That's the bottom line for me."

The case involved a 26-year-old man who was on trial for having sex with his 5-year-old stepdaughter. The investigation began when it was discovered that the child had gonorrhea.

At the trial, assistant state's attorney Walter F. Closson tried to admit as evidence the child's statements against her stepfather through the testimony of a social worker. The social worker had witnessed the police detective's interview with the child through a one-way mirror.

According to a state law, social workers, physicians, teachers and psychologists may present hearsay testimony in court about statements made to them by an abused child under age 12.

But two weeks ago, Howard County Circuit Judge Cornelius F. Sybert Jr. barred the social worker's testimony. Judge Sybert ruled that the child's statement couldn't be admitted under the hearsay exception law because she made her statement to the police detective conducting the interview, not to the social worker observing the interview.

Without the child's statement as evidence, the state's case was weakened substantially. The jury acquitted the man on charges of child abuse, second-degree rape and sex offenses. The man's name is being withheld to protect the child's identity.

Judge Sybert's ruling has raised questions about interview procedures used by police and social workers in Howard County, even though other judges are not bound by the ruling. It has also prompted the state's attorney's office to look into having the law changed.

"It's very easy to say it's just one case, but the child is the one who suffers," said Sgt. Fred McHargue, supervisor of the Howard County police child abuse unit. "When you work with these kids and see how victimized they are, to have this kind of failure in the system is very distressing."

The intent of the statute had been to allow a child's statement as evidence in court when the child was unavailable or too traumatized to testify. "If a child can't testify, that's why we're relying on the provision," said Michael Rexroad, a senior assistant state's attorney in Howard County. "Otherwise, we don't have a case and end up with a dismissal or not-guilty [verdict]."

Another troubling aspect of the ruling, according to police and prosecutors, is Judge Sybert's interpretation of the social worker's role in child abuse investigations. Even if the social worker was "present" during the interview, he wrote, she may not have been acting in the course of her profession, as required by the statute. "There has been no showing that she was rendering any treatment or counseling to the child to help her recover either psychologically or physically from her experience" Judge Sybert wrote.

Prosecutors specializing in child abuse cases say that the statute does not require a therapeutic relationship between the child and the person to whom they make a statement of alleged abuse.

"It virtually emasculates the law by preventing social workers from doing their jobs in an investigative context," Mr. Rexroad said.

For now, the state's attorney's office here is planning to meet with social workers and police detectives who staff the Child Advocacy Center to re-evaluate their interview procedures for child abuse victims. Social workers and police detectives may have to be in the same room when they conduct interviews to increase the chances of successful prosecution.

The change may be necessary from a legal standpoint, but child abuse investigators say it's not always the best way to conduct interviews with abused children.

"Sometimes it's overwhelming for a child to have both the social worker and the investigator in the same room," Sergeant McHargue said.

Generally, the person who has the best rapport with the child conducts the interview. The other investigator may take notes in the same room or watch and listen to the interview through the one-way mirror.

In addition, there's not enough staff to have two people involved in every interview, he said.

Staff members at the Child Advocacy Center have followed this procedure to interview children since the center opened in January. Investigators said they were aware of the hearsay law but were under the impression that their interviewing procedures would meet the requirements of the statute.

"We've got to rethink everything now," Sergeant McHargue said.

Although the child abuse hearsay statute was enacted in 1988, local prosecutors say this is the first time it's been used in this county. Mr. Closson said he is not aware of any ruling on the statute by a state appellate court. Prosecutors in other jurisdictions say they have used the statute successfully, although it only comes up in a small number of cases.

They said that the interviewing procedure used by investigators in the Howard County Child Advocacy Center is a standard technique used in other counties. Prosecutors in Baltimore and Carroll counties said they've never tried to admit as evidence testimony from a social worker observing an interview through a one-way mirror but would never envision it as a problem.

"If a child is extremely traumatized, you don't want two people in the interviewing process," said assistant state's attorney Kathi Hill, who heads the child abuse unit in Carroll County.

Given the multidisciplinary nature of child abuse investigations -- with police investigators and social workers often working side by side -- it would make sense to include police officers in the group of people who can give hearsay testimony from a child, police and prosecutors say. Mr. Rexroad said he plans to look into the possibility of amending the law to expand the four categories.

Police child abuse investigators argue that like social workers, they are required to complete specialized training in child abuse investigations. Typically, the investigators in Howard County's Child Advocacy Center have advanced degrees in counseling or social work, said Detective Regler.

"I could never figure out why police officers were excluded from that statute. They're probably the best interviewers going as far as not asking leading questions," said Sgt. Wilbur S. Smith, the supervisor of the child abuse unit with the Baltimore County Police Department.

Prosecutors said the four professionals included in the statute were probably chosen because children would be more likely to speak truthfully to them in making initial disclosures about child abuse.

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad