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Aug. 9, 2022

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Reversal of Fortune: County refuses to film alleged abuse victims

Others say videotaping ensures fair interviews

The Columbian
Published:

Twenty years ago, Ray Spencer pleaded no contest to charges he raped his daughter, son and stepson.

Since then, psychologists, prosecutors and law enforcement officers have discovered children can easily be induced to lie about being molested. Children, particularly if they are interviewed multiple times, like they were in the Spencer case, tend to say what they think authority figures want to hear.

“What we do know for certain is that children often have a tendency to lie regardless of the consequences that the lie may have on others,” said Rob Warden, executive director of the Center on Wrongful Convictions at the Northwestern University School of Law. “Just look at the Salem witch trials.”

It is impossible to say whether videotaped interviews would have exonerated Spencer. A former Vancouver police officer, he has always maintained his innocence.

But Gov. Gary Locke, when he freed Spencer from prison before leaving office last year, cited problematic victim interviews as one of many flaws in the Clark County Sheriff’s Office’s investigation.

It wasn’t the first time a child sex abuse investigation was faulted for the way children were interviewed.

A mass prosecution a decade ago in Wenatchee, in which at least 28 people were jailed, fell apart under the scrutiny of appellate courts. A major flaw was the multiple interrogations of alleged victims. The “Wenatchee sex ring” continues to be the subject of lawsuits.

It also continues to influence how child abuse investigations are conducted. After the Wenatchee case crumbled, state lawmakers ordered all 39 counties to develop a formal policy for child sex abuse investigations. The state Supreme Court ruled law enforcement agencies can be financially liable for conducting discredited investigations.

Some people caution that financial liability is not enough to prevent false accusations.

One idea to ensure the integrity of an investigation has been to videotape interviews between detectives and children.

Videotaping has long been favored by defense attorneys as a way to protect against leading questions or other manipulative tactics that have led to children giving misleading or false information. Doctors in Portland and Seattle favor videotaping, too, and more prosecutors statewide are using the technology.

But in Clark County, officials at the Child Abuse Intervention Center don’t believe in videotaping.

Senior Deputy Prosecutor Kim Farr sees the demand for videotaping as a sign people are in denial about child sex abuse.

Other people who report being the victim of a crime don’t get that level of scrutiny, he said. “Why would we only record children?”

Seattle attorney David Marshall said child sex abuse is unlike other crimes because standard evidence, such as eyewitnesses, weapons or fingerprints, don’t play a role.

“On the one hand, these are serious crimes, and children who are in danger of being molested need to be protected,” Marshall said. “On the other hand, it’s common that the only evidence a crime has occurred is what the child has to say.

“People can go to prison for decades on the basis of testimony of children.”

This was Spencer’s fate.

He pleaded no contest in 1985 to charges of raping his two children and a stepchild. His life sentence was commuted in December by Locke. In the commutation order Locke cited “a number of troubling aspects of the investigation.” He included the fact that a respected King County deputy prosecutor asked by Clark County to review the case had problems with the way Spencer’s daughter was questioned by a since-retired detective.

Child Abuse Intervention Center Director Bob Kanekoa said detectives at the center are well-trained to avoid leading questions and other criticized tactics. He believes videotaping would cause greater stress for children.

Experts advise videos

That doesn’t appear to be the case for counties that use videotaping.

As part of a pilot project, five counties, including King, began videotaping all child abuse interviews in 2003. The Washington Association of Prosecutors tracked the cases through the legal system to see the impact of video. A report is due in December, said Tom McBride, the association’s executive director.

Early indications are that counties have found videotaping to be a benefit, McBride said. All five counties King, Kittitas, Stevens, Benton and Franklin continue to videotape even though it’s no longer required for the project. Seven more counties have bought recording equipment.

In a 2001 report for the Washington State Institute for Public Policy, Dr. Lucy Berliner, director of Seattle’s Harborview Center for Sexual Assault & Traumatic Stress, reviewed three ways interviews can be documented: on videotape; with the interviewer taking “near verbatim” notes; or writing narrative-style summaries.

Taping, she found, “was feasible, well accepted by interviewers, and has only minor impact on children’s reactions to the interview.” She concluded it was “clearly the most efficient and reliable method of documentation.”

All interviews are videotaped at one of the nation’s oldest and largest child abuse assessment centers.

It has been that way since CARES (Child Abuse Response and Evaluation Services) Northwest opened its doors in Portland in 1987.

Dr. Leila Keltner wouldn’t have it any other way.

Keltner is medical director at the center, which is jointly operated by Kaiser Permanente, Legacy Emanuel Children’s Hospital and Doernbecher Children’s Hospital.

“If there was a flaw in the interview, if a leading question was asked, the jury needs to see that,” Keltner said.

Charles Sparks, a deputy district attorney in Multnomah County, sees the tapes as invaluable in evaluating the strength of a case.

“Sometimes you watch the tape and things just don’t add up,” Sparks said. “I think pretty long and hard before I take a case to court that CARES does not see as persuasive. (And if I do), it’s because I’ve got other information.”

Sparks said it works to his benefit in court that the main goal of CARES is to determine whether a child has been sexually assaulted, not to prosecute the offender. In Clark County, by contrast, the detectives who interview children work at the CAIC alongside prosecutors.

“Dr. Keltner’s job is not to make me, as a prosecutor, happy,” Sparks said. “That makes her a very powerful witness.”

Laws in Oregon and Washington regarding videotaped interviews are different. In Oregon, tapes are shown to grand juries, which determine whether there’s a basis for charging someone with a crime. In Washington, a prosecutor or judge makes that call. In Oregon, taped interviews are admissible in court. They aren’t used in Washington courts, although some judges in counties participating in the videotaping pilot project have allowed the tapes to be shown to juries.

In Washington, defense attorneys have the right to conduct pretrial interviews with children. In Oregon, children don’t have to talk to the defense until they are on the witness stand at trial. Attorneys rely on the tapes to know what the child has to say.

“Any bullying has to take place in the courtroom, in front of the jury,” Sparks said. “It does not play well.”

In Washington, videotaped interviews are primarily useful in the pretrial stages of a case.

Lisa Johnson, a senior deputy prosecutor for King County, said one of her primary concerns about videotaping interviews was the child’s right to privacy. The solution was to make defense attorneys sign a court order agreeing to not copy the tape or show it to anyone other than the defendant.

“You can just imagine what people could do with (the tapes),” Johnson said. “That’s the downside of taking someone’s image.”

She said it’s hard to know whether letting defense attorneys and defendants view the videos encourages guilty pleas, a question that’s expected to be answered in the December report. It did reduce the number of times a child had to be interviewed, however.

That’s important, both for the integrity of the case and to avoid retraumatizing an abused child, said Jacqueline McMurtrie, an assistant professor at the University of Washington Law School and director of Innocence Project Northwest.

McMurtrie said some of the children in the Wenatchee case were interviewed as many as 10 or 12 times in suggestive and coercive sessions with Child Protective Services workers, detectives and prosecutors.

“What research has shown is kids are very suggestible,” McMurtrie said. Certain kinds of interviewing techniques can lead a child to give a statement in order to please the interviewer, she said.

“Even interviewers who are well-meaning can ask leading questions,” she said.

“We do that with our (own) kids,” she said. “When we want to get to the bottom of something, we don’t ask open-ended questions. We ask very specific, direct questions.”

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