If you or someone you know needs resources or support related to sexual violence, contact the Maine Coalition Against Sexual Assault’s 24/7 hotline at 800-871-7741.
Gov. Janet Mills has agreed to allow prerecorded videos of children talking about being sexually abused to be submitted to a court in lieu of children having to testify, changing how hundreds of Maine cases may be prosecuted and potentially resulting in more convictions each year.
While some viewed LD 765 as a straightforward change, it was not guaranteed given the stakes and vehement opposition from defense attorneys. One prominent defense lawyer called it “one of the most significant bills as it relates to the criminal justice system” this legislative session because he believed it would undermine the constitutional rights of defendants.
Meanwhile, prosecutors and victim advocates shared horror stories of children suffering breakdowns before and after having to testify in front of their alleged abuser and strangers. They described how some cases never moved forward because child victims were unable to talk in court about what happened to them, even though they had done so in a more child-friendly setting. A child’s testimony may be the most critical piece of evidence a jury will consider.
LD 765, sponsored by Anne Carney, D-Cape Elizabeth and signed by Mills on June 16, will now allow children’s recorded interviews with a neutral interviewer to be allowed to be admitted to a court instead of requiring them to testify, though children can still be cross-examined by a defense lawyer.
The deputy district attorney for the office handling cases in Androscoggin, Franklin and Oxford counties is hopeful the change will result in more successful prosecutions.
Prosecutor Kate Bozeman reviews more than 100 reports of sexual assault each year in Androscoggin County alone to decide which cases she is likely to win in court. She will pick only a small percentage for prosecution. She believes sexual assault is the most difficult crime to prove. Complicating her cases even further is that most of them involve children — often young children.
In 2021, 57 percent of the children interviewed at Maine’s child advocacy centers, where children talk to trained interviewers after disclosing abuse, were under the age of 12. Of those, 23 percent were under the age of 6.
In one of Bozeman’s cases, a 10-year-old girl on the stand looked at the jury and froze, Bozeman said. She couldn’t answer any question, let alone those about her sexual abuse. When the girl left the courtroom, she found a room where she turned off the lights, hid under a chair, “and was rocking and catatonic for at least an hour,” Bozeman said.
The court found the defendant guilty of sexually abusing others in the same family, but not the girl because she couldn’t speak, Bozeman said.
“We do these trials to try and hold a person accountable for such a serious crime and such a serious threat to children and public safety, but it’s completely gutting to have to put a child through that,” Bozeman said. “It truly is a daunting thing that is hard for even our adult witnesses to do, and it can just be totally paralyzing for children.”
LD 765 will now create an exception to hearsay rules to allow for recorded interviews of child sexual abuse victims to be submitted into evidence, if a judge approves doing so after all parties’ views have been heard on the matter. The interviews will be admissible in both criminal and family matter cases. The law will require the interviews to be conducted by a forensic interviewer who asked no suggestive or leading questions. The interviews may not be conducted with a relative or attorney present.
The interviews are currently considered hearsay, even though they depict the victim’s own statements, because they happen outside of court — at a child advocacy center.
The centers, which are funded in part by the Maine Department of Health and Human Services, are designed to be child-friendly places where people who need the child’s information — such as law enforcement, child welfare workers and prosecutors — can watch the interview via closed circuit television in another room and then make decisions about how to proceed with investigations and court cases.
The process was created to prevent children from having to be interviewed multiple times and to avoid having officials accidentally introduce prejudicial information to a child. The centers also have family advocates who can support and provide resources to non-offending parents and caretakers.
“We spend time building rapport and establishing comfort for children. We find, and research tells us, that this is more conducive to children honestly describing their experiences than in other settings,” Molly Louison said in her written testimony to the legislative judicial committee in March.
Louison has been a child forensic interviewer for six years and opened the Children’s Advocacy Center of York County in 2017. Since then she has interviewed more than 620 children involved in child abuse investigations, she told legislators.
While the bill received support from prosecutors, pediatricians, victim advocates and forensic interviewers, it garnered strong opposition from defense attorneys, several of whom argued that politicians should not be making changes to court rules.
“[T]he court has an established procedure for reviewing potential rule changes, and that procedure provides for input from all parties in a deliberative process with multiple levels of review. At the end of the day, if the court wants to make a change in the rule, then the court will do so,” argued Hunter Tzovarras in his written testimony. He is a criminal defense lawyer and member of the Advisory Committee on the Rules of Evidence, which can recommend rule changes.
The Maine Trial Lawyers Association agreed, saying that the Legislature “would be abandoning an established practice which could lead to legal complications in the future” if it approved the bill.
The Maine Association of Criminal Defense Lawyers called the bill “radical.”
“It would be unheard of to have a recorded witness interview admitted in evidence,” defense lawyer Walter McKee said on behalf of the association. “Indeed, it is one of the most significant bills as it relates to the criminal justice system this session. If this bill is passed, it will uproot centuries of juris prudence as it relates to hearsay evidence and would also undermine the constitutional foundation as it relates to a defendant and a defendant’s burden of proof.”
Defendants have a right to confront witnesses in criminal prosecutions, a right that is enshrined in the Sixth Amendment, said Meagan Sway, policy director for the American Civil Liberties Union of Maine, which opposed the bill.
There are other exceptions to hearsay rules, however, argued Bozeman. For instance, a person’s statements to their doctor can already be admitted as evidence. And other states allow many paths for forensic interviews and other statements by child victims to be admitted into evidence.
“Many courts throughout our country have weighed in on this process,” said Shira Burns, executive director of the Maine Prosecutors’ Association. They all agree that “if the witness is available for cross examination, the process is constitutional.”