Systematic Abuse

The Daily Journal, October 13, 2003

Rules Limiting Testimony by Mothers in Abuse Cases Impedes Justice

By Gloria Allred and Marisa Gonzalez

Should courts be permitted to require mothers who allege domestic violence or child sexual abuse by the father to place their allegations in a written declaration, and thus be deprived of the opportunity to provide live testimony unless the opposing party elects to cross-examine the complaining parent?

The California Chapter of the National Organization for Women, in an amicus brief it filed in Margaret F.G. v. Superior Court of California, brought in the U.S. District Court for the Northern District of California, contends that the answer to that questions is no. NOW argues that the practice of prohibiting live testimony unless the opposing party elects to cross-examine irreparably harms women litigants and their children, increases gender bias against women and deprives them of their due process rights in custody disputes.

In 2002, California National Organization for Women released a report based on the complaints of nearly 300 women who felt they had been discriminated against in a California family court. NOW identified gender bias and denial of due process as among the ways women are not justly served in family courts. Within the category of "denial of due process," NOW identifies the inability to present evidence of child sexual abuse and domestic violence as a barrier to women having a fair trial.

Eighty-six percent of those cases involved domestic violence and a smaller subset involved allegations of child abuse. Only 31 percent of the women litigants in these trials were able to present their own live testimony about the abuse, and only 25 percent were allowed to present live witness testimony.

This denial of due process has been, to some degree, caused by local rules of court that prohibit live, direct testimony. See Reifler v Superior Court, 39 Cal.App.3d 479 (1974). Instead, litigants are required to submit declarations that become evidence unless the opposing side elects to cross-examine that witness. Then, and only then, is live testimony allowed and, in one particular county, only on the matters in the declaration. No re-direct is permitted outside the scope of those issues raised on cross. In custody cases where allegations of sexual abuse have been raised, a mother's fundamental right to care for and protect her child is at issue. Given the tendency of some judges, custody evaluators, family court services workers, mediators and special masters to discredit a woman who has reported allegations of abuse, a woman must be given every opportunity to establish her credibility, including the ability to call and have witnesses testify in person.

Additionally, the state has an interest in providing a full hearing to ensure that the public is given every appearance of a fair trial. For example, the court in Catchpole v. Brannon, 36 Cal. App. 4th 237 (1995) held that a trial not only must be fair but also must appear fair to a reasonable person. Thus in order for due process to be served, a mother must be provided a full and fair hearing on the merits to protect against bias and allow a greater opportunity for her credibility to be evaluated. There must be every effort to prevent stereotypes from improperly influencing judicial determinations in these matters.

According to the Judicial Council of California Advisory Committee's report on gender bias in the courts, custody disputes in which the mother alleges that the father has sexually abused their child often trigger the application of stereotypes by those called upon to participate in the custody decision. For example, some fathers assert, and some judges believe, that the allegations are usually false and made by hysterical or vindictive women seeking financial or other advantage in a custody dispute.

Research, however, indicates that these assumptions are not valid. The fact that the charge of malicious false allegations is routinely made shows that women's and children's credibility is a major problem in our justice system.

The stereotype of the woman as over-emotional or vindictive is prevalent in our society and has its roots in historical beliefs about the female psyche. Professor John E.B. Myers of the McGeorge School of Law, who is often cited by the U.S. Supreme Court as an expert on child sexual abuse, once quoted John Henry Wigmore as saying that women's "psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environments, and partly by temporary physiological or emotional conditions.

"One form taken by these complexes is that of contriving false charges of sexual offenses against men. The unchaste mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is either the heroine or the victim. On the surface, the narration is straightforward and convincing. The real victim, however, too often in these cases is the innocent many. No judge should ever let a sex offense charge go to the jury unless the female complainant's social history and mental make-up have been examined and testified to by a qualified physician."

This bias is prevalent today. When women report what their children tell them about sexual abuse or describe their own victimization, they are dismissed by some courts as pathological, crazy or deliberately spiteful. Such views of women are particularly apt to be held when fathers are "professional people," able to maintain facades of normalcy and logical thinking.

Some also believe that it is easier to regard a mother as hysterical or crazy than to recognize an otherwise seemingly caring and rational father as capable of violence or inappropriate sexual behavior. Gender and class biases permeate society at such a deep level that "rational, logical, professional" men are found to be more believable than "crazy, hysterical" mothers. Thus women face an uphill battle to gain credibility when they bring accusations of sexual abuse to a court already inclined to view such women as suspect. In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court affirmed that parents have a 14th Amendment right to make decisions concerning "the care, custody, and control of their children," and, indeed, acknowledged that right as "perhaps the oldest of the fundamental liberty interests recognized" by the court. Justice David H. Souter, in his concurring opinion, stated that "[t]he strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associations on the development of the child's social and moral character."

This makes clear that a parent's right to control and care for his or her child includes the right to prevent that child's association with dangerous people. If a mother is restricted by court rules in the presentation of evidence of child abuse, she is significantly impeded in her ability to prevent her child's association with a dangerous person, such as the other parent who is accused of abuse. This is a critical flaw in the implementation of local rules that limit testimony.

The problem is exacerbated in proceedings that require written declarations. Studies have shown that readers evaluate written work more highly when it is written by a man than by a woman. An often replicated experiment found that where two groups evaluate an identical set of essays, one group believing the essays to have been written by a man, the other by a woman, those essays believed to have been written by a man are consistently evaluated as better written and more persuasive.

This prejudice is harmful because women's credibility is a deciding factor in cases involving issues of child sexual abuse and domestic violence. Gender bias on the part of some judges, evaluators, family court services personnel, mediators and special masters often means that women who raise such allegations are discredited. When women are required to submit written declarations in place of live testimony, they are frequently at a disadvantage as compared to male litigants.

Moreover, they often have less money to hire effective counsel and are often represented by women attorneys, who themselves sometimes experience bias in the courtroom.

Women need to be assured a full and fair hearing on the merits in custody proceedings where domestic violence or child abuse allegations have been raised. Their rights to protect and care for their children are at stake. They must be given every opportunity to establish their credibility before the trial court judge, and the process imposed by courts that limit their testimony to declarations is insufficient to protect those interests.

Gloria Allred is a partner in the Los Angeles law firm of Allred, Maroko & Goldberg and president of the Women's Equal Rights Legal Defense and Education Fund. She is counsel of record on the amicus filed on behalf of NOW in Margaret F.G. v. Superior Court of California. Marisa Gonzalez is a second-year law student at Boalt Hall.

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