Convicting child abusers: New rules from the Supreme Court?

Convicting child abusers: New rules from the Supreme Court?

WASHINGTON, October 5, 2014 — There are few things that arouse our collective ire as much as child abuse. We all want the abuser punished, and some offer very strong opinions about the extent and level of the punishment.

Laws across the country differ in the path that prosecutors must take to get convictions. The Sixth Amendment to the United States Constitution raise an important barrier:

“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …”

When an abused child, too young to be considered competent to give testimony, does not testify, and is not then able to be “confronted” (cross examined), should some or all of the child’s out-of-court statements be allowed into evidence?

Ohio v. Clark, a case now on the Supreme Court’s Fall docket, involves a defendant named Darius Clark, who was convicted at his trial of numerous charges of abusing his girlfriend’s minor children: a three-year-old boy and a two-year-old girl. A daycare teacher initially noticed a bloodshot left eye on the boy and asked him what had happened. The boy eventually responded that Dee did it — Dee was Darius Clark — and repeated this to teachers, social workers and later to police.

At the school, a supervisor also saw red marks on the boy’s chest and decided to call the County Department of Children and Family Services office, reporting a suspicion of child abuse. The boy’s sister was looked at also; she had two black eyes, a large burn on her cheek, a swollen hand and a “pattern of sores on her hairline.” These were also reported as child abuse. At the hospital later that day, a physician indicated he suspected that child abuse for both children had been going on over a three-week period.

Every state has mandatory reporting requirements for certain individuals: teachers, social workers, and medical professionals. All of these have a duty to report suspected child abuse to authorities.

In part because Clark could not “confront” his accusers — the children he abused — the Ohio Supreme Court reversed his conviction.

The Ohio Supreme Court determined that the out-of-court statements made by the boy qualified as ‘”testimonial” under the Sixth Amendment’s Confrontation Clause.

The Court also held that Clark was denied due process of law. The Fourteenth Amendment to the Constitution provides in part:

“No State shall … deprive any person of life, liberty, or property, with due process of law …”

The application of due process here is a two-part procedure. The boy’s statements to teachers and social workers were barred by the Ohio Supreme Court because they were considered “testimonial” and not found to meet any exception to the rules governing what is and what is not “testimonial,” and the Court determined that the statements made to teachers and social workers were made to “agents of the state,”  even though clearly teachers and social workers are not police officers.

If a victim makes a statement to police, the police cannot normally repeat it in court as being offered for the truth of the content of the statement. This is called hearsay. Court rules, and due process, require the victim to testify, and prohibit an “agent of the state” from recounting what the victim earlier said. All of this is designed to provide for the most reliable rendering of the truth by those most capable of giving it. If police were allowed to testify about “what happened” based on what they say witnesses told them, we can imagine that the spectrum of evidence considered could range from true, to slightly exaggerated, to downright fabrication, all in an effort to convict.

Police have been known to lie.

The “problem” with the Ohio Supreme Court’s ruling on both counts is simply that there is a large and longstanding history in this country which assumes that when children are too young to testify, their “hearsay” is admissible in child-rape and assault cases. Further, from the 18th century, in many situations in most states, our nation’s courts have held that statements between private parties (child and teacher or child and social worker) are not testimonial, and thus allowed into evidence.

Ohio in this appeal to the Supreme Court argues that a teacher subject to the mandatory reporting statute “acts as an agent of the state for purposes of law enforcement.” Ohio, however, is not the only state that has ruled on these matters. There is division among the many states that have. A 2007 California case emphasizes the proposition that the mere fact that doctors, teachers, and social workers must report suspected abuse does not transform them into investigative agents of law enforcement. Another 2007 case in Montana says that there was no indication that their legislature intended to deputize these individuals into law enforcement.

The punishment and subsequent stigma of being a child abuser are deserved and should follow the abuser forever, denying him or her many jobs and prohibiting contact with children in many circumstances and situations.

Due process rights are supposed to protect the truly innocent, thus our laws are designed to let ten who are really “guilty” go free before even one who is truly “innocent” is convicted. The process, however, does not protect someone who is wrongfully accused from the stigma that attaches afterward, even if later acquitted.

Darius Clark, by all accounts, is a child abuser, but not yet, officially. Ohio says his rights were violated. Others are in the same position across the country. The Supreme Court will decide where these lines are drawn.

Many states have good protections for the accused in their laws, and they still convict those who were charged are child abusers. Some state high-courts, as in Ohio, need to  interpret their laws or pass laws to incorporate protections that do not allow for over-reaching, yet force judges to confirm proper prosecutions of arguably one of the worst type of criminals.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on and can be ordered there, or obtained directly on Amazon: Click here to order


Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website and “like” the concept on the Facebook page


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