Family secret tests legal system - East Valley Tribune: Chandler

Family secret tests legal system

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Posted: Friday, October 7, 2005 10:57 am | Updated: 9:55 am, Fri Oct 7, 2011.

A school guidance counselor listened last year as a 12-year-old student unloaded a family secret. Months earlier, the girl said, her 19-year-old brother by adoption had molested her multiple times at their Chandler home.

Her parents and grandmother had discovered the incident when the evidence was new, but they decided to handle the matter internally.

The school counselor made a different decision and reported the case immediately to Chandler police.

Now investigators want the girl’s father — a Chandler doctor who works with children and who once served on the board of the Child Crisis Center — charged with failure to report child abuse. They want the girl’s mother and grandmother charged with the same crime, which lawmakers beefed up in 2003 to a felony.

But Maricopa County Attorney Andrew Thomas turned down the case when it reached his office Aug. 30 — leaving Chandler detectives frustrated.

"Like all my cases, I’ll continue to investigate until I’ve exhausted all my leads," Chandler detective Brendan Busse said. "My argument is if someone is really good at covering up a crime and having the victim not disclose anything, then they’ve won."

A SECRET BURIED

When the girl’s 74-year-old grandmother gave her statement to police in February, she described a chilling scene.

She pushed on the slightly open door of her 19-year-old grandson’s room in the summer of 2004, but he forced it closed.

She knew who was in there and she shouted her name repeatedly.

The woman screamed and pushed on the door, but the young man held it

back.

Finally he gave in, and the grandmother entered the bedroom.

What she discovered made her "sick at heart," she told police: Her grandson in his boxer shorts and T-shirt with his topless adopted sister. She told police the incident might not have been the first.

Afterward, the parents held a family meeting.

They exiled the 19-year-old to a family property in Texas and told the family they would not be calling police — but if other relatives wanted to, they could.

"I left it up to them," the mother said in the report. "If they felt that they need to call it in, then they could so do that."

Meanwhile, the parents decided not to seek counseling for their daughter. The mother told police that she consulted a professional with a hypothetical situation, and that person told her the incident would need to be reported to authorities.

So the family put it behind them.

For nearly a year, the daughter of a child advocate was left to advocate for herself.

PROBLEM RESURFACES

Then in November, a concerned classmate at a Chandler junior high school told her guidance counselor that her friend was upset and contemplating suicide.

The counselor talked to the girl and then contacted state Child Protective Services and police immediately, as required by law.

"If your level of concern is raised, we call it in and let the agencies take over," Chandler Unified School District administrator Diane Bruening said. "Don’t debate whether it’s a good idea or bad idea. Error on the side of the children."

Police then interviewed the girl’s grandmother and parents.

"My understanding from both children is that they were playing games with one another," the mother said in the report. "Both (the girl and her brother) said it was consensual and that it was just something they did."

Later in the report, she said: "The two children had been playing together as doctor or whatever they were doing."

State law specifies that a 12-year-old is not capable of consenting to sexual acts.

Experts say child sexual abuse may appear consensual in the sense that someone may have said yes, but the act cannot be considered consensual because a child lacks the maturity to make an informed decision.

"Why don’t we have a 12-year-old consent to buy a house?" said Tempe psychologist Claire Kurtz. "Children may not be sophisticated enough to set healthy limits."

It’s the law that establishes those limits and police who must enforce them.

CHARGES RECOMMENDED

But the county attorney has control over who gets prosecuted on felony charges.

In the case of the Chandler doctor, county attorney spokesman Bill FitzGerald said the evidence was insufficient.

The law reads: "Any person who reasonably believes that a minor is or has been the victim of . . . abuse . . . shall immediately report or cause reports to be made of this information to a peace officer or to a child protective services." The law’s definition of "person" includes "the parent, stepparent or guardian of the minor."

Chandler police said the girl’s parents had "reasonable belief."

"It’s (the county attorney’s) job to file charges and interpret the law," Busse said. "The best I can do is put together the case. I do have a disagreement with their interpretation."

Busse said the county attorney wants police to prove something beyond reasonable belief. "I’m hanging my hat on the words ‘reasonable belief,’ " he said, "which tells me there may have been a crime."

To prosecute the 19-yearold would require full disclosure from the girl, who is unwilling to give a detailed interview to police, Busse said.

Since she won’t fully disclose what happened, police are not recommending charges to the county attorney for the man suspected of molesting his sister.

DIFFICULT TO ENFORCE

From Jan. 1, 2004, to July 2005, the county attorney’s office prosecuted five cases of failure to report, according to records.

"There may have been other instances where people have failed to report," said Barnett Lotstein, special assistant to the county attorney. "But sometimes you may charge the more serious offense and you may not charge the less serious offense."

He said failure to report cases are difficult to prove, but the county attorney prosecutes them aggressively.

In the past, state law said anyone who treats or cares for children must report suspected physical or sexual abuse only if their "observation or examination" discloses the abuse — but not if they learn about it secondhand. In the past, people who violated this law were guilty of a misdemeanor and could serve up to six months in jail and/or receive a $2,500 fine.

The new law increased that penalty to a felony with sentences of up to one year in jail and/or a $150,000 fine.

The law changed "to have more people file reports and for cutting down child abuse," said Barrett Marson, a spokesman for House Speaker Jim Weiers, R-Phoenix, the bill’s sponsor. "You hope to ensnare as many people as possible who have a belief that there are problems."

AFTERMATH

Experts said any child abuse victim should receive counseling, but the police report does not indicate whether the 12-year-old had any.

The the girl’s parents did not return phone calls.

When police told the girl’s father that his child might have benefited from counseling, he responded: "Uh-huh. Now, are you a doctor that can make that determination?"

According to police reports from February, the brother suspected of molesting his sister attends school in Texas.

The mother told police he is not to return to the house or see his sibling because she "felt like there’d been hankypanky, and I don’t believe in that."

The mother also said in the police report that her son is "trying to take responsibility for his life" and is "having some depression and some emotional issues because he feels like he needs to kill himself," because "he’s afraid that his life will come to an end."

Police indicate in the report that the girl is distraught, but the family said she doesn’t appear upset.

"We’re pained that something like this might have occurred," the father said. "And we want to do whatever we can do to be good responsible parents about it."

The mother said: "Being a mother, loving both my children, that would’ve been a very difficult compromise in my life, and I felt that it could be handled by keeping them separated."

Note to readers: The Tribune withheld the names of the Chandler parents and others in this story to protect the identity of a 12-year-old girl, who was possibly sexually abused. Details of the case and witness testimony come from a Chandler police report.

Child abuse facts

• "False allegations by children represent between 1 (percent) and 5 percent of reports. Therefore, unless there is substantial evidence that the statement is false, it should be interpreted as a good indication that the child has, in fact, been sexually abused." (U.S. Department of Health and Human Services, 1993)

• "Many experts believe that sexual abuse is the most under-reported form of child maltreatment because of the secrecy or ‘conspiracy of silence’ that so often characterizes these cases." (Focus Adolescent Services)

• Children who have been sexually abused and silenced will often draw pictures of themselves without mouths. (Child Help USA)

• "When sexual abuse occurs within the family, the child may fear the anger, jealousy or shame of other family members and be afraid the family will break up if the secret is told." (Focus Adolescent Services)

• "Family members commit 47 percent of all reported sexual assaults against children in their own homes." (Focus Adolescent Services)

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