Those of you representing folks accused of sex offenses know the power of mere words. An accusation standing alone, without corroboration, can condemn a person whether they have committed a crime or not. Often these words come from children. And once a child makes a claim, the state abandons its critical apparatus and works to foster an environment in which accusations are treated as "disclosures." We give tremdndous power to children by treating them as oracles of shameful truths.
There will come a time in which our incredulity about the words of children looks as troubling as the manner in which we treated accused witches in Salem, Massachussetts. In 1692, 19 men and women and two dogs were convicted and executed for consorting with the devil. These deaths were the product of the words of children who claimed to have been seduced by a Satan-worshipping household servant named Tituba.
Arthur Miller wrote a play about the trials in 1953, The Crucible. He viewed the Salem trials as a parable through which the activities of the House Un-American Committee's prosecution of Americans for disloyalty could be viewed. What gives so much power to mere accusation?, he wondered. Why are some times ripe for an hysteria that is so easily seen to be false in a calmer time?
I wish Miller were writing now. I'd like to see what he would make of the moral panic present in our courts whenever the state chooses to adopt the words of a child as a truth worth fighting for. We do not permit children to make contracts and regard them as incapable in most of life's serious affairs. But yet, if the state chooses to take the uncorroborated claim of a child as truth, to treat it as a disclosure based upon which it can and should deprive a man or woman of liberty, then a defendant is left often as helpless to combat the claims as were the true victims at Salem.
I re-read The Crucible a few weeks ago to prepare for a civil trial in which a client sued the mother of a child who made extravagant claims. The mother defended by saying that it was her job to believe and support her child. I asked the jury to conclude that it was also the mother's job to behave responsbily, and to provide guidance to her child. Treating children as oracles is always dangerous. We won, proving defamation and intentional infliction of emotional distress, known in some states as outrage. It was an encouraging verdict.
I read the following words from The Crucible to the jury during my opening statement and closing argument. "Is the accuser always holy now? Were they born this morning as clean as God's fingers? I'll tell you what's walking Salem -- vengeance is walking Salem. We are what we always were in Salem, but now the little crazy children are jangling the keys of the kingdom, and common vengeance writes the law."
Children do not deserve privileged status in our courts. Perhaps it is time to reinvigorate the Mosaic "two witness" rule, once required in homicide cases, and apply it to child sex cases. In those cases in which liberty hangs solely on the word of a child, and in which there is no other witness or any physical proof of harm, it should simply be too risky to prosecute merely on the word of a child. Massachussetts learned that the hard way in Salem; why do we need to learn the lesson all over again?