Hermenuetics

Comments

Interesting article. I look forward to the discussion. I edited a psychology dissertation this past year that included a literature review about using animals during therapy. It was fascinating. As you might imagine, children are often uncomfortable in therapists' offices, but the presence of a dog or cat often puts the child right at ease and conversation is much freer. This was due, in large part, to the child feeling like something else was the center of attention, at least in terms of eye contact. Without a pet, children often"squirmy" in their seats because all eyes on on them.

I see how the courtroom would be even more intense for a child, making dogs even more helpful. As my husband is a psychologist in training, even earning a concentration in forensic psych, I look forward to this discussion. I think we'll both find it fascinating.

Posted By: Laura Ziesel | August 12, 2011 2:37 PM

Thanks for writing this, Elrena. Quite the ethical quandary. One thing that strikes me, though, is that the mere act of testifying and going through cross-examination and all that could, conceivably add to the trauma of the rape and abuse itself. So many factors at play here. And then from the lawyers' perspective: What are the ethics of challenging the conviction in this way? If the initial result were thrown out on procedural grounds, would she then be potentially forced to testify a second time, in any retrial?

Posted By: Anna Broadway | August 12, 2011 2:39 PM

I don't see the problem with having the dog there. Man alive, the 15 year old had to testify against her own father, had to admit that he raped her and got her pregnant. That is humiliating and shameful. If a jury can't look past a dog they have a problem. They could be swayed by many different things. When one serves on a jury he or she is supposed to listen to the testimony and make objective decisions. This doesn't always happen, but when minors have to go on the stand and testify against people who were in authority over them, they need courage. And if it takes a dog then so be it. That father was not a victim here. The girl was.

Posted By: Jane Hinrichs | August 13, 2011 6:26 PM

I agree with Jane. At the end of the day, you have to ask, was justice served? And the answer is, yes (well actually no, because the father deserves more than 25 years, IMHO.)

Posted By: Nadine | August 13, 2011 9:00 PM

This is not an all-or-nothing issue. This post doesn't touch on it, but in at least one circuit in my state of Florida, these dogs are used in pre-trial proceedings such as witness interviews, depositions, and in waiting rooms outside court. That may give the witness most of the comfort without adding the potentially prejudicial (to the defendant) appearance of the dog in court. Last year the Florida Bar News reported that one dog handler suggested that a dog familiar to the child from the pretrial process might be brought into court in the audience benches so the child could see the dog and recall the feeling of comfort and strength, but the jury would be unaware of the issue. The dog would appear to be a service dog for the handler. I don't know if that would work, or if defense counsel would still object, but it's an interesting thought on a compromise.

The problem with the post and some of the comments is that they have already concluded the father IS the rapist. Even when we are certain the defendant is guilty, and I'm not doubting that's the case here, our system of justice, which protects us all, requires the defendant be treated throughout the trial as innocent until proven guilty, no matter how difficult and unfair that may seem to be to/for the witness/victim. The burden must be on the state to prove the crime beyond a reasonable doubt, even, and most especially, when, we all are "certain" the defendant is guilty.

Allowing the child to have the dog beside her in court may engender sympathy from the jury beyond just the child's testimony. (I'd be curious to know from the psychiatrists or psychologists whether any studies have looked at this issue.) While it may sound harsh to want to avoid engendering sympathy in the eyes of the jury, and my heart goes out to that little girl, and we may wonder just how much more sympathy is possible for an already sympathetic witness such as the victim of her father's rape, the defendant has the right to have a trial free from things in the courtroom that may generate extra sympathy or believability for an adverse witness. Our system of justice depends on it. If it was you, or your family member, who was unjustly accused, that is what you would want, and what you would be entitled to.

As to the ethics of appealing on the grounds of the dog, which might mean the girl has to testify again, it is the ethical obligation of the defense lawyer to zealously advocate (within the bounds of the law) for the rights of his/her client. Same for the prosecutor on behalf of the victim and "the people." If a defense lawyer misses or fails to take advantage of an appealable issue, the defendant has the right to make another appeal on the grounds of "ineffective assistance of counsel," so even if this defense lawyer didn't appeal, someone would, or the defendant could file pro se (on his own). Any appeal, on any grounds, if successful, might result in a re-trial of the defendant, which would require the child to testify again. Sometimes criminal defense work is ugly, but our system only works when it is done properly and fully.

ps I don't do criminal law, so I don't have a "side" here.

Posted By: Christian Lawyer | August 14, 2011 4:29 PM

Good points, Lawyer. If we went merely on the supposition that a guilty verdict is a foregone conclusion and that a fair trial is merely a pesky formality, then we should empower police officers whenever they arrest someone to drive them straight to the state penitentiary. No need for our Constitution to exist at all in that scenario.

That said, though, there are a number of ways to assist someone (whether an alleged victim or anyone else) who is testifying in court under very stressful situations. Those include using dogs, stuffed toys or even having a support person sitting up with the witness during the testimony, as long as these are done in ways that do not affect the jury's ability to evaluate the evidence fairly. I don't live in Florida, and have no comment to make on any case there, but if these things can be done in a way that is appropriate and keeps the witness from being traumatized while in court then more power to them.

Cheers,
Tim

Posted By: Tim | August 15, 2011 1:33 PM

I don't remember one moment of my father's abuse but what I do remember is the medical exam (and screaming my head off) and being at the DA's office (and screaming my head off) because there were just so many people around and it scared the living daylights out of me. Consequently there was never a trial and my dad never saw a moment of jail time. Thankfully there was just enough physical evidence that the judge could order that my father got to have 3 hours of _supervised_ visitation per week (when my parents divorced). Without my testimony they couldn't do anything else.

Yes, I'm for any comfort that can allow a child to speak boldly about what has happened to them. Unless you know what its like having all those adults peering over you (and your already scared for having betrayed the "trust" of the person whose been hurting you) and not understanding what all of these people are doing or saying..... its can be even more terrifying than the actual abuse!

For me that was back in the mid 80's - When I got older I'd heard that they started allowing children to video tape their testimonies. I guess that's not being allowed anymore?!?

Posted By: Leslie | August 15, 2011 2:19 PM

Oh and by thankfully I mean as opposed to them not doing anything and him being allowed overnight visitations, etc....

Posted By: Leslie | August 15, 2011 2:21 PM

Oh for crying out loud! "Inalienable rights"??? I fail to see how allowing a dog to sit at the feet of a child (and 15 is a child, and she certainly was even younger when the abuse allegedly happened) while she gives traumatizing testimony violates the "rights' of the defendant! Give me a break! How about- let the defendant have a dog, too. This IRKS me to no end! A fair trial, yes. A ridiculous restriction on the trial- no. It is far more likely that the (already existing) biases of the jurors will affect their ruling than a dog in court. And we do allow fallible, biased jurors to serve, do we not? Even the most hardnosed lawyer can't guarantee a juror won't have biases for the other "side." The system is already, necessarily imperfect and I cannot believe a dog would make it more so. Gah!! Lawyers!

Posted By: Mary C | August 15, 2011 2:29 PM

Bless you, Leslie. I hadn't seen your post before I started typing mine. I am SO sorry for what you had to endure from your father and from the system. God help us when we don't defend the defenseless! May God (continue to) give you peace and healing.

Posted By: Mary C | August 15, 2011 2:58 PM

The Declaration of Independence is scriptural? Infallible? Inerrant? Dictated by the Holy Spirit? Oh, American exceptionalism.

Posted By: Walter | August 15, 2011 3:41 PM

Mary C - Thank you! - the story gets even worse - the church we were members of - my mom and I were the ones that had to leave and find a new church! My dad got to stay though..... *RME*

But I know without a shadow of a doubt that God loved me and was there for me during that entire time - even before I was saved at age 9 (all that other happened when I was 5). There's a reason God allowed all of those things to happen because I can look at someone and truly understand what they are going through - while each of us is different and we can't know exactly what someone is feeling, etc, there is still a level of understanding there.

Posted By: Leslie | August 15, 2011 3:49 PM

Um, I don't see anyone here callint the US Constitution "infallible" or "inerrant." Not even Mr Christian Lawyer. Your cynicism is unbecoming, Walter. If you are an American, it sounds elitist. If you are not, it sounds petty and judgmental.

Posted By: Mary C | August 15, 2011 3:53 PM

Hold it! I paused at that 'scriptural' word, too - the author said that the founders thought the rights were scriptural, and proceeded to quote from the Declaration (which, by the way, said they were 'self-evident' - not from scripture!). So, Walter may have jumped to conclusions (the author didn't say the Declaration was scripture), but the author made a leap, too. And "elitist"? Is that code for something?

Posted By: Sue Gillespie | August 15, 2011 5:00 PM

Where was the judge who can empty the court with just the defendant, witness, judge, court reporter, jury, lawyers, policeman and court reporter left. Even at that, it's a lot of men. Yes, I said a lot of men. Where was the girl's mother. Who was she in agreement with, the father or the girl. Actually unless the mother or a sibling testifys, the only proof there is, is the dna from the pregnancy which I assume matched the father of the girl. That should have been enough to convict the father as the girl was under 15 when the raping happened and he is therefore as the adult the one totally responsible whether or not "she wanted it". With the dna the child shouldn't have been required to testify and therefore no dog would have been needed. What the judge allowed was the second raping of the girl, I mean how else did the father get her pregnant.

Posted By: Original Anna | August 15, 2011 6:22 PM

Original Anna wrote "What the judge allowed was the second raping of the girl."

I understand this frustration with the system, but this comment is so far out of line as to be almost in a different universe. You have no idea what judges do day in and day out. We hear awful things all day long: families that are falling apart, with parents who now want a stranger in a black robe to issue orders about what is best for the children; people who have lost their livelihood or property, never to be regained; victims of violent crimes and sex crimes (often the same) facing the attacker in court; grieving family members seeking recovery when their loved one has been killed in an auto accident; infants who have been abandoned by parents who are unable to control their addictions or stop associating with criminals and are now incarcerated; workers who have suffered discrimination from bosses who just don't understand that their employees are entitled to dignity and fair dealing. I could go on, but you get the idea.

Throughout it all, judges are required to listen fairly and thoroughly to everyone so that all people have their opportunity to be heard. Some claims are meritorious and others are not. By following the right procedures for everyone, everyone gets their day in court. Is there a better way to do it? Probably. But I'll tell you this. hearing such awful things day after day is a burden - sometimes a crushing burden, with the judge needing to retreat to chambers in order to let the tears flow - that judges bear because it's part of the job. Do you want to carry that burden day after day, year after year? I doubt it. Few people can handle it.

So please, don't accuse a judge who follows the law and does so in as fair a manner as possible of "raping" a victim a second time.

Tim

Posted By: Tim | August 16, 2011 10:55 AM

Several points here...
- While I agree that an accused individual has the right to a fair trial; at what point did it become an inalienable right? Inalienable means that it is a right that is unable to be surrendered, but that is exactly what accurs when the accused pleads guilty or plea bargains; they surrender their right to a fair trial. So by definition it is not a right that is inalienable.

- I am sure someone will correct me if I am wrong, but I believe the verbage also reads speedy as well as fair. When was the last time we saw a speedy trial? I am not advocating that since trials are not quick we should dispense with fairness as well, I am simply pointing out that if we are going to adhere to the fairness portion of the law (as we should)we need to adhere to the portion that requires an expeditous process.

- My personal opinion is that the pendulum of our legal system (I cannot bring myself to refer to it as a justice system)has swung to far in the direction of protecting the accused with little to no regard for the rights of the victim or even society as a whole. When the guilty are released on procedural grounds or because of a perceved violation of their rights and consequently more inocents are victimized our legal system has failed to act in due diligence. I am certainly an advocate that a person has a right to a speedy and fair trial, but the accused is not the only person in the proceeding that has rights.

- In this particular case I am going to assume that the prosecution had more evidence than the young girls testimony. I see no problem with having a dog in the courtroom to comfort this young girl who is not only having to face the father who brutalized her (because thats his right); she is having to relive the whole experience in front of not only him, but everyone else in the courtroom as well. Most adults would not be able to bring themselves to do this. If the father has the right to face his accuser, his accuser has the right to have whatever resource made available to her to get through the ordeal (within reason, and a dog is certainly within the bounds of reason).

Posted By: Burt | August 17, 2011 1:36 PM

Great post, Elrena, and I appreciated your sensitivity to and prioritization of empathy, even when an animal is the conduit - best wishes, Ben (Not One Sparrow, a Christian voice for animals)

Posted By: Ben DeVries | August 19, 2011 11:20 PM

If we went merely on the supposition that a guilty verdict is a foregone conclusion and that a fair trial is merely a pesky formality, then we should empower police officers whenever they arrest someone to drive them straight to the state penitentiary. No need for our Constitution to exist at all in that scenario. I fail to see how allowing a dog to sit at the feet of a child (and 15 is a child, and she certainly was even younger when the abuse allegedly happened) There's a reason God allowed all of those things to happen because I can look at someone and truly understand what they are going through - while each of us is different and we can't know exactly what someone is feeling, etc, there is still a level of understanding there.

Posted By: Service dog | December 1, 2011 11:35 AM