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Dr. Phil takes on child sex abuse allegations by playing participant, advocate, and judge

Recently, my oh-so astute wife came to me with another legal question. Actually, it was more of a demand for an answer. She was in the waiting lobby of some establishment, and the television was tuned to Dr. Phil. We both had a bit of a bias against him, as he’s sort of a running joke in our household. It’s probably not a fair assessment, as I had honestly never even watched a single episode of Phil McGraw’s show.

For whatever reason though, we’ve made him our sacrificial lamb to represent the absurdity and exploitation evident in most every other series in his genre. Regardless, he’s made a name for himself, he has established his audience, and he was born and bred an Okie (just like me). Also, it’s arguable he played on one of the worst Oklahoma-based college football teams to ever take the field.

My wife explained to me that from the small sample size she saw, it seemed that Dr. Phil was cross-examining a mother and grandmother who were making allegations of sexual abuse against the ex-husband/father on behalf of a 3-year-old daughter.

I handle lots of sexual abuse cases involving both adults and children. My wife is all too aware of this, so she had plenty of questions as to how and why an allegation of this magnitude could end up on a daytime talk show. I reminded her that criminal allegations normally involve three classes of characters: the participants, the advocates, and the judges. The family must have asked Dr. Phil to fill one of those roles. I promised to give the episode a watch and see where Dr. Phil fell in the pecking order. To my surprise, he did an admirable job of maneuvering through all three categories.

BEING A PARTICIPANT: THE BACKGROUND

When I refer to the “participants,” I am referring to every person who had a hand in the case and the investigation prior to charges being filed or declined. That includes the accused, the accuser, those who may have had firsthand contact regarding the accusations, law enforcement, and potentially medical professionals (depending on the type of crime).

Without any prior knowledge, I was interested to see whether Dr. Phil would be acting as a medical professional for diagnostic purposes, and whether he would refrain from involving himself in the background. As may be par for his course (remember, I don’t watch this show), Dr. Phil did an admirable job of working both angles.

He metaphorically put himself in the shoes of the mother by looking into her headspace as a parent of a potentially abused child. He pleaded with the grandmother to look at the facts objectively from a mature and responsible position. He also sympathized with a father simply trying to get visitation with his daughter. According to the father, the relationship with the mother became extremely contentious when he filed for custody of the daughter relatively close in time to allegations coming to light.

Furthermore, Dr. Phil looked into the thought process of the pediatrician and law enforcement officers involved. He noted that the mother waited seven days to go to the pediatrician after the disclosure was made by the child. The pediatrician did not report the alleged abuse: An examination of the child did not substantiate the claims. Moreover, the mother waited more than two weeks to report it to the police. Subsequently, police allowed visitation for the father even in light of the accusations.

Dr. Phil looked at the potential perspective of the prosecutors who declined to filed charges. Perhaps most importantly though, he also viewed the case from the perspective of a therapist, so he could analyze the facts provided by all the participants from his years of clinical experience (more on that later).

BEING AN ADVOCATE: ‘THIS IS A SAFE PLACE TO TALK ABOUT HARD THINGS’

That “safe place” catchphrase is apparently one of Dr. Phil’s claims to fame (if nothing else, it was repeated during the introduction to every episode I viewed to double-check my assertion). However, the mother making the allegations could not have felt too terribly safe throughout Dr. Phil’s inquiry and insinuations.

Undoubtedly, when most people hear the term “advocate” in regards to criminal accusations, they immediately think of a prosecutor advocating for the state/government or a criminal defense attorney advocating for the accused. Advocates in the legal system can take many roles, though. There are victim advocates, patient advocates, and party advocates, just to name a few.

It did appear that Dr. Phil had his mind made up as to which position he would be advocating for, but that’s just TV prep, more than likely. It wouldn’t work well for the good doctor’s reputation if he were caught off-guard or unprepared on his own platform. Consequently, he had a very good grasp on the available evidence and reports from the participants in this circumstance.

Dr. Phil allowed the mother to spin out with her allegations. He confronted her about inconsistencies in her logic and timeline. He did his best defense attorney impression by leading the mother to the exact inconsistencies and truth traps that would cast sufficient doubt on her credibility and potential motives.

One of the biggest issues Dr. Phil cross-examined the mother in regards to was her delay in disclosing the allegations. Delayed disclosures happen—that’s a reality of how some people process trauma and grief. A delayed disclosure can come from the accuser failing to bring the accusations to light for some time, but it can also come on behalf of a confidant who fails to report the allegations they’ve been made aware of.

Here, the mother waited to take her daughter to the pediatrician for seven days after her daughter informed her of the issue. She also waited to inform police for 16 days. Dr. Phil noted that, even though the mother was alleging that her daughter had been raped, she did not even reference the rape in the police report. The mother also did not have a good answer for why she would allow her daughter to go back into the hands of the man who allegedly raped her for visitation after the crimes were relayed to her.

When Dr. Phil questioned her as to why she would wait for so long, her only answer was that she “was scared.” Dr. Phil countered that “you don’t get that scared, you don’t get so selfish that your fear overcomes your maternal responsibility to a child.” He explained if you’re that selfish, you’re not ready to be a mother. Honestly, he made some pretty valid points. He was an advocate.

Obviously, there are certain specific circumstances that can lead to a mother’s failure to protect her children. Battered women are legitimately scared (and for good reason). However, there was no allegation that the mother was being abused at the time or that she had any reason to be afraid of ramifications from the father of the child.

BEING A JUDGE: ‘IN MY PROFESSIONAL OPINION …’

In criminal practice, there are two types of judges: judges of the facts and judges of the law. Typically, juries weigh and analyze the facts while judges weigh and analyze the law. When a party waives a jury, then a judge can fulfill both functions. In this episode, Dr. Phil acted more as a judge of fact, as he is obviously not qualified to act as a judge of the law. Judges of fact have to weigh not only the evidence but also the witnesses relaying and sponsoring that evidence.

The “evidence” brought by the mother was scant to say the least. The episode highlighted two videos that were taken by the mother showing the 3-year-old daughter reciting the accusations against her father. There is no context to the videos, and there is no one else involved in the filming.

Dr. Phil puts quite a bit of stock in the two videos. He explains that, when viewed from his point of reference as a practitioner with 45 years of experience interviewing children, the issue isn’t even a close call for him. He notes that “she’s playing a game … it’s devoid of pain. You’re not seeing the trauma that would be associated with a child that had been raped by an adult.” He further remarks that the daughter’s affect, demeanor, emotion, tone of voice/tenor are all wrong. The videos further his doubt in the accuracy of the allegations, and he notes that the story seems well-rehearsed.

When dealing with judges of fact, it’s important to remember they are not expected to leave their common sense at the deliberation room door. They get to use all of their life experiences and background in certain areas of practice when analyzing a case. Judges of fact often watch videos of a child’s disclosure during trials for these types of crimes. The viewer is able to look at everything from body language to verbal language. In this sense, they are not only judging the evidence, but they are also judging the witness relaying the evidence. This is imperative, and Dr. Phil follows up by judging the mother’s body language as well in an attempt to infer a potential motive.

A video showing the mother’s discussion with producers is played back to her for analysis on stage. Dr. Phil explains to her that she shows many examples of microexpressions and leakage. She shakes her head “no” and puts her hands to her face when stating facts she argues she believes. Still, the mother denies any part in the accusations and holds firm to her position.

She asks why would the daughter make this up? Dr. Phil believes the mother has been damaged at some point in her life and never received help. She is projecting that pain on others. This fits in with statements from the father that she may have been sexually abused as a child. As Dr. Phil explains, people can distort things to the point they may actually believe them, because they have been hurt; they see the snake under every rock.

Although Dr. Phil never outright says that the child was coached, comments about the story seeming well-rehearsed give off the impression that he believes there may be some external force pushing the child. When the father outright accuses the mother of coaching the daughter, both the mother and the grandmother retort with allegations that he is a drunk and drug abuser. After all, you can’t make a criminal accusation (especially on TV) without slinging a little mud at the alleged perpetrator.

But after aptly inserting himself into all three roles of participant, advocate, and judge, Dr. Phil brings another nugget of truth to the table. He reminds the mother and grandmother that this situation isn’t about whether the accused has substance abuse issues or other problems unrelated to the accusations.

As he puts it: “Being a horse’s ass and a child rapist are two dramatically different things.”

Adam Banner

Adam R. Banner is the founder and lead attorney at the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. Mr. Banner’s practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes, and white collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.