Attorney General Biden submitted the following letter to the editor to the Wilmington News Journal on April 2, 2014.

Letter to the Editor

John Sweeney

The News Journal

950 W. Basin Road

New Castle, DE 19720

Child sexual abuse cases are among the most serious cases a prosecutor handles. The harm to the victim is profound. A child is vulnerable, and never more so than when the perpetrator is a parent. Juxtaposed against the severity of the crime is the difficulty proving it in a court of law.

When a child reports sexual abuse, it is often that child’s word against the word of the alleged perpetrator. Authorities who receive reports of abuse ensure that children are interviewed by the Children’s Advocacy Center, where an expert questions the child. Often, however, the child has made previous statements to members of his or her family, and frequently those statements differ in some respects. This is particularly true with very young children, who are on the cusp of being capable of relating an event in detail. The younger the child, the less detailed the account is likely to be.

Authorities look for corroborating evidence to support the report of abuse. They search for forensic evidence, such as DNA. They look for medical evidence of abuse. When the abuse occurs on a date prior to the report and investigation, there is rarely forensic evidence available. Moreover, unless the abuse alleged is an act likely to inflict physical injury, evidence of medical trauma is likewise rare.

Therefore, in child sexual abuse cases, the sum total of the evidence is often the word of the child against the word of the alleged perpetrator. The State bears the burden of proof beyond a reasonable doubt, the highest standard in our justice system. For the State to meet that burden, the child must testify because a defendant has a Sixth Amendment constitutional right to confront witnesses against him. This means that the child must testify in a sterile courtroom before a room full of strangers.

Before the child can even testify, the court must be satisfied that the child is competent, that is, whether the child knows the difference between right and wrong. This determination is made after the court questions the child.

Assuming the child is deemed competent, the child faces additional trauma by having to recount the abuse in front of the very person who committed it. Trials generally occur several months to a year after the event. All memories fade with time, a child’s in particular.

For these reasons, a prosecutor’s decision about whether to take a child sexual abuse case to trial or to resolve it through a negotiated plea requires the striking of a difficult balance. If the case proceeds to trial, and the jury returns a not guilty verdict, this means that the alleged perpetrator will walk away free, with no conditions attached. There will be no punishment. The defendant will not be required to register as a sex offender, will not be supervised by probation and parole, and will not receive sexual offense counseling. Indeed, he is free to resume his life, free to contact the child and to reenter the residence and resume his former life, absent a separate Family Court order to the contrary.

All of these considerations were in the mind of the prosecutor assigned to this case. This was not a strong case, and a loss at trial was a distinct possibility. The only eyewitness to the crime was the four year old victim. There was no medical or forensic evidence of any kind. The defendant did not make a statement to the police, although he made an ambiguous apology to the victim’s mother. A conviction would have required twelve jurors to find unanimously, beyond a reasonable doubt, that the crime had occurred.

In recognition of the weakness of the case, the assigned prosecutor offered a plea and sentence recommendation that guaranteed the defendant would be required to register as a sex offender, participate in court-ordered sex offender rehabilitation therapy and to have no contact with the victim and any other child under the age of sixteen. A loss at trial would have rendered any of these restrictions impossible.

The judge who considered the appropriate sentence in this case did so after careful deliberation with due regard for all of the circumstances. The Truth in Sentencing Guidelines, which judges use to inform their exercise of discretion, called for a sentence of 0 to 22 months in jail. The Defendant had already entered treatment. The Defendant accepted responsibility. These factors are listed in the Guidelines as mitigators that the Court must take into account. Moreover, the parties had agreed upon the recommendation to the Court. The judge acted properly by imposing a sentence that placed the Defendant under supervision for a lengthy period of time, required him to complete counseling, placed him on the sex offender registry and prevented him from contacting the victim and any other child. Judge Jurden is an outstanding jurist. She carefully considers the salient factors in all criminal cases without any regard for wealth or social status. In this case, Judge Jurden exercised sound discretion based solely on the merits of the case before her.

Nothing is more important than protecting children from harm. That is why I ran for office in the first place. One of my first acts in office was to create the Child Predator Task Force which, for the first time in Delaware, puts police and prosecutors side by side to identify and bring to justice the worst predators in society – those who seek to hurt Delaware’s children. This work has led to the convictions of more than 180 predators and the rescue of more than 120 children who were being abused or groomed for future abuse. This past year, with the help of the legislature, we created the Child Victims Unit to provide more effective investigation and prosecution of child death and injury cases. We have fought successfully for new laws that impose tough mandatory sentences on child pornographers, and this year, I am working with legislators to give kids targeted by predators even stronger protections.

I commend the hard working, dedicated prosecutors who strive to achieve justice in each and every case. We will continue to fight for children.

Sincerely,

Joseph R. Biden, III Attorney General