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When an abused kid is the star witness, courts struggle for a just solution

After abuse

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Kelly Dore and her husband, Tim, are moving forward. - COURTESY KELLY DORE
  • Courtesy Kelly Dore
  • Kelly Dore and her husband, Tim, are moving forward.

Kelly Dore, 40, can still remember the details of the courtroom where she watched her father's sentencing. She remembers rows of seats that reminded her of church pews, and the size of the room, which must have seemed larger than life, given that she was only 15 years old. She cannot forget where her father sat, surrounded by his family — her own grandparents — while she read her victim impact statement.

"He kept trying to smile at me, to wink at me, and have notes passed to me," Dore says.

Dore stood on a platform to read her statement, but still had to crane her neck to see the judge. She tried to convey the pain that 14 years of sexual abuse, including being traded for money and drugs, had caused her, how it had changed her life so that she never wanted to be home. She had to lie to her mother. Tears overcame Dore and she couldn't finish the statement. Her mom got up and read the rest.

The judge was not interested.

"She didn't even take the time to hear my statement at the sentencing hearing. She was looking through papers," Dore remembers.

In the 30-odd years since the trial, Dore has learned to move on. She ran a private psychology practice before being elected commissioner for Elbert County in 2014. (The Republican resigned her seat in 2016 citing "internal issues" and "unethical behavior" from fellow board members.) Now she's the executive director of the National Human Trafficking Survivor Coalition, trying to end international human trafficking. She lives in Parker with her husband, former state Rep. Tim Dore, four children and three rescue dogs. One, a Chihuahua with a fiery temper, demands constant attention.

Dore sits at her dining room table, both hands on a cup of coffee, dark hair falling just past her shoulders. A painting of Jesus adorns the wall behind her.

Dore is a busy mom and passionate activist. She worries about getting her kids home safely from school and the struggle of survivors around the world. Still, when she speaks about the abuse she experienced as a child, she lets go of her coffee and wrings her hands. "It sits with you for the rest of your life," Dore says. "I've worked to recognize that I just have to let it go."

Dore is talking about the abuse she suffered, but also the investigation and legal battle that followed. Rather than helping her heal, the investigation made her relive her pain again and again. Instead of feeling safe, the courts made her feel used and defeated. It was worth it, she thought, to put him behind bars. When her father got an eight-week sentence, after eight months already served, it made her wonder what all that pain was for. While the case is sealed, she says part of his plea meant he was not required to be on the sex offender registry, and a search confirms he's not listed.

The U.S. criminal justice system is designed to be thorough and subjects all parties to intense questioning. Cases dealing with sexual assault on children, however, are some of the most sensitive. A 2018 report from the Thomson Reuters Foundation and Rights4Girls concludes that children who have survived sexual assault often have complicated psychological trauma, which law enforcement and lawyers can easily trigger, adding to the child's pain rather than alleviating it.

Dore says those experiences make it difficult to trust adults and easy to find more evidence that nowhere in the world is safe.

The skepticism fundamental to the U.S. justice system can make children feel like no one believes them and there is no one they can trust. They have to go over their stories multiple times with law enforcement, recounting every last detail of their abuse, Dore says, adding that if the case goes to trial, children are almost always called as witnesses. They answer questions from both lawyers — often stared down by the person who abused them.

While victims' rights groups want to strengthen legal protections for children and save them from the ordeal of testifying whenever possible, defense attorneys worry that their clients could lose their right to a fair trial. Rick Hernandez, a Denver attorney with the Orr Law Firm, has a long history in juvenile law and believes sympathy for a child can bias a jury, resulting in wrong convictions.

A veteran and former military defense lawyer, he says, "Some of these people are innocent, we know that."

While cross-examination can be difficult for children, the defense has a right to examine any witness of any age. In cases involving sexual assault on children, the jury is typically sympathetic to the child's story. But just because a child was assaulted does not mean the right person has been accused.

"If we get the wrong person, or do the wrong thing, we're not getting justice," Hernandez continues. "We're just creating more victims."

Survivors for Solutions Executive Director Autumn Burris believes that courts can make the legal process easier on victims while maintaining the integrity of the process, although it would require rethinking the way sexual assault on a child and human trafficking cases have traditionally been handled. Rather than imprisoning offenders as the only goal of justice, Burris believes we should also consider helping the survivor heal.

"How do we strike that balance between getting justice for survivors and incarcerating perpetrators?" Burris asks. "How do we strike that balance between health, safety and wellness for that individual?"

Autumn Burris says courts need to consider survivors. - GRIFFIN SWARTZELL
  • Griffin Swartzell
  • Autumn Burris says courts need to consider survivors.

It takes time to process trauma, especially when it occurs over a long period of time. In Dore's case, she suspects the abuse started almost at birth. Her mother says she didn't like being around her father even as a baby. When she was just 6 months old, he allegedly left a pillow on top of her in her crib.

Dore believes she can remember being assaulted when she was just a year old. She says her mother also suspected something and found she had a bladder infection around that age. When Dore was 3, a doctor told her mother she showed signs of sexual abuse, but said she wouldn't share the evidence with police because she didn't want to damage her medical practice.

Dore says her mother did her best to protect her, but was unsure of what was going on, especially since Dore wouldn't talk to her. There was also violence in the home. Dore's parents divorced when she was 5, and her father maintained partial custody of her, allowing the abuse to continue.

Initially, Dore says, just her father assaulted her, but as Dore got older he started trading her for drugs at friends' houses. Today, this would be called human trafficking. As Dore got older, she realized that this didn't happen to other girls. Knowing something is wrong was one thing. Freeing herself from the long and abusive relationship was another. He was, after all, her father.

"I was still afraid to turn him in," Dore says. "I think it was the fear, but I also think it was a bit of loyalty. No one wants to turn on their family."

After suffering in silence for more than a decade, Dore, then 14, decided to tell a teacher that she was being hurt at home. "From there it ended up being a firestorm," Dore said. "I had to go talk to so many different people."

The teacher called Dore's mom and then the police. Just after breaking her silence, Dore had to tell law enforcement every detail of 14 years of abuse. She remembers being interviewed again and again — almost always by a man she did not know.

Dr. David Spiegel, Medical Director of the Center for Integrative Medicine at Stanford University School of Medicine, has studied trauma and believes we should think of it in stronger terms than memory. "It becomes a kind of reliving of the trauma experience," Spiegel says. "So the parts of your brain that gets you aroused and prepared for a physical assault tend to get activated."

When children are asked to describe traumatic moments in their past, their bodies respond as if they are being attacked again, Spiegel says. Dore remembers her body freezing up both during the abuse and when she had to talk about it. "There were times when my body would just shut down, and I would feel like I was inside my body and completely paralyzed," Dore says. "Sometimes it would happen when I was being abused, and sometimes it would happen in stressful situations. I think it's that flight or fight mechanism. It's how we survive."

According to Lara Mullin, deputy district attorney in Denver, children used to be interviewed six or seven times before trial. In the time since Dore was in the courts, protections have been put in place in an effort to reduce the number of interviews children have to undergo. Now, children are first sent to a forensic interview with a trained psychologist. The forensic interview is videotaped so that law enforcement can watch the recording instead of interviewing the victim again. While forensic interviews have helped streamline the process in theory, they are not a complete solution. Even today, survivors may end up doing up to seven interviews before trial.

Survivors are usually accustomed to lying to cover up what their abuser has done to them. As a result, a child's story can change with each telling, Burris says. Processing abuse takes time, and children may remember more as they try to adjust to being safe. When the survivor's story changes, the tendency among law enforcement is to push the child harder to try to get the truth.

Mullin believes that all parties have to make an effort "to understand how victims of trauma act, which may be counterintuitive to what those of us who haven't been victims understand."

Interviews with police are just preparation for the real thing: testifying in court and facing questions from both lawyers. Often, the person who abused the child is in the room. According to Mullin, the child usually ends up on the stand.

Spiegel, who has served as an expert witness, says that "even the kindest cross-examination is going to stir up recollections of the assault itself. Others might feel like an assault in themselves. There's no easy way to do it. It's a matter of how hard it is."

Cases involving sexual assault on a child rarely have evidence to spare, Mullin says. Because of the long and secret nature of childhood sexual abuse, the case often comes to rest on the word of the child against the word of the accused.

Hernandez recently defended an older boy accused of assaulting a younger child at day care. He remembers the prosecutors' tactics with a grimace. "That transcription is brutal. He had no idea how to talk to children," Hernandez says. "The prosecution asked the child, 'Where did he touch you?' And the child didn't answer. The prosecution asked the same question over and over, treating the child like an adult witness. That's just going to confuse a 5-year-old."

Testimony, difficult in the best circumstances, becomes even harder when the abuser or trafficker is present in the courtroom. "The trafficker can simply look at the survivor, and give that look, and recreate that feeling of power and abuse," Burris says. "We don't put ourselves in their shoes and think, what would it feel like for me to have to testify?"

In recognition of how hard testimony can be for children, some states have started allowing alternative testimony, which typically involves questioning the child through a closed-circuit television, according to the Reuters report. Removed to the judge's quarters, children do not have to endure the stare of their abuser while testifying against them. As of January 2018, Reuters found alternative testimony was available in 26 states. The maximum age for alternative testimony, however, varies from 10 to 18. In Colorado, the maximum age for alternative testimony is now 14, so Dore could have petitioned for alternative testimony if her case happened today. Still, judges rarely approve the motion if a child is older than 7, Mullin says.

While alternative testimony can protect children from retraumatization, Hernandez believes it takes away from the quality of the testimony. "You're putting them in a bubble," Hernandez says. "The whole purpose of a person testifying in court is so the jury can see their mannerisms while they're testifying. What they do and don't do, simple body language. Is there a motive behind what they're saying, or is it pain and fear? And the jury loses that."

Hernandez concedes that remote testimony is an important option to have and is warranted in some situations, but he worries that the safeguard created for exceptional cases will become the norm.

Lara Mullin says not all victims want a trial. - COURTESY LARA MULLIN
  • Courtesy Lara Mullin
  • Lara Mullin says not all victims want a trial.

The difficulty of testimony is compounded by the weight a survivor's word carries. Child sexual abuse cases are traditionally centered on the survivor's testimony. Because survivors are the best witnesses, they are tasked with convicting their abuser.

Survivors of childhood sexual assault and human trafficking often feel like it is up to them to convict their abuser. "A lot of it rested on my testimony," Dore remembers.

"It comes back to the onus we put on victims of child sexual abuse and trafficking to take down the perpetrator," Burris says. "I think that's dead wrong."

While evidence can be hard to come by, Burris believes it could be more vigorously pursued. In the age of the internet and cell phones, most crimes leave a digital trail. Since Dore's trial, some prosecutors have started trying to put less weight on a child's testimony. Colorado's Child Hearsay Law, which allows adult witnesses to testify based on what a child told them rather than what they directly saw, gives prosecutors a way to take some of the burden off survivors.

When Mullin prosecutes, she tries to keep victims off center stage if possible. "Victim centered, not victim built," she says. "I have tried cases without victims before, if the evidence can be elicited without the victims there."

Asked about the role of testimony, Burris responds: "I think it should be a victim right and not a victim responsibility."

In the end, Dore didn't go to trial. After six months of scheduling and looking ahead to an expensive year-long trial, her family agreed to a plea deal. "At that point I think my mom and stepdad were so done with the cost and the time that they sat me down, and the prosecution sat me down, and said this is the best thing," Dore remembers.

"There are cases where we make the decision that trial is going to be difficult," Mullin says. "I always give them the option to opt out of the prosecution."

While settling usually comes with a reduced sentence for the accused, Mullin and Hernandez agree that it is often the best option. "I think cases get settled because we can sometimes find a just resolution that everyone can live with that doesn't look like trial," Mullin says. "Just because a case gets resolved with a plea agreement, it doesn't mean there was a problem with the case."

Beyond the difficulties and pain a trial can involve, sometimes trial isn't a priority for survivors. "If survivors want to get that justice, then by all means," Burris says. "But a lot of the time that's not true. A lot of the time people just want out."

Dore says she resigned herself to the plea deal, knowing that her father was pleading guilty to 19 of 27 counts. Dore's case has since been sealed, but she remembers charges including incest, aggravated assault, kidnapping and slavery. Considering the severity of the charges, Dore and her family figured that her father would be in jail for a long time. "When she sentenced him to an additional eight weeks, it was devastating," Dore says. The case left her father with a single charge of sexual assault on his record, a Colorado Courts search reveals.

Dore came out of a drawn-out and painful process — which caused her to consider suicide — feeling like justice had not been done. Looking back, she thinks she should have gone to trial. Even if the charges had not stuck, Dore would have been able to tell her side of the story to a jury. "Looking back now, I would want to see my day in court, because I don't think I ever got it," she says. "As a child, all you feel like is that the system has let you down."

Spiegel believes that an uncaring system can mimic a child's upbringing. "When a trial involves confronting an abusive parent, and it turns out that the court doesn't do much about it, it reinforces the idea that nowhere is protected," he says.

Instead of creating more protections for victims, Hernandez thinks the courts should make better use of the ones already in place. He believes that training lawyers and judges to work with kids would help with the day-to-day suffering children can experience. Lawyers are often unused to working with traumatized children or are only working in the juvenile office as a stepping stone in their career, Hernandez says.

"That's the key — empathy. You have to be able to put yourself in that child's shoes. Otherwise you're just following a script," Hernandez says. "They've been let down so many times, they have to believe that they can trust you. And that's on both sides of the aisle. If you don't get trust, you don't get the truth."

Dr. David Spiegel says people relive trauma. - LINDA A. CICERO / STANFORD NEWS SERVICE
  • Linda A. Cicero / Stanford News Service
  • Dr. David Spiegel says people relive trauma.

Denver is doing well compared to other Colorado counties, Mullin says. The Denver District Attorney's office has enough cash to pay victims' advocates and send prosecutors, like Mullin, to multi-agency meetings with law enforcement and school officials. Small or rural counties with less robust budgets may have few prosecutors and resources. In these counties, lawyers and judges may not know how to handle kids who have endured so much pain at home. (The Fourth Judicial District Attorney's Office, which covers Colorado Springs, did not return calls seeking comment.)

All sides believe there is room for improvement. "I do think we have one of the greatest court systems in the world," Dore says. "But when it comes to advocacy for victims, and feeling like you get your justice, I think we have light years to go."

Mullin, for her part, believes even well-funded counties like Denver can do better. "I think we can always continue to learn more and become better educated, become better communicators, become better listeners," she says.

It took Dore a long time to realize she had been trafficked. After resigning from her role as Elbert County commissioner in 2016, she started putting more of her energy into her anti-trafficking work. Eventually, it clicked. Reading over the definition of trafficking, she noticed that her abuse filled all the criteria. She remembered her father trading her for drugs, being moved to his friends' houses.

While Dore recognizes that it is too late to get the justice she missed as a child, she is committed to helping others process their pain. Looking up from her coffee, Dore says, "Maybe this is how I finally get my day in court."

Joe Purtell is a freelance writer and recent graduate of Colorado College. His writing has addressed criminal justice and homeless policy. He lives in Reno, Nevada.

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