The following letter has been reproduced in HTML format exactly as written by:
March 13, 1998
Dear Ms. __________:
I received your letter of February 23, in which you expressed concern about the laws governing the prosecution of sex offenses against young children and asked my views regarding those laws.
To begin, no person charged in this state with conduct constituting a crime, whether as a juvenile delinquent or as an adult, may be found guilty unless evidence establishes each element of that crime beyond a reasonable doubt. This heavy burden of proof is a fundamental part of our system of justice and applies to every type of offense.
In certain cases a young child is the victim and only witness to the criminal conduct. It must be noted that the New York State Criminal Procedure law provides that a defendant may not be convicted solely upon the unsworn testimony of a child. That law also provides that a child less than 12 years old may not give sworn testimony unless the court is satisfied that he understands the nature of an oath. Moreover, the child will not be permitted even to give unsworn testimony unless the court is satisfied that the child possesses sufficient intelligence and capacity to justify the reception of such testimony.
While these rules provide essentially reasonable safeguards to the integrity of our system of justice, please be advised that the New York State District Attorneys Association is supporting a change in the presumptive age for giving sworn testimony from 12 to nine years old. Two years ago, our Association helped bring about a dramatic improvement in the law regarding crimes against children. For many years, the New York Court of Appeals interpreted the law to require that the young victims of repeated sexual assaults be able to testify as to the precise date, place and time of each separate attack. Given the limits of a child's memory, coupled with the fact that these crimes are often committed in the child's home, nursery, or school by care givers or relatives whom the child sees frequently, this requirement was unrealistic and often impossible to meet. This problem was largely resolved in 1996 by the creation of new crimes entitled "Course of sexual conduct" in the first and second degrees.
In the final analysis, as a legal and practical matter, the ability to successfully prosecute sex offenses committed against young children depends entirely on the facts and circumstances of a particular case and on the intelligence and capacity of the particular child involved. For that reason, I assign these very difficult cases to our specialized Domestic Violence/Sex Crimes Bureau whose legal and support staff have the sensitivity, dedication and expertise required to do justice.
I hope this information is helpful.
Yours truly,
Robert T. Johnson
