Know Your Rights: A False Abuse Charge Primer for Parents
False Abuse Charges. Where should you begin? When you’ve been falsely accused of sexually or physically abusing your child, it can easily feel as if you’ve awakened in an alternate universe. Like a stranger in a strange land, you must learn how to navigate life all over again, this time under frightening new rules and a cloud of suspicion.
This is especially true when your child has been coached or otherwise influenced into supporting the false allegations, whether by an overzealous child welfare worker or an angry ex-spouse.
Emotionally, false abuse charges are devastating. Even when they’ve been willfully “cooked up” for the purposes of gaining some perceived advantage, it’s hard not to feel as if you’ve been gut-punched and had the wind knocked out of you.
Those emotions are completely understandable, and the emotional context of facing false abuse charges has to be dealt with head-on, usually with the help of a trained therapist or counselor – if for no other reason than this:
THis will be the fight of your life. You have a lot to learn about this scary new world in which you find yourself.
If you don’t learn how to successfully defend yourself against these false charges, the potential consequences are severe and harsh: prison time, estrangement from your children, loss of job and income – a sudden undoing of the life you’ve spent earning a good reputation. Because, in this twisted new world that you now find yourself, you are now presumed guilty until you are able to prove your innocence.
The key to getting through this legal nightmare is becoming an empowered, knowledgeable client for your attorney.
And the first step to that empowerment is to understand your rights.
The Sources Of Your Rights
As a citizen of the United States, your rights stem from the various amendments to the United States Constitution.
(Note: depending on your state, you may have even further protections and rights under your state’s Constitution. Talk to your attorney about this.)
The most commonly applicable rights in the context of false allegations of any criminal conduct flow from the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Like many of the Constitutional amendments that most directly affect personal rights and liberties, the Fourth Amendment’s actual text is fairly short. It may surprise you, therefore, to learn just how complex it can be in interpretation.
Basically, this Amendment guarantees you the right to insist on certain procedural safeguards. These safeguards in most cases are in place for you before the police or investigators for child welfare agencies come traipsing into your home, office, and life to search for incriminating evidence.
The most significant of these procedural safeguards is the warrant. Simply put, this is a piece of paper signed by a magistrate or judge that gives the officer the right to enter specific premises for a specific purpose.
However, in order to get that warrant, the officer must swear under oath to the issuing judge or magistrate that she has probable cause to suspect that a crime has taken place, and/or that she will find evidence of that crime in the specified location. The warrant usually must be precisely drawn, detailing the exact address of a house, for instance, and time of day, as well as the nature of the evidence sought.
There are, as mentioned above, many exceptions to the warrant requirement. For instance, there may be exigent circumstances – for instance, the officer has reason to believe someone is about to destroy pertinent evidence of a crime.
Or a person who lives in that home may consent to the search – even if the person who consents isn’t the suspected criminal. So, for example, if you live with a paramour, and she consents to the police’s search of your residence while you are not there, the police can legally use anything they find during that search in the case against you.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
When you hear someone say “So-and-so pleaded the Fifth,” this Amendment is what they’re referring to. The Fifth Amendment gives you the right to be free from being compelled to testify against your own interests.
The Amendment also grants the right to due process. This means that you must be given a fair and meaningful opportunity to understand the charges, mount and participate in your defense, and be judged by an impartial finder of fact (usually a jury, but sometimes a judge in what’s called a bench trial). Due process means there are procedures that must be followed which are designed to yield a fair and just result.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic].
The Sixth Amendment is about the actual trial and how it is conducted. It guarantees the right to be judged by a jury composed of impartial people.
It also gives you the right to confront your accusers and their witnesses – that is, to be present when they testify against you – and the right to subpoena witnesses who will testify in your behalf.
Finally, and perhaps most crucially, the Sixth Amendment is the source of the guarantee of legal counsel – and if you cannot afford an attorney, one will be provided for you at the expense of the government.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The short-and-sweet Eighth Amendment is the source of three very important rights.
First, you have the right to reasonable bail. In other words, if bail is granted (and in abuse cases, save those resulting in the death of the victim, bail of some amount would most likely be granted), the amount you must pay cannot be so excessive as to be unreasonable.
Secondly, and along the same lines, if convicted you cannot be assessed unreasonable and excessive fines.
Finally, the punishment levied against you, if you are convicted, cannot be grossly disproportionate to the crime or cruel in nature.
Your Miranda Rights
You’ve most likely heard it so often by now – from television shows and movies – that you could recite it by heart. But do you know what it really means?
The source of the Miranda warnings is a U.S. Supreme Court case, Miranda v. Arizona. In that case opinion, the Supreme Court stated:
“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”
What does all that actually mean? And why do so many criminal defendants claim their rights were violated, if every law enforcement officer in the country has to specifically repeat these rights when questioning suspects?
The not-so-simple answer: Because most people just do not understand what, exactly, these rights mean in practical terms.
Let’s go over them one at a time. Here’s our scenario. “Sam” has been asked by an investigator to come to the station to “answer a few questions”.
True or False? You have the Right to Remain Silent
This is absolutely true. First and foremost, Sam doesn’t have to agree to anything the officer asks of him:
- He doesn’t have to go to the police station.
- He doesn’t have to agree to let the investigator ask him questions.
- He doesn’t have to answer the questions the investigator poses.
- He can – and should – say “No.”
If Sam says “No, I won’t do that,” what is the investigator going to do? What he should do is stop immediately, right there – ask no more questions, and leave Sam’s presence.
That’s what the “remaining silent” right means.
A common objection many people have to this is that if they remain silent they will automatically look guilty. If there were ever a time to not worry about “looking guilty”, this is it. Do not say anything that could later be misconstrued and used against you.
Unfortunately, this is the truth of the matter; if they are asking to speak to you in any capacity regarding a crime, you’re not going to talk them out of suspecting you. In fact, you could very easily talk them into suspecting you!
To many this may seem counterintuitive, but the absolute best advice here is to remain silent.
For more on why this is true, watch this video from a law school professor – it’s an excellent (if a bit lengthy) explanation of all the reasons why the right to remain silent is such a crucial one to take advantage of.
Right to Consult a Lawyer & Have Lawyer Present When Being Questioned
The second most important aspect of the Miranda warnings is this; the reminder that a person who does consent to being questioned by the police has the right to have his own lawyer with him while being questioned.
Once you’ve invoked your right to counsel, it stays invoked until you revoke it. (for that specific crime or case, at any rate).
The police cannot just wait until your lawyer leaves and then question you further.
The key here is that you must be explicit. You can’t just say “I’m wondering if I need a lawyer…” You can’t just ask “Do I need a lawyer?”
Affirmatively, and in no uncertain terms you must say, “I want a lawyer.”
Even after your lawyer shows up, you still don’t have to talk to the police. You could talk to your attorney and have her tell the officer “She’s not answering your questions.”
At that point, the officer has two options. (1) If she has probable cause, she can arrest and book you. (2) Otherwise, she must let you go.
Understanding Your Rights Is Key to Defending Yourself
Being accused of something that isn’t true is devastating. Yet having false accusations of abuse brought by someone you once loved is a tremendous and overwhelming hurdle. It’s imperative that you keep your rights in mind if the police or child welfare investigators knock on your door. Ask to see a warrant before you let them inside to search your home. Do not agree to be interviewed by an investigator.
And whatever else happens, don’t take anyone’s word, other than your attorney’s, at face value. You are now in their (CPS, DHS, police, etc.) world. They live and work there every day. You don’t. They interrogate people everyday – trying to make a case against unknowing members of the general public. You don’t.
So don’t make an ill-advised decision and go at this alone. Find an attorney (like me) and fight this thing the right way from the very beginning. False abuse charges will not go away on their own. Defend yourself and protect your future.